Texas DAs struggle to weed out hemp rules
After lawmakers change definition, prosecutors now face evidence testing, legality challenges
As prosecutors across the state started grappling with the unexpected fallout from a newly passed hemp decriminalization law, Harris County District Attorney Kim Ogg on Tuesday announced plans to toss more than two dozen existing misdemeanor marijuana cases and stop filing charges in new ones.
The scramble stems from an agriculture bill passed by the Texas Legislature that inadvertently complicated evidence testing in cannabis cases — to the point that some jurisdictions have started throwing out weed cases in bulk while others say it’s still business as usual.
“The Legislature essentially changed the definition of marijuana with this legislation,” said Michael Kolenc, a spokesman for the district attorney’s office.
During the session earlier this year, lawmakers gave a green light to hemp — which comes from the same plant that yields marijuana — with House Bill 1325, ushering in a new definition of what’s pot and what’s not.
Now, anything with more than 0.3 percent THC is considered marijuana and still illegal, while anything under that is deemed legal hemp. That’s a boon for wouldbe hemp farmers who want to cash in on the new crop, but it presents problems for crime labs —including the Houston Forensic Science Center — that lack the pricey
equipment needed to draw that distinction.
“I get the potential financial benefit and we want that to happen,” said Houston Forensic Science Center President Dr. Peter Stout. “It’s just that this has now created a challenge: What do we do when what was marijuana on the 9th was no longer marijuana on the 10th?”
In Tarrant County, prosecutors tackled the problem by tossing more than 200 pot cases, while district attorneys in Montgomery, Galveston and Grimes counties all said they planned to continue filing charges even if there’s a delay.
According to Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, there’s no consensus statewide as to how prosecutors will deal with the issue moving forward.
‘All about hemp’
The changes come months after a 2018 farm bill provision regulated hemp at the federal level, sparking renewed interest among states hoping to get in on the burgeoning industry.
Even though Texas lawmakers decided this session not to reduce the penalties for low-level marijuana possession, both chambers pushed through two key cannabis bills: one to broaden the state’s medicinal cannabis program to include conditions such as cancer and multiple sclerosis, and the other to legalize and regulate hemp.
But the issue of testing THC levels didn’t attract the attention of criminal justice policy wonks and barely came up during public hearings on the hemp bill, which were held by the House and Senate agriculture committees but not committees that handle changes to the criminal code.
“We weren’t really following it as a criminal justice issue because it was all about hemp,” said Harris County Chief Public Defender Alex Bunin. “But it is now a criminal justice issue.”
At a House hearing in April, Brady Mills, who oversees the crime lab at the Texas Department of Public Safety, said staff would have to go through a credentialing process and purchase new equipment
to quantify THC levels. He didn’t say, however, what that would cost or how long it would take to get the new tests up and running. The agency didn’t respond to further questions Tuesday.
Unlike most bills that don’t take effect until September, the hemp legalization kicked in as soon as Republican Gov. Greg Abbott signed it into law on June 10, giving prosecutors and testing labs little time to prepare.
“The minute people understood there was a problem,” said Scott Henson, executive director of the nonprofit Just Liberty, “it was already law.”
Options limited
Until June 10, crime labs could rely on a quick chemical test to detect cannabinoids. When police sent in seized pot, lab staff would mix up the suspected drugs with a reagent and if the sample turned purple, they’d know it was likely marijuana.
At the same time, Stout said, they’d look for cystolithic hairs, little microscopic claws that are characteristic of weed.
When the sample in question was anything other than plant matter — oil, a vape pen or maybe gummy bears — labs could use a method called gas chromatography—mass spectrometry to detect THC, without figuring out the exact concentration.
“That’s all been sufficient to this point,” Stout said. “But now, something that was a test that took a few minutes is going to be complicated and take a few hours.”
Now, labs will have to extract THC from the sample, come up with a procedure and calibration curve, and figure out what instrument is best for testing, Stout said.
The existing equipment might potentially work for plant-based samples — but edibles will likely require a different kind of mass spectrometer, one that could cost $300,000 to $400,000, he said.
As of now, Stout said he only knows of one lab — NMS Labs in Pennsylvania — that’s accredited in Texas for that kind of testing. Others could purchase equipment, develop procedures and broaden their accreditation to follow suit, but the entire process could take months.
Mixed reactions
Last week, the Tarrant County District Attorney’s Office announced the decision to dismiss 235 misdemeanor marijuana cases filed since June 10, according to the Fort Worth Star-Telegram. This week, Harris County followed suit, tossing 26 cases and also announcing a policy shift moving forward.
“In order to follow the law as now enacted by the Texas Legislature and the Office of the Governor, the Harris County District Attorney’s Office will not accept criminal charges for Misdemeanor Possession of Marijuana without a lab test result proving that the evidence seized has a THC concentration of over .3%,” the district attorney’s office said in a statement Tuesday afternoon.
“Felony Marijuana charges will be evaluated on a case by case basis by our office. In the proper instances, such charges may be taken while lab test results are pending.”
In the past, prosecutors would accept charges long before testing, basing their initial case on the officer’s experience and training to determine that a seized green leaf was, in fact, pot. But by and large that standard didn’t matter, because most misdemeanor cases in Harris County already qualified for a diversion program.
Launched in early 2017 just after Ogg took office, the program lets alleged pot possessors with less than 4 ounces avoid any arrest, charges or court appearances if they agree to take a four-hour drug education class for $150. Though the county still prosecutes roughly 3,000 misdemeanor marijuana cases each year, the program has already saved more than 14,000 arrests, officials said in March.
Moving forward, according to Kolenc, would-be arrestees will still be referred to the education class. If they refuse, they’ll do so with the knowledge that they could face charges at a later date if the police come back with test results from a lab. Some drug cases that weren’t previously eligible for the diversion program — such as possession in a school zone — will now qualify for the four-hour class.
Prosecutors in Travis and Bexar counties weren’t ready to comment on the hemp brouhaha as of late Tuesday, but Montgomery District Attorney Brett Ligon pointedly criticized his colleagues who are choosing to toss cases and stop seeking charges.
“The effective prosecution of marijuana doesn’t need a solution,” he said. “Now, you have to jump through a few hoops, but there’s been an opportunistic exploitation of the hemp bill by agencies that don’t want to prosecute possession of marijuana cases.”
Though Ligon acknowledged that there could be a shortage of accredited labs in the immediate future, he said those delays didn’t justify “prosecutors’ abdication of responsibility.”
‘What’s the endgame?’
Despite the unintended chaos, the bill’s authors defended the measure.
“Before the Texas Hemp Bill passed, hemp-derived products could enter our state and be bought and sold with little to no oversight,” said Sen. Charles Perry, R-Lubbock, who carried the bill in the state Senate. “In fact, the 2018 Farm Bill prohibits states from restricting the transportation of hemp with less than 0.3 percent THC. With the passage of the Texas Hemp Bill, we now have proper regulations in place to protect Texas consumers at every turn.”
A spokesman for Rep. Tracy King, D-Batesville, the bill’s author, said he believes there are “ample safeguards in place to safely and effectively regulate the production, transportation, and sale of hemp and hemp-derived products in accordance with the descheduling of hemp with a THC concentration of .3 percent or less from the Controlled Substance Act by the 2018 U.S. Farm Bill.”
Republican Lt. Gov. Dan Patrick, who has been an opponent of loosening state marijuana laws, didn’t respond to a request for comment. Neither did Abbott or House Speaker Dennis Bonnen, RAngleton.
While Ligon floated the idea of calling a special session to fix the matter legislatively, he also highlighted possible funding mechanisms to help pay for the staffing and equipment the new testing could require.
“The governor can release discretionary funds,” he said, “to either hurry up and buy the equipment or for DPS to pay for private testing.”
But members of the defense bar saw it differently, and Harris County Criminal Lawyers Association President Neal Davis advocated for doing nothing.
“Why don’t we just stop prosecuting them?” he asked. “What’s the endgame here? To tell people who smoke marijuana that they shouldn’t smoke marijuana in a class? People who smoke marijuana are fully aware, I suspect, of whatever advantages and disadvantages smoking marijuana are.”