I didn’t know about this week’s topic until I received a press release from the governor’s office.
Since I don’t smoke marijuana, or even use the “medical stuff” for any reason, it caught my eye.
The sources used in this piece are the press release, and a story published in The Texas Tribune.
It also caught my eye since, off the top of my head, it appears the majority of Aransas County grand jury indictments are drug cases from the Aransas County Sheriff’s Office, and most of those deal with methamphetamine or heroin.
I emailed Aransas County District Attorney Kristen Barnebey the day the letter (referred to in the press release) was sent to county attorneys and district attorneys and asked her to provide a short statement regarding how her office handles marijuana cases. A response was not received as of press deadline Monday. That is not a condemnation, just a statement that I tried, thinking it would add to what ended up being my column this week.
So here goes …
Governor Greg Abbott, Lt. Governor Dan Patrick, Speaker Dennis Bonnen, and Attorney General Ken Paxton announced in a press release the four officials sent a letter Thursday, July 18 to all Texas District and County Attorneys (DAs) regarding recently dismissed marijuana possession cases and reports that some DAs will no longer prosecute misdemeanor marijuana cases.
In the letter, the four state leaders lay out how actions taken by certain DAs do not align with the passage of House Bill (HB) 1325 and represent a misunderstanding of how this law works. The leaders urge all DAs to uphold their oath and faithfully execute the law.
“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how HB 1325 works,” the letter states. “The power to change the law is legislative and rests with the Texas Legislature under the Texas Constitution. Since HB 1325 did not repeal the marijuana laws of Texas, as Judicial Branch Members, you should continue to enforce those laws by ‘faithfully executing the duties of the office of the (District or County Attorney), of the State of Texas, and ... to the best of (your) ability preserve, protect, and defend the Constitution and laws of the United States and of this State.’”
Marijuana, Hemp, and the 2018 Farm Bill
Congress’ 2018 Farm Bill differentiated hemp from marijuana by setting a Tetrahydrocannabinol (THC) threshold concentration of 0.3 percent. Anything above 0.3 percent is still considered marijuana and therefore generally illegal in Texas.
HB 1325 adopted the federal framework
The Farm Bill delegated primary authority over how to regulate the production and sale of hemp to the states. HB 1325 adopted the 0.3 percent THC standard (same as the Farm Bill) for distinguishing regulated hemp from prohibited marijuana.
Weeks after Texas prosecutors began dropping hundreds of marijuana cases, and stopped actively pursuing criminal charges because of complications that arose from legalizing hemp, the state’s leaders have stepped into the fray.
The aforementioned state leaders’ letter emphasized a new hemp law does not decriminalize marijuana. They wrote the prosecutors who have stepped back from marijuana charges after stating they cannot legally distinguish between legal hemp and marijuana without further testing - almost all of those in the state’s most 10 populous counties - misunderstand the new law.
The letter noted, “Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas.”
Texas Tribune story
Jolie McCullough wrote, in a Texas Tribune story, HB 1325, which legalized hemp and hemp-derived products like CBD oil, soared through the Texas Legislature this year and was signed into law June 10 by Abbott. Since then, numerous Republican and Democratic district attorneys have said they can no longer actively pursue misdemeanor marijuana cases because the new law changed the definition of marijuana. Before, marijuana was defined as parts of the cannabis plant, but now it is only those parts that contain more than 0.3 percent of THC, the psychoactive ingredient in marijuana that produces a high. Cannabis below that level is now hemp.
The attorneys and forensic experts have said equipment they have in public crime labs can’t accurately prove how much THC is in cannabis. Circumstantial evidence, like the smell of marijuana, no longer gives them enough credibility in court, where defendants could claim the substance they possessed was instead hemp.
“The plant is the plant, so the stuff smells the same no matter the THC concentration,” Lynn Garcia, general counsel with the Texas Forensic Science Commission, told The Texas Tribune.
But the letter to prosecutors says lab reports aren’t necessary in every marijuana case.
“Criminal cases may be prosecuted with lab tests or with the tried-and-true use of circumstantial evidence, a point some of you have already made clear in this context,” the letter states, pointing to a Tribune article on El Paso’s district attorney saying he will move forward on marijuana prosecution without lab reports.
The letter also points out companies and labs were already developing equipment to test THC concentration before HB 1325 was enacted, and competition will lead to declining costs - initial estimates of which were in the hundreds of thousands of dollars. No funds for additional marijuana testing were included in the passage of the hemp law.
Still, there is little action state leaders can take when they disagree with locally elected prosecutors. In Texas, the Attorney General’s Office can typically only get involved with prosecutions at the invitation of local leadership. And local prosecutors’ offices don’t rely on the state for the bulk of their budgets.
Responding to the letter, the district attorneys in the two most populous counties, both Democrats, made clear they will continue to require lab reports for low-level marijuana cases. Harris County District Attorney Kim Ogg, who said earlier this month her office will not prosecute low-level marijuana cases without a lab report, responded to the letter and said that it is up to the courts to interpret this law.
“Prosecutors have an ethical duty to be able to prove beyond a reasonable doubt, and laboratory confirmation in drug cases has long been required,” she said in a statement. “When a person’s liberty is at stake, juries demand nothing less.”
Dallas County District Attorney John Creuzot assured the governor the law did not confuse him, but the THC concentration is needed to establish a person’s guilt under the law.
“I have the responsibility to protect the rights of our citizens and ensure that people are not prosecuted for possessing substances that are legal,” he said in a statement.
The state’s hemp law was enacted to match the federal Farm Bill passed last year, which allowed for states to develop their own plans to regulate the production and sale of hemp. The Texas Department of Agriculture, under the state law, will regulate hemp, but the plan on how to do that has not yet been established.
That’s a lot of information I know. Apparently, if I were to start toting around marijuana, it would be best for me to carry a scale and tote weed around only in large cities.
Or, I could continue doing what I’m doing and not have to worry about it at all!
Until next week, have a good week.
Mike Probst can be reached at email@example.com.