The Texas House of Representatives on Friday approved a bill to decriminalize marijuana possession, sending it to the Senate.
The action rounds out a busy week for cannabis reform in the chamber, where members have also advanced legislation to expand the state’s medical marijuana program, reduce penalties for possessing cannabis concentrates and require the state to study the therapeutic potential of psychedelics like psilocybin and MDMA.
In a 88-40 vote, the House approved HB 441, which would make possession of up to one ounce of cannabis a class C misdemeanor that does not come with the threat of jail time. The legislation, sponsored by Rep. Erin Zwiener (D), would also end the threat of being arrested for low-level possession and give people the opportunity to avoid a conviction by providing for deferrals and dismissals.
While decriminalization bills sometimes impose a civil penalty or infraction for possession, rather than a misdemeanor, this measure generally meets advocates’ definition of decriminalization because a class C misdemeanor does not involve incarceration as a punishment. Instead, people who commit the offense face a $500 fine.
Today, the Texas House passed HB 441. This bill lowers the criminal penalty for possessing small amounts of cannabis and provides a path to expungement. While it still needs to make it through the Senate, I am proud of this legislation and what it means for Texans. pic.twitter.com/x5LkLt0xXw
— Erin Zwiener (@ErinForYall) May 1, 2021
If the person pays the fine and enters into a plea of no contest or guilty, their case would be automatically deferred for one year. Then, if the judge’s orders are followed, they would avoid a criminal record.
“Texas cannabis bills are on the move and it’s exciting to see bipartisan support for HB 441, which has been carefully crafted to eliminate the threat of arrest and jail time for marijuana possession,” Heather Fazio, director of Texans for Responsible Marijuana Policy, told Marijuana Moment. “Advocates are already gearing up for action in the Senate. If given a fair shot, HB 441 could earn enough support to pass into law.”
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Advocates have closely followed the House this week as lawmakers took up a series of reform proposals. And while they’ve pointed to areas where various pieces of legislation could be improved, they’ve been encouraged to see the chamber advance each measure that’s come before them.
A separate medical cannabis expansion proposal was given final passage in the House in a 134-12 vote on Thursday, sending it to the Senate. It would add cancer, chronic pain and post-traumatic stress disorder (PTSD) as conditions that could qualify people for the state’s limited medical cannabis program. The bill passed in the House Public Health Committee earlier this month.
The legislation would further allow the Department of State Health Services to add more qualifying conditions via administrative rulemaking. And it would also raise the THC cap for medical marijuana products from 0.5 percent to five percent.
On Wednesday, the chamber approved an additional bill that would create a new drug schedule for products containing THC that would carry slightly lower penalties compared to where they are currently classified. But possession of up to two ounces of concentrates would still be a class B misdemeanor that does still carry the threat of jail time. The bill cleared the House Criminal Jurisprudence Committee earlier this month.
Lawmakers this week also sent Gov. Greg Abbott (R) a bill to clarify that a positive marijuana test alone is not sufficient criteria for removing a child from their home.
Earlier this month, the House Agriculture and Livestock Committee also approved legislation that would make certain changes to the state’s hemp program, including imposing rules related to the transportation and testing of consumable hemp products. That bill is slated for floor consideration on Monday.
But all of these proposals face an uphill battle in the Senate, where it remains to be seen whether legislators will have the same appetite for reform or what kind of changes they might push for in any particular bill. Lt. Gov. Dan Patrick (R), who presides over the Senate, has killed prior efforts to enact cannabis reform in the state, raising questions about the prospects of far-reaching changes advancing in the chamber.
For example, shortly after the House approved a decriminalization bill in 2019, Patrick declared the measure “dead in the Texas Senate,” stating that he sides with lawmakers “who oppose this step toward legalization of marijuana.”
That same year, a spokesperson for the lieutenant governor was asked about a medical cannabis expansion bill and reiterated that he is “strongly opposed to weakening any laws against marijuana [and] remains wary of the various medicinal use proposals that could become a vehicle for expanding access to this drug.”
That’s all to say that, unless Patrick has a change of heart on the issue, there’s still a risk that he could singlehandedly quash the reform measures. But other legislative leaders do seem to be warming on the policy.
House Speaker Dade Phelan (R) said during a Texas Young Republicans event last month that while he wouldn’t be able to distinguish marijuana from oregano, he said, “I understand the issue.”
The speaker said that he voted for a limited medical cannabis legalization bill during his freshman year in the legislature, and his support for the reform is partly based on the fact that he has a “sister with severe epilepsy, and small amounts of CBD oil makes a big difference in people’s lives.”
Phelan also noted that he was a “joint author—no pun intended” of cannabis decriminalization legislation last session.
“I was able to go back home and explain it, and it wasn’t a big deal,” he said. “To me, it’s a reasonable criminal justice reform issue.”
Texans’ support for legalizing marijuana has grown significantly over the past decade, according to a poll released last month.
Sixty percent of state voters now back making cannabis legal “for any use,” the University of Texas and Texas Tribune survey found. That compares to just 42 percent who said the same back in 2010.
And while Patrick’s record on the issue is a source of concern for advocates, he and other legislative leaders have recently indicated that they anticipate more modest proposals to be taken up and potentially approved this session, particularly as it concerns expanding the state’s limited medical cannabis program.
Patrick said flatly, “sure, that will be looked at this session” when asked about the prospect of expanding access to medical marijuana in January.
“We’re always listening on the health issues, but we’re not going to turn this into California,” he said, “where anybody can get a slip from the doctor and go down to some retail store and say, ‘You know, I got a headache today so I need marijuana,’ because that’s just a veil for legalizing it for recreational use.”
Phelan said he thinks “the House will look at” reform measures this year, including bills to legalize for adult use. He said the lawmakers will likely “review those again, and some will get traction, some will not.” However, the Senate remains an obstacle for comprehensive reform.
Legislators in the state prefiled more than a dozen pieces of cannabis legislation ahead of the new session. That includes bills that would legalize recreational marijuana, allow high-THC cannabis for medical use and decriminalize low-level possession of marijuana.