Plan pins charges for pot on tests
Four Texas DAs say lab work needed before taking cases
As Texas officials untangle the mess from a legislative snafu that redefined marijuana, four district attorneys across the state Wednesday released a shared plan to stop accepting charges on lowlevel pot cases without a lab test.
The policy statement — by elected prosecutors from Nueces, Bexar, Fort Bend and Harris counties — came one day after Harris County District Attorney Kim Ogg announced her plans to dismiss roughly two dozen pending lowlevel pot cases and stop prosecuting future ones in light of
a new state law that legalized hemp and inadvertently complicated weed testing.
District and county attorneys in Southeast and East Texas said Wednesday that they were developing plans and looking for more information from lawmakers but didn’t hint that they planned to drop misdemeanor possession cases any time soon.
During the legislative session that ended in May, lawmakers approved industrial hemp — which comes from the same plant as marijuana — with House Bill 1325, ushering in a new definition of what counts as pot.
Now, anything with more than 0.3 percent THC is considered illegal marijuana, and anything under that is deemed legal hemp. The distinction follows a definition adopted in the 2018 U.S. farm bill, which legalized hemp federally and sparked interest from state lawmakers who wanted to do the same in Texas.
Prosecutors react
The new law is good news for the hemp industry and aspiring farmers who want to cash in, but it presents problems for crime labs — including Texas Department of Public Safety labs and the Houston Forensic Science Center — that lack the pricey equipment needed to draw that distinction. The necessary machinery could cost upward of $300,000, according to Dr. Peter Stout, president of the HFSC.
Unlike most new laws, the Texas hemp law took effect immediately June 10, and prosecutors quickly realized it could pose a problem. Some — including those in Grimes, Galveston and Montgomery counties — vowed to continue prosecuting pot cases, even if it meant waiting for labs to catch up.
“This office will continue to prosecute marijuana cases,” Galveston County District Attorney Jack Roady wrote in all bold in a statement Tuesday. “My office will commit to filing all charges where the substance has been properly analyzed by the lab to be marijuana, even if that charge comes at a later date.”
But others took a different approach. Tarrant County District Attorney Sharen Wilson, a Republican, threw out more than 200 marijuana cases, according to the Fort Worth Star-Telegram.
And now Democrats Brian Middleton in Fort Bend, Mark Gonzalez in Corpus Christi, Joe Gonzales in San Antonio and Ogg in Houston have agreed to stop accepting charges without a lab test.
“The problem isn’t with the law and the state’s desire to legalize agricultural hemp production,” Middleton said in a written statement. “The issue is that the law was enacted immediately and without any of the infrastructure in place to regulate the legal production of hemp, nor the ability of the state’s own scientific labs to distinguish between what’s legal and what’s not. Unfortunately, the unintended consequence of the law renders prosecution of marijuana offenses impossible until the infrastructure and scientific laboratories are capable of performing the analysis necessary to distinguish hemp from marijuana.”
The shared policy statement echoes Ogg’s position from Tuesday, in announcing plans for her office.
“In order to follow the law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions represented by the undersigned elected District Attorneys 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 statement said.
“Felony Marijuana charges will be evaluated on a case by case basis by our respective offices. In the proper instances, such charges may be taken while lab test results are pending.”
Travis County District Attorney Margaret Moore announced Wednesday that she was dismissing 32 felony cases of possession or delivery of marijuana or THC based on the new law. She said neither the Austin Police Department nor the Texas Department of Public Safety has the capability to do the necessary analysis.
A DPS spokeswoman said the agency is “still working to fully understand the statute’s impact, the increased caseload it will generate and additional resources necessary to meet the new demands.”
But despite the prosecutors’ shared plans, police and sheriffs can choose to make marijuana arrests. Now, it’ll just take longer if district attorneys want to bring those cases in court.
Testing challenges
In the past, labs did quick chemical tests for cannabinoids and looked for characteristic hairs that should be present on any pot plants. That only took a few minutes, according to Stout. When the sample in question was anything other than plant matter — maybe brownies or a vape pen — labs relied on something called gas chromatography-mass spectrometry to detect THC, without figuring out the exact concentration.
But now, labs will have to extract THC from the sample, come up with a procedure and calibration curve, figure out what instrument is best for testing and expand their accreditation. It might be possible to use existing equipment for plantbased samples, but Stout said testing edibles and oils will require the purchase of expensive new equipment.
As of now, Stout said he knows of one lab — NMS Labs in Pennsylvania — that’s accredited in Texas for the more precise testing required. Others could purchase equipment, develop procedures and broaden their accreditation to follow suit, but the process could take months. Still, the lawmakers who backed and authored the new measure defended it.
“I’m not saying this is not a serious issue,” said Rep. James White, R-Hillister. “But there are ways that we can get the instrumentation — you’ve got civil asset forfeiture funds, you’ve got the governor’s criminal justice grant program.”
The confusion has inspired some saber-rattling for continued enforcement and further regulation of anything involving cannabis, but Lisa Pittman — an attorney specializing in cannabis law— said this moment is encouraging for a fledgling industry in Texas. Entrepreneurs will face a regulatory landscape that basically treats hemp products as “mini-marijuana,” but the market will be a free-for-all while agencies hammer out regulations, said Pittman, head of the Texas office of Coloradobased Tannenbaum, Trost & Burk and described by Houstonia Magazine as “the first lady of Texas Cannabis law.”
“It should give investors a chance to gather steam and vendors to get their product out there before regulations might hamper their market shares,” Pittman said.
She said she has heard from Texas investors and companies established in other states looking to cash in on the three- to five- year boom of hemp production in Texas before supply levels it out to a commodity. As for prosecutors and law enforcement, she isn’t buying claims they were caught off-guard by the new law.
“There were over 40 medical marijuana bills that were presented this year, so they were on notice,” Pittman said. “The Texas crime lab has already had shortages, so they should have been more prepared for what an eventual change in the law would mean.” Allie Morris, Jacob Dick and Emilie Eaton contributed to this report.