Texas may have accidentally legalized marijuana

[Viper 12,101]

tl;dr - Texas legalized hemp, but police departments don't have the tools to differentiate between hemp and marijuana so prosecutors are dismissing small weed cases because they are not worth the cost.

 

https://www.texastribune.org/2019/07/30/texas-lawmakers-warned-hemp-law-marijuana/

Quote

Texas was warned its hemp law would complicate marijuana prosecutions. Lawmakers didn't listen.

Crime labs repeatedly told lawmakers and budget officials that they couldn't distinguish between hemp and marijuana without new testing resources. The issue got almost no attention.

BY JOLIE MCCULLOUGH JULY 30, 20197 HOURS AGO

Months before Texas district attorneys started dropping or delaying low-level marijuana cases, state lawmakers were told that a well-liked bill to legalize hemp was going to complicate pot prosecutions.

The warnings fell flat.

In early April, members of the Texas House Agriculture and Livestock Committee sat through two hours of testimony supporting a bill to legalize and regulate hemp and its derivatives, like CBD oil. Most of the discussion focused on farming and regulatory procedures. Near the end of the hearing, though, the Texas Department of Public Safety’s crime lab director, Brady Mills, was brought up to the microphone to address any law enforcement concerns the legislators may have overlooked.

Speaking in largely technical terms, Mills told the committee that DPS crime labs, which test suspected drugs for prosecutors across the state, did not have a way to differentiate what would become legal hemp under the bill from still illegal marijuana. He said the labs would need new equipment and time for internal reviews before they could begin testing for the difference.

Without this test, a new wrinkle was about to form for prosecutors pursuing marijuana crimes across the state. But Mills’ words aroused no concern.

“Alright,” responded the committee’s chairman, state Rep. Drew Springer, R-Muenster. “Members, any questions?”

The five other committee members sitting on the dais were silent and still, some with downcast eyes. The bill’s author, state Rep. Tracy King, D-Batesville, sat to the side, looking down with his face in his hand, as he had during Mills’ testimony. The director was dismissed, and the committee later approved the bill unanimously.

As the legislation moved through the Capitol, some questions did come up over how to ensure that Texans wouldn’t begin farming marijuana instead of hemp, but lawmakers repeatedly affirmed that the bill did not decriminalize marijuana in any way.

Largely absent from legislative discussions were concerns over the hemp law affecting the practicability of prosecuting marijuana cases unrelated to hemp farming.

Yet it wasn’t just Mills who outlined the problem prosecutors would have distinguishing hemp from marijuana. Other states and the federal government have already run into similar issues. DPS repeatedly told state budget officials the hemp bill would come with a hefty price tag for additional drug testing in marijuana cases. And a Houston crime lab employee told King’s office that without funds to allow for new lab testing, the legislation would “essentially legalize marijuana.”

The requested funds and the employee’s concern were both rejected. Perry later told The Texas Tribune that labs were trying to use the bill as a way to squeeze more money out of the Legislature.

Overall, the bill soared through the Texas Legislature with near-unanimous support and plenty of smiles and back-patting. Then, shortly after Gov. Greg Abbott signed the bill into law June 10, numerous district attorneys across the state began dropping hundreds of low-level marijuana cases and rejecting new ones without further testing — which, as Mills said, is currently nonexistent in state crime labs.

Republican state leaders chastised the prosecutors, and Perry said district attorneys halting pot prosecution, both Democrats and Republicans, are using the law as political cover to essentially legalize the drug in their districts. But the prosecutors deny that, saying the law now requires them to have more involved lab testing to prove beyond a reasonable doubt that something is pot. And the Houston crime lab employee said lawmakers should have seen this coming.

“They knew everything, including the fact that there was going to be a possibility that prosecution was not going to be able to move forward,” said Ramit Plushnick-Masti, a spokesperson for the Houston Forensic Science Center, which runs the crime lab used by Houston police. “Nobody wanted to hear that.”

Uninvolved prosecutors

Texas’ House Bill 1325 was filed in reaction to the U.S. farm bill passed last year.That bill legalized hemp on a federal level and allowed for states to submit regulatory procedures for growing, shipping and selling hemp. That is the crux of HB 1325, but it also mirrored the federal bill by changing the state’s legal definition of marijuana from cannabis to cannabis that contains more than 0.3% of tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.

Before the law change, crime labs testing for marijuana simply checked for the presence of cannabinoids to designate something as cannabis and, therefore, marijuana. Measuring the level of THC requires different testing, currently unavailable in state-run labs. The definition change also cast doubt over circumstantial evidence, like the substance’s smell or look, which was often the only type of evidence presented in low-level marijuana cases.

Although the bill changed the Texas statute that defines illegal drugs, it didn’t get the attention of many people who work in the criminal justice system. Some officials have said that’s because it was moving through agricultural committees, which prosecutors don’t tend to follow.

“We did not hear a loud local voice from crime labs or the district attorney association, probably because it’s an ag bill — I assume it didn’t hit their radar,” Perry told the Tribune.

The district attorney’s office in Harris County echoed that point, stating it found out the definition of marijuana had changed from its local crime lab days after the law went into effect. Some knew and stayed silent. Other prosecutors and a spokesman for the Texas District and County Attorneys Association, which often lobbies for prosecutors in criminal justice committee hearings, said they knew the statute changed but didn’t realize labs were unable to test for the difference until the bill was passed. The association posted an advisory for prosecutors about new complications surrounding marijuana cases two weeks after Abbott signed the hemp bill.

“In hindsight, if it had been explained to us or some of the groups that represent law enforcement at the Capitol who are more experienced in effecting change there, it’s possible we might have been able to get the attention of people who could have done something about it,” said Shannon Edmonds, director of governmental relations for the association.

Cash for the crime labs

Although the lack of legislative involvement from prosecutors may have contributed to the bill moving so smoothly through the Legislature, the crime labs had been raising the alarm. But their arguments that new testing would be needed to distinguish between marijuana and hemp came with requests for money, which were rejected.

Throughout the five-month legislative session, DPS submitted multiple cost estimates for HB 1325 to the Legislative Budget Board. Agencies affected by legislation regularly submit estimates to the board, which then analyzes and prepares for lawmakers written estimates of how much money the government can lose or gain from bills. This fiscal note is updated as the bill changes.

DPS submitted three estimates to the board as the bill changed in the legislative process, all of which were for millions of dollars. None of the costs were included in the fiscal notes.

The agency’s first estimate — $5.5 million for new equipment, training and about 25 new employees — focused on increased testing to differentiate between marijuana and hemp in typical criminal proceedings.

“DPS can only speculate on the volume of cases where a defendant might claim the substance for which they are arrested is actually hemp,” explains the estimate, which the Tribune obtained. “Also, DPS labs do not currently routinely test marihuana for misdemeanor charges unless the prosecutor or law enforcement officer makes a special request because it is needed for trial.”

The estimate noted that there were more than 80,000 misdemeanor marijuana arrests in Texas last year and also pointed out that measuring THC levels would take more time than previous lab tests for marijuana.

But state budget analysts excluded such requests from the fiscal note. That means the requests for money to test whether something is marijuana or hemp never made it to lawmakers reviewing the bill. A spokesperson for the Legislative Budget Board said this month that DPS estimates for marijuana tests paired with such arrests were left out because they included predictions based on ongoing trends unrelated to the bill.

The fiscal note attached to the bill did include nonspecific predictions of potential earnings from regulating hemp. The board spokesperson also noted that DPS crime lab services got a $50 million boost this legislative session. Those funds, to cover the next two years, were given to increase crime lab capacity overall by hiring more than 100 new positions and, notably, prioritize the testing of backlogged rape kits.

None of the additional $50 million was earmarked specifically for marijuana testing. Plushnick-Masti, with the Houston Forensic Science Center, said the new funds were pushed through because DPS was “already underwater” before HB 1325 complicated marijuana prosecutions. Since at least April, she spoke repeatedly with staffers for King, the bill’s author, to raise concerns about passing HB 1325 without additional funding, according to emails obtained by the Tribune.

In early May, she sent an email to emphasize that money requested by DPS in its cost estimate — and more resources for local crime labs — were imperative.

“If crime labs are unable to differentiate currently between marijuana and hemp, [HB] 1325 will essentially legalize marijuana,” she wrote.

King’s legislative director, Melissa O'Reilly, replied that budget officials had said the department's cost estimates were speculative or secondary to the bill’s intent to legalize growing and transporting hemp.

“We disagree with your characterization that HB 1325 will in any way legalize marijuana,” O'Reilly added.

King did not respond to the Tribune's questions about the hemp law or emails.

After initial confusion over what type of testing to procure and how much it would cost, a DPS spokesperson said last week that the agency will use its existing budget to establish and validate a test that can differentiate between THC levels in hemp and marijuana. The process is expected to take about six months.

What happens now?

Perry, who carried the bill through the Senate, portrayed the lack of state testing as the regular implementation phase of a law. Although he said the law did not stop or discourage marijuana prosecution, he added that there are still rules for hemp that need to be submitted and approved by the U.S. Department of Agriculture. He suggested the state or the USDA could still tweak the regulations to specify that hemp can’t be smoked, allowing for more circumstantial evidence in prosecutions. That proposal is moving through North Carolina’s legislature after that state's complications from legalizing hemp.

“We’ll see how this plays out,” Perry said. “If we come back next legislative session and find out that there are some other things that we didn’t see coming, like a lot of times ... we’ll tweak it.”

In the meantime, one question remains: With more time-consuming tests, what resources are prosecutors and local crime labs going to use on marijuana testing? Edmonds with the prosecutors association said at a training this month that without additional funds, “it’s a zero-sum game.”

“Every time you request a lab report from DPS or your local lab in a marijuana case, that’s another case that is sitting on the shelf,” he said.

Perry said that with a free-market approach, more private labs will become accredited to test cases for law enforcement, lowering the expected costs. He said prosecutors are using the hemp law as a way to skip out on prosecuting marijuana cases for political reasons, noting many urban prosecutors had already used diversion programs to prevent convictions in some low-level marijuana cases.

But in conservative Denton County, First Assistant District Attorney Jamie Beck quickly shot down suggestions that her office has stopped pursuing marijuana prosecutions because of political motivations.

“No, no — our intention is not to decriminalize or stop prosecuting marijuana cases,” she said.

The county stopped filing new misdemeanor marijuana cases after the law changed unless the arresting agency can also provide a lab report showing the substance has a THC level over 0.3%. Felony cases are being evaluated on a case-by-case basis, she said. But since government labs can’t perform those tests yet, she said the law enforcement agencies will have to pay for testing by shipping samples off to private labs.

“Police agencies will spend for felonies,” she said. “We have a feeling that they won’t on the lower level.”

 

Edited July 30, 2019 by Viper

[Asithappens 974]

In summation: Texas politicians are even dumber than you thought.

But this time, it has a positive outcome.

[phdhorn 6,224]

Meh, my guess is that it'll be pretty much like it is now... in rural areas, where there is more coverage (i.e. % of people/crimes to law enforcement personnel/$), they'll continue to prosecute as normal.  In urban areas, which are hard-pressed for manpower/resources ($$), a lot of those cases will get dismissed/negotiated down, as they actually do now.

Edited July 30, 2019 by phdhorn

[Asithappens 974]

1 minute ago, phdhorn said:

Meh, my guess is that it'll be pretty much like it is now... in rural areas, where there is more coverage (i.e. % of people/crimes to law enforcement personnel/$), they'll continue to prosecute as normal.  In urban areas, which are hard-pressed for manpower/resources ($$), a lot of those cases will get dismissed/negotiated down, as they actually do now.

So even if the defense can argue that there isn't sufficient proof that the item is, in fact, dope things won't change much? 

Maybe. I doubt it, though. And El Paso's response was pretty dim, imo. This is a rather big "out" for defendants. 

[phdhorn 6,224]

Yep, it won't change much because a lot of those cases, especially for first-timers or neophytes, either get dismissed or bargained down.

It sounds good and funny to a degree, but in real life, I don't think it's going to change much.  Maybe after some cases are litigated with this new law, but it's small potatoes for attorneys.  Just my thoughts...

[BabaYaga 15,286]

We're so fucked....as our state descends into chaos and madness

[Liquor and Poker 3,659]

I think this is, as the bill sponsor said, a budgetary fight disguised as a problem. DPS has always claimed it was broke, and only gets more funding when it can point to a “need” or “crisis.”

[Liquor and Poker 3,659]

I do like the idea that it might kill off that bullshit cop testimony that he  “saw a substance” or “smelled something” that was “consistent with marijuana” as the sole evidence for convictions.  They don’t do that for any other drug (for obvious reasons).  It made these cases so much easier to try and get easy convictions.  If pot cases require routine analysis testing like cocaine and heroin, maybe you will see them de-prioritized as quick winners.

I haven’t thought about it before now, but also seemingly out the window is the idea that they can weigh a grown whole plant and say you possessed 3 lbs or something like that.  

 

 

[Asithappens 974]

48 minutes ago, phdhorn said:

Yep, it won't change much because a lot of those cases, especially for first-timers or neophytes, either get dismissed or bargained down.

It sounds good and funny to a degree, but in real life, I don't think it's going to change much.  Maybe after some cases are litigated with this new law, but it's small potatoes for attorneys.  Just my thoughts...

Why bargain a case down if the state can't convict?

Even neophytes can get a lawyer.

[Dahobbs 17,522]

1 hour ago, phdhorn said:

Yep, it won't change much because a lot of those cases, especially for first-timers or neophytes, either get dismissed or bargained down.

It sounds good and funny to a degree, but in real life, I don't think it's going to change much.  Maybe after some cases are litigated with this new law, but it's small potatoes for attorneys.  Just my thoughts...

It increases bargaining power substantially for defendants. It may not change much in counties where possession is basically a fine now, but it is a pretty big barrier to proving guilt beyond a reasonable doubt. In fact, it seems to be a complete failure of proof.  

[NotActuallyALonghorn 4,974]

It sounds like prosecutors could still send weed off to private labs to verify THC levels, but that's a big financial hurdle to potentially get a low level conviction. I have little doubt that there will be a few willing to do so, but it is definitely increases the bargaining power of the accused. 

[Guest Lobo]

Most Texas Lawmakers, "I guess this is okay, but we still get to purposely lock up brown and black people and keep them from voting in the future, right?"  

[Asithappens 974]

4 minutes ago, Lobo said:

Most Texas Lawmakers, "I guess this is okay, but we still get to purposely lock up brown and black people and keep them from voting in the future, right?"  

Exactly, and now those texas lawmakers have to contend with browns and blacks possibly being let out of jail via bail reform.

Their heads must be exploding. 

[bernorange 8,359]

The "war on drugs" is immoral, so good.

[El Diablo 4,232]

It's just good men and women who want to go home to their families at night out there on the front lines enforcing the will of the people.

Right?

[Chooky 13,307]

So the tables got flipped and it's now about to be wildly expensive to prosecute low level, non violent crime as opposed to people defending themselves against it? Pardon me if I don't lose a moment of sleep over that conundrum. 

[relapse98 634]

3 hours ago, Viper said:

tl;dr - Texas legalized hemp, but police departments don't have the tools to differentiate between hemp and marijuana so prosecutors are dismissing small weed cases because they are not worth the cost.

They'll figure it out. Where there is a will (government money) there is a way.

March 26: The DEA is Searching for Field Test Kits to Differentiate Hemp and Marijuana

And then 2 weeks later...

April 9: Digipath Files Patent Application for Test to Distinguish Hemp from Drug-type Cannabis

That Digipath patent is for field test kits. There may be a temporary lag in them testing, but it will be very temporary. Digipath is targeting commercial availability in late 2019/early 2020. The legislature moved a bit fast, but it feels a bit too much is being made out of the fact that they "legalized marijuana" (ignoring the fact that marijuana is still not legal in a single state in the United States since it's illegal federally. If it was legal - dispensers etc. wouldn't find it damn near impossible to find a bank).

 

Edited July 30, 2019 by relapse98

[immortal13 4,059]

Why even procure a lawyer? Just make the argument in court that it was hemp/cbd bud and let them prove otherwise. /profit

[conVINCEd 21,469]

41 minutes ago, immortal13 said:

Why even procure a lawyer? Just make the argument in court that it was hemp/cbd bud and let them prove otherwise. /profit

Have you ever been to Williamson County?

[immortal13 4,059]

2 minutes ago, conVINCEd said:

Have you ever been to Williamson County?

Fortunately, no...

[GringoSalado 1,651]

4 hours ago, Asithappens said:

El Paso's response was pretty dim, imo. This is a rather big "out" for defendants. 

?

[immortal13 4,059]

5 hours ago, GringoSalado said:

?

They are going to continue to prosecute small marijuana possession cases

[RPM 26,315]

0% chance Wise County doesn't prosecute even the tiniest mj possession.

[Chooky 13,307]

Excuse me testing sirs, but could you guys charge us an absurd amount of money to test this little nug and tell us if it's rope or dope so we'll have a better chance at ruining this guy's life? 

[smokebomb 357]

Texas Monthly now has a story about it:

https://www.texasmonthly.com/politics/heres-what-texas-das-think-of-the-new-hemp-law-that-accidentally-decriminalized-pot/

Quote

Hemp is now legal in Texas, thanks to House Bill 1325, which sailed through the Legislature earlier this year. Supporters hailed hemp’s potential economic benefits as a drought-resistant cash crop from which products like clothing and twine, protein powder, moisturizers, and essential oils can be made.

Even though hemp and marijuana come from the same plant, Cannabis sativa, lawmakers had little issue with legalizing hemp because the two have an important inherent difference. You can’t get high from smoking or ingesting hemp or hemp products, because its THC content is just 0.3 percent, whereas marijuana usually contains between 5 and 25 percent of the mind-altering agent. But the Legislature has a knack for inadvertently screwing up a good thing. In the same session that lawmakers managed to temporarily turn every Texan into a plumber, they also effectively decriminalized hemp and marijuana.

HB 1325 essentially changed how the state defines marijuana by legalizing any substances from the cannabis plant with 0.3 percent or less THC content. That unwittingly placed the burden on prosecutors to prove a substance is marijuana based solely on its THC level. Few local agencies in Texas are outfitted with the equipment required to determine THC levels, and outsourcing those tests could prove costly. As a result, some district attorneys are dropping misdemeanor marijuana cases altogether, even as the state’s top leaders sent a letter to prosecutors earlier this month to emphasize that the drug remains very much illegal in Texas.

Still, the five most populous counties—Harris, Dallas, Travis, Tarrant, and Bexar—have announced that they’re dismissing hundreds of charges and will decline to prosecute minor marijuana possession in the future. While the reactions of prosecutors in the big cities have garnered most of the headlines, Texas Monthly reached out to prosecutors for every county in Texas seeking to find out how they plan to cope with this new legal landscape.

Officials with 93 of Texas’s 254 counties responded to inquiries. (Officials from the remaining 161 counties either did not respond or declined to comment.) Twenty-six counties—a mix of urban, suburban, and rural areas—are no longer prosecuting low-level marijuana cases as a result of the new law. Nine of the state’s twelve most populated counties—representing nearly 15 million people, or more than half of Texas’s total population—will no longer prosecute low-level marijuana cases, and some have pledged to dismiss pending cases. However, almost three-quarters of the counties we contacted, 67 in all, indicated they will continue business as usual.

Perhaps reluctant to shed a tough-on-crime approach popular among Texas conservatives, some officials in smaller counties were critical of their urban peers dismissing cases. Bill Helwig, DA of Yoakum County, a square patch of West Texas with population 8,500, said the new law likely won’t affect how marijuana cases are prosecuted there. “We’re a very conservative county, and I believe that rural counties may view the situation from a slightly different set of glasses,” he said.

Kendall County DA Nicole Bishop, whose county just north of San Antonio has a population of about 45,000, likewise intends to continue misdemeanor marijuana prosecutions. Her office also will request restitution from any defendants who insist on lab testing, including seeking more severe punishment in plea deals. “I will not act as an unelected legislator by unilaterally deciding what laws I deem worth it to enforce,” she said. “I will not abandon my sworn duty to follow the law.”

Yet the new law could disproportionately strain the resources of these smaller counties, which are more likely to lack the equipment and the funds to outsource testing. In Beaumont’s Jefferson County, for example, the crime lab recently requested nearly $500,000 for new equipment, employees, and training for distinguishing marijuana from hemp, according to the Beaumont Enterprise. Steve Houston, the DA in Brewster County in far West Texas, said the Legislature created another unfunded mandate for local governments. “It requires testing, and they didn’t provide funding for testing,” Houston told Texas Monthly. “I’m not paying for a bunch of testing.”

This month’s letter to prosecutors from Governor Greg Abbott, Lieutenant Governor Dan Patrick, attorney general Ken Paxton, and House speaker Dennis Bonnen both disputed claims about the high costs of lab tests and downplayed the necessity for any additional testing, suggesting that DAs use “the tried and true use of circumstantial evidence.”

Several DAs pushed back against these assertions. Hardeman County DA Staley Heatly said the fact that hemp and marijuana come from the same plant makes testing “absolutely” a must. Patrick Wilson of Ellis County, where Waxahachie is the seat, called the governor’s advice misguided. “There is no circumstantial evidence of which I am aware that would prove the chemical makeup of a substance beyond a reasonable doubt,” he said.

The variety of responses among prosecutors seems to have been a consequence unforeseen by many of the legislators who voted for HB 1325. “It’s one of those things that we did and now we’re looking back saying, ‘Well, we didn’t think about that,’” state representative J.D. Sheffield, R-Gatesville, told Waco’s KWTX.

But according to a Fort Worth Star-Telegram editorial, lawmakers received some inkling of the potential confusion the bill could cause. At a hearing in April of the House Agriculture Committee, Department of Public Safety crime lab director Brady Mills explained that his lab would need to buy new equipment for testing THC levels. There were no follow-up questions from the committee members.

“I’ve never seen a drug case, marijuana or any other type of drug, prosecuted without a lab report,” Hamilton County District Attorney Adam Sibley, a former defense attorney, told Texas Monthly. “I don’t think it’s a good idea for us to go to court and ask our juries to convict people when I can’t put a lab person on a witness stand to definitively say, ‘Yes, this substance is illegal.’”

Charles Mendeke, the sheriff in Uvalde County, was more direct in his criticism. “It is the worst bill they have ever passed,” he told the Uvalde Leader-News earlier this month. “They passed it without rules or regulations established, and it has created a law enforcement nightmare.”

Map from the article:

Edited July 31, 2019 by smokebomb

[RPM 26,315]

Wise and Jack. Shocked, I'm not.

[Armybrat 40,822]

Looks like Wilco ain’t quite the nazi shithole y’all keep bitching about.

[Steel Shank 9,421]

1 hour ago, Armybrat said:

Looks like Wilco ain’t quite the nazi shithole y’all keep bitching about.

Slow your roll, AB! Wilco still has plenty of nazi shithole shenanigans up their sleave.

[Bevo Num1 1,011]

Texas Monthly now has a story about it:
https://www.texasmonthly.com/politics/heres-what-texas-das-think-of-the-new-hemp-law-that-accidentally-decriminalized-pot/

Hemp is now legal in Texas, thanks to House Bill 1325, which sailed through the Legislature earlier this year. Supporters hailed hemp’s potential economic benefits as a drought-resistant cash crop from which products like clothing and twine, protein powder, moisturizers, and essential oils can be made.
Even though hemp and marijuana come from the same plant, Cannabis sativa, lawmakers had little issue with legalizing hemp because the two have an important inherent difference. You can’t get high from smoking or ingesting hemp or hemp products, because its THC content is just 0.3 percent, whereas marijuana usually contains between 5 and 25 percent of the mind-altering agent. But the Legislature has a knack for inadvertently screwing up a good thing. In the same session that lawmakers managed to temporarily turn every Texan into a plumber, they also effectively decriminalized hemp and marijuana.
HB 1325 essentially changed how the state defines marijuana by legalizing any substances from the cannabis plant with 0.3 percent or less THC content. That unwittingly placed the burden on prosecutors to prove a substance is marijuana based solely on its THC level. Few local agencies in Texas are outfitted with the equipment required to determine THC levels, and outsourcing those tests could prove costly. As a result, some district attorneys are dropping misdemeanor marijuana cases altogether, even as the state’s top leaders sent a letter to prosecutors earlier this month to emphasize that the drug remains very much illegal in Texas.
Still, the five most populous counties—Harris, Dallas, Travis, Tarrant, and Bexar—have announced that they’re dismissing hundreds of charges and will decline to prosecute minor marijuana possession in the future. While the reactions of prosecutors in the big cities have garnered most of the headlines, Texas Monthly reached out to prosecutors for every county in Texas seeking to find out how they plan to cope with this new legal landscape.
Officials with 93 of Texas’s 254 counties responded to inquiries. (Officials from the remaining 161 counties either did not respond or declined to comment.) Twenty-six counties—a mix of urban, suburban, and rural areas—are no longer prosecuting low-level marijuana cases as a result of the new law. Nine of the state’s twelve most populated counties—representing nearly 15 million people, or more than half of Texas’s total population—will no longer prosecute low-level marijuana cases, and some have pledged to dismiss pending cases. However, almost three-quarters of the counties we contacted, 67 in all, indicated they will continue business as usual.
Perhaps reluctant to shed a tough-on-crime approach popular among Texas conservatives, some officials in smaller counties were critical of their urban peers dismissing cases. Bill Helwig, DA of Yoakum County, a square patch of West Texas with population 8,500, said the new law likely won’t affect how marijuana cases are prosecuted there. “We’re a very conservative county, and I believe that rural counties may view the situation from a slightly different set of glasses,” he said.
Kendall County DA Nicole Bishop, whose county just north of San Antonio has a population of about 45,000, likewise intends to continue misdemeanor marijuana prosecutions. Her office also will request restitution from any defendants who insist on lab testing, including seeking more severe punishment in plea deals. “I will not act as an unelected legislator by unilaterally deciding what laws I deem worth it to enforce,” she said. “I will not abandon my sworn duty to follow the law.”
Yet the new law could disproportionately strain the resources of these smaller counties, which are more likely to lack the equipment and the funds to outsource testing. In Beaumont’s Jefferson County, for example, the crime lab recently requested nearly $500,000 for new equipment, employees, and training for distinguishing marijuana from hemp, according to the Beaumont Enterprise. Steve Houston, the DA in Brewster County in far West Texas, said the Legislature created another unfunded mandate for local governments. “It requires testing, and they didn’t provide funding for testing,” Houston told Texas Monthly. “I’m not paying for a bunch of testing.”
This month’s letter to prosecutors from Governor Greg Abbott, Lieutenant Governor Dan Patrick, attorney general Ken Paxton, and House speaker Dennis Bonnen both disputed claims about the high costs of lab tests and downplayed the necessity for any additional testing, suggesting that DAs use “the tried and true use of circumstantial evidence.”
Several DAs pushed back against these assertions. Hardeman County DA Staley Heatly said the fact that hemp and marijuana come from the same plant makes testing “absolutely” a must. Patrick Wilson of Ellis County, where Waxahachie is the seat, called the governor’s advice misguided. “There is no circumstantial evidence of which I am aware that would prove the chemical makeup of a substance beyond a reasonable doubt,” he said.
The variety of responses among prosecutors seems to have been a consequence unforeseen by many of the legislators who voted for HB 1325. “It’s one of those things that we did and now we’re looking back saying, ‘Well, we didn’t think about that,’” state representative J.D. Sheffield, R-Gatesville, told Waco’s KWTX.
But according to a Fort Worth Star-Telegram editorial, lawmakers received some inkling of the potential confusion the bill could cause. At a hearing in April of the House Agriculture Committee, Department of Public Safety crime lab director Brady Mills explained that his lab would need to buy new equipment for testing THC levels. There were no follow-up questions from the committee members.
“I’ve never seen a drug case, marijuana or any other type of drug, prosecuted without a lab report,” Hamilton County District Attorney Adam Sibley, a former defense attorney, told Texas Monthly. “I don’t think it’s a good idea for us to go to court and ask our juries to convict people when I can’t put a lab person on a witness stand to definitively say, ‘Yes, this substance is illegal.’”
Charles Mendeke, the sheriff in Uvalde County, was more direct in his criticism. “It is the worst bill they have ever passed,” he told the Uvalde Leader-News earlier this month. “They passed it without rules or regulations established, and it has created a law enforcement nightmare.”

Map from the article:

Fuck you Hays County.

[Onboard 2.0 9,083]

13 hours ago, BabaYaga said:

We're so fucked....as our state descends into chaos and madness

An insidious weed, that will eat the heart, and soul from our American youth turning them into ...... reefer heads.

[elfenix 34,223]

fwiw, harris hadn't been processing low level amounts of weed for a while now.  i think a couple other of the big counties weren't, either.

[4th and 5 4,914]

If the D insists on proof of >.03THC the DA can send it to a lab and charge the lab testing fee to the D as restitution at trial.

It’s a pain in the ass but the state can still prove their case. But many counties just don’t care and don’t prosecute minor amounts

i can tell you around central Texas its

Bexar = no

Comal = most definitely will prosecute

Hays = not really

Caldwell = not really

Guadalupe = not really

Travis = no

Williamson = not really

[Chooky 13,307]

1 hour ago, 4th and 5 said:

If the D insists on proof of >.03THC the DA can send it to a lab and charge the lab testing fee to the D as restitution at trial.

It’s a pain in the ass but the state can still prove their case. But many counties just don’t care and don’t prosecute minor amounts

i can tell you around central Texas its

Bexar = no

Comal = most definitely will prosecute

Hays = not really

Caldwell = not really

Guadalupe = not really

Travis = no

Williamson = not really

In Brown County they just cut off your feet, but after they you're free to go.

[Yarbr 123]

Live PD today in Wilco, chick had weed like substance that said hemp product and no THC and she was let go. There was more to it, but I was half ass paying attention and that was the gist of it.

[Homercles 10,205]

Excuse me testing sirs, but could you guys charge us an absurd amount of money to test this little nug and tell us if it's rope or dope so we'll have a better chance at ruining this guy's life? 

I weave two ropes in the morning, weave two ropes at night. I weave two ropes in the afternoon, makes me feel alright.

[PenelopeWitherspoon 19,100]

fwiw, harris hadn't been processing low level amounts of weed for a while now.  i think a couple other of the big counties weren't, either.

Since 2017. But here is the official word from early July.

https://www.houstonchronicle.com/news/houston-texas/houston/article/Is-pot-now-legal-in-Texas-District-attorneys-14068213.php

[Big D 249]

7 hours ago, Yarbr said:

Live PD today in Wilco, chick had weed like substance that said hemp product and no THC and she was let go. There was more to it, but I was half ass paying attention and that was the gist of it.

I saw that.  The one cop told her he would rather see her smoking cigarettes then hemp.  Again, uninformed cops spreading bullshit to fit their narrative.

[immortal13 4,059]

2 hours ago, Big D said:

I saw that.  The one cop told her he would rather see her smoking cigarettes then hemp.  Again, uninformed cops spreading bullshit to fit their narrative.

I would rather cops shut the fuck up instead of giving uninformed advice

[Viper 12,101]

small update, Austin no longer prosecuting small marijuana charges

https://www.texastribune.org/2020/01/23/austin-texas-will-stop-arrests-tickets-low-level-marijuana-cases/

Quote

The Austin City Council approved a resolution Thursday that will largely end arrests and fines for low-level marijuana possession. This comes after Texas' legalization of hemp last June threw marijuana prosecution into chaos since the plants look and smell identical.

The resolution directs Austin police not to spend city resources on newly necessary lab tests to distinguish marijuana from now-legal hemp. It passed unanimously with nine votes. Council member Jimmy Flannigan and Mayor Steve Adler were absent. Debate on the measure lasted just under an hour and a half. About 20 people spoke on the resolution, and only Austin Police Association President Ken Casaday voiced opposition.

Austin residents who spoke in favor of the resolution cited the lack of racial equity in marijuana enforcement, the lasting impact that criminal records have on young and marginalized people, and the failure of the Texas Legislature to decriminalize at the state level. A retired officer and an attorney who previously worked in the Texas attorney general's office said law enforcement officers largely support this measure, though they are discouraged from voicing it.

The council was careful to emphasize that this was not a change in state law, but rather the city of Austin reprioritizing how and where it spends its resources.

"It's time to do the right thing," council member Gregorio Casar said. "It's the right thing for criminal justice reform ... and it's the right thing for racial equity."

The council's resolution stems directly from Texas' new law legalizing hemp. Last summer, after the passage of a federal hemp bill, state lawmakers approved a measure to create an agricultural industry for the crop in Texas. But the law also complicated marijuana prosecutions by narrowing the legal definition of the drug from cannabis to cannabis that contains more than 0.3% THC, the psychoactive ingredient in the plant.

All of a sudden, some district attorneys started dropping hundreds of low-level pot possession cases and not accepting new ones, arguing they couldn't tell without lab testing if a substance was marijuana. New misdemeanor marijuana cases filed by Texas prosecutors have since dropped by more than half. And numerous Texas prosecutors, including those in Austin’s Travis County, require police to submit lab reports on a substance's THC concentration before they will pursue misdemeanor marijuana charges. They argue circumstantial evidence like smell can no longer be used to authoritatively say something is marijuana.

Part of what prompted the Austin resolution — which prohibits spending city funds on such testing except in felony cases — is that public state labs are still working on establishing a way to test for that THC concentration. Right now they can only tell if something is cannabis. For some counties and cities, that has meant putting more money into shipping seized cannabis to private labs that can tell if it's hemp or marijuana.

Even in places where police don't have or aren't spending funds on such testing and prosecutors aren't accepting new cases, people are still being cited or arrested. They are sometimes taken to jail but then released with no charges being pursued. Austin police said this month that they still arrest or cite people who are suspected of possessing marijuana.

This resolution changes that, directing the city to get as close as possible to eliminating enforcement action for low-level cannabis possession.

The measure prohibits spending city funds on testing in low-level possession cases, and it directs police not to arrest or cite people in such cases — unless there is a safety concern — if they know the district attorney will automatically reject the charges or testing won't be approved. It clarifies that lab testing can be used for suspected felonies or when the cannabis is not for personal use, like trafficking cases. A revised version also specifies that the measure will not affect toxicology testing.

“We will look at our policies in regard to the resolution that just passed to determine what, if any, changes we need to make,” Austin Police Chief Brian Manley said after the vote.

He said officers have instructions to use a “cite-and-release” process if the person and violation qualify for it. Still, he said he’s concerned about the safety implications the resolution will have.

“The fact is we know that there is violence involved in the illegal drug trade,” Manley said. “And since marijuana is not legal in the state of Texas, there is no legal or safe place, necessarily, for someone to go buy it.”

 

[BabaYaga 15,286]

[cactusflinthead 27,598]

Oh hey look at that! Number one cop is not happy about the council. 

“[Marijuana] is still illegal, and we will still enforce marijuana law if we come across people smoking in the community,” Chief Brian Manley said during a news conference Friday afternoon.

Though cracking down on those in possession of small amounts of marijuana has never been a priority for the department, he said, police will continue to either issue tickets under the city’s “cite-and-release” policy or arrest people if officers “come across it.”

https://www.texastribune.org/2020/01/24/austin-texas-police-chief-marijuana-arrests-will-continue/

[Asithappens 974]

1 minute ago, cactusflinthead said:

Oh hey look at that! Number one cop is not happy about the council. 

“[Marijuana] is still illegal, and we will still enforce marijuana law if we come across people smoking in the community,” Chief Brian Manley said during a news conference Friday afternoon.

Though cracking down on those in possession of small amounts of marijuana has never been a priority for the department, he said, police will continue to either issue tickets under the city’s “cite-and-release” policy or arrest people if officers “come across it.”

https://www.texastribune.org/2020/01/24/austin-texas-police-chief-marijuana-arrests-will-continue/

What a buffoon.

Guess it doesn't matter if those cases are tossed b/c of insufficient proof that it's pot instead of hemp?

Make those arrests. Make your quota. 

[BradInATX 9,208]

It's amazing that police brass always sees legalization as "OMG we're going to have to reduce our workforce" instead of "cool, now our officers can use all of that time to be proactive and in the community instead of wasting time and resources on victimless crimes"

[Beau Vine 54,205]

On 7/30/2019 at 8:03 AM, Viper said:

tl;dr - Texas legalized hemp, but police departments don't have the tools to differentiate between hemp and marijuana so prosecutors are dismissing small weed cases because they are not worth the cost.

What about oils?  Asking for a friend...

[Zombie 284]

Hey Brian Manley, shut the fuck up!

[immortal13 4,059]

5 minutes ago, Beau Vine said:

What about oils?  Asking for a friend...

Felony

[Beau Vine 54,205]

27 minutes ago, immortal13 said:

Felony

Still?  This is hemp oil!

[immortal13 4,059]

THC oil is a felony.  I don't know about hemp

[BBQ2Bayou 807]

So what do you say when they find oil or flower on you? It's hemp or it's CBD? Or either? 

[cactusflinthead 27,598]

41 minutes ago, BBQ2Bayou said:

So what do you say when they find oil or flower on you? It's hemp or it's CBD? Or either? 

You say, "I reserve the right to be silent. I want a lawyer." And shut the hell up.