Not all small pot busts the same across Texas
Troopers’ approach depends on location
AUSTIN — On Halloween last year, state troopers jailed a man in Montgomery County for having a small amount of marijuana.
That same day, Texas Highway Patrol cited a man for the same crime in a county 250 miles away but let him go.
The difference illustrates the patchwork way the Department of Public Safety has been enforcing marijuana laws after the state legalized hemp last summer and inadvertently threw cannabis prosecutions into chaos.
The agency is increasingly citing and releasing people caught with less than 4 ounces of marijuana, in line with a memo DPS issued last summer to provide clarity. In Harris County, for example, more than two-thirds of the 140 people state troopers charged with low-level possession last year were released after receiving a citation.
But in other parts of the state, records show, the Texas Highway Patrol continued to send most of those they arrested with small amounts of pot to jail, totaling hundreds of people.
The varied approach is frustrating advocates for criminal justice reform in a state that has resisted decriminalizing small amounts of marijuana, as 26 states already have done.
“We should try to have a uniform state law that treats possession of low levels of marijuana the same,” said state Sen. José Menéndez, D-San Antonio. “It’s just another example of our state needing to catch up with the times.”
DPS officials said any variance in arrests is based on direction from local prosecutors.
After the new hemp law complicated evidence testing for marijuana prosecutions, some jurisdictions began tossing out pot cases or refusing to take them without a lab test. Under the new law, marijuana is defined by its level of THC, the component that gives users a high. Any substance over 0.3 percent THC is considered illegal, while anything below that is deemed hemp.
“Our troopers are following the guidance provided in the July memo, along with the guidance given by their local prosecutors, to enforce the law through available statutory means — one of which is cite and release as an alternative to putting people in jail,” the Department of Public Safety said in a written statement.
While Texas has given a green light to a restrictive medicinal cannabis program, the Legislature has resisted efforts to decriminalize small amounts of the drug, despite an openness to the idea by Republican Gov. Greg Abbott.
A bill to reduce the penalties for those caught with small amounts of the drug cleared the Texas House last year but died in the Senate after facing opposition from law enforcement groups that argued it would become a “slippery slope” toward legalization and lead to increased crime.
The marijuana arrest records provided by DPS officials don’t indicate whether people were arrested on additional charges or have a criminal history, factors that could sway whether they were released or booked into jail. But the data do reveal patterns of enforcement across the state.
In Montgomery County, where the district attorney has said the office will continue prosecuting marijuana crimes, Texas Highway Patrol has made more than 250 arrests for small amounts of weed since July. In only five of those cases was the person released.
The county doesn’t have a system in place to cite and release offenders for marijuana crimes, said Mike Holley, first assistant district attorney of Montgomery County.
Instead, officers can arrest those caught with a small amount of pot and take them to jail, where people typically bond out within hours, he said. Officers can also confiscate the drug and issue a warrant for a later arrest, Holley said.
“We don’t direct DPS (officers’) behavior, we work with them,” he said. “If they bring us a marijuana case and it meets the elements of the offense, we generally accept those charges.”
It’s a different story in Harris and Nueces counties, where records show a majority of the DPS arrests now end in release or a diversion program. In Harris County, almost all of those who were released were sent to an anti-drug diversion program. In Nueces County, more than 1 out of every 2 arrests resulted in a release.
Prosecutors in those counties were among several who announced this summer they would stop accepting charges on lowlevel marijuana cases without a lab test to determine the THC level.
“Without any type of measuring, they cannot actually go forward and do anything with the cases,” said Cynthia Villarreal, cite and release coordinator for
Nueces County. “It’s mainly that we are declining the cases.”
Bexar County rolled out a similar cite and release policy last summer, though records show state troopers released roughly one-third of the 39 people they arrested in Bexar for low-level marijuana charges since July.
Heather Fazio, director of Texans for Responsible Marijuana Policy, said cite and release policies save people the trauma and trouble of going to jail. She added, however, that offenders must still show up in court to face their charges. Penalties can include up to a year in jail and steep fines.
“Most people can avoid doing jail time if they go to court, but you still face all the consequences that come along with a conviction, even just a record that you were charged,” Fazio said. “It can and will have a negative impact on your ability to live your life.”