New Hemp Law in Texas Frees Hundreds of Pot Offenders From Prosecution
Cops must now prove that minor pot offenders are actually in possession of weed (not hemp) prior to arrest. Most police departments, however, lack the equipment to prove this.
Published on July 9, 2019

When Texas Governor Greg Abbott signed a new law legalizing the cultivation and use of hemp and CBD, he didn't expect that he'd also be decriminalizing minor cannabis possession in the Lone Star State.

Last month, Texas became state number 43 to legalize hemp and all of its byproducts, including hemp-derived CBD. In accordance with the 2018 Farm Bill, which ended the federal prohibition of hemp, Texas' new law legalizes all cannabis plants and byproducts that contain less than 0.3 percent THC content. Cannabis plants with higher THC levels are still considered to be marijuana, and remain prohibited.

This new law is great news for the state's burgeoning CBD industry. But it's had the unintended consequence of making it more difficult for cops to bust minor pot offenders. In order to arrest someone for cannabis possession, cops must now prove that the substance they confiscated is actually marijuana — not hemp. To do this, police must be able to test the THC level in pot they have seized. But most local police departments do not have this technology.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” the state District and County Attorneys Association said in a recent advisory.

For most counties, the only immediate solution would be to send confiscated weed to private labs for testing. ABC 13 Investigates found that these tests can range from $200 to $750 per case. Last year, Texas district attorneys prosecuted nearly 70,000 misdemeanor pot possession cases. If prosecutors were to get attempt to get private THC lab testing for a similar number of cases this year, the cost would be over $35 million.

Texas crime labs could also directly purchase the equipment needed to make these THC tests themselves. The cost per lab could be as much as $500,000, however, and at least 20 such labs would be needed to cover the whole state, according to Peter Stout, CEO of the crime lab used by the Houston Police Department. 

The new law took effect immediately on June 10th, the day that Abbott signed it. Without time to draft new policies or decide on new THC testing practices, many state prosecutors have simply decided to dismiss minor pot convictions in the immediate future. 

“In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions … will not accept criminal charges for Misdemeanor Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over .3%,” district attorneys from Harris, Fort Bend, Bexar and Nueces counties wrote in a joint policy statement, according to the Texas Tribune.

“I will also be informing the law enforcement agencies by letter not to file marijuana or THC felony cases without consulting with the DA’s Office first to determine whether the necessary lab testing can be obtained,” Travis County District Attorney Margaret Moore said in a statement, the Tribune reports.

Prosecutors in Fort Worth have already dismissed hundreds of minor pot possession cases. Fort Bend, Montgomery, and Walker counties are reportedly putting cases on hold while they develop the necessary testing protocol. Tarrant County dismissed 234 cases, although these can be refiled within the next two years if the county finds an affordable way to test THC levels. Harris County is allowing minor pot offenders to take a four-hour education class rather than face criminal charges.

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Chris Moore
Chris Moore is a New York-based writer who has written for Mass Appeal while also mixing records and producing electronic music.
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