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Texas Prosecutors End Some Marijuana Prosecutions Under New Hemp Law

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The new law changed the definition of marijuana, and prosecutors and crime labs say they don’t have the resources to test if a substance is legal hemp or marijuana.

By Jolie McCullough and Alex Samuels, The Texas Tribune

Because of a new state law, prosecutors across Texas have dropped hundreds of low-level marijuana charges and have indicated they won’t pursue new ones without further testing.

But the law didn’t decriminalize small amounts of marijuana for personal consumption. It legalized hemp and hemp-derived products, like CBD oil.

An unintended side effect of the law is that it has made it difficult for law enforcement to tell if a substance is marijuana or hemp, according to prosecutors. Among other provisions, House Bill 1325 changed the definition of marijuana from certain parts of the cannabis plant to those parts that contain a higher level of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana that produces a high. It’s a difference numerous district attorneys, the state’s prosecutor’s association and crime labs say they don’t have the resources to detect, weakening marijuana cases where defendants could claim the substance is instead hemp.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” stated an advisory released by the Texas District and County Attorneys Association last month.

Some involved in the hemp legislation have countered that there is already available equipment to test suspected drugs, even if it isn’t in most crime labs.

Still, top prosecutors from across the state and political spectrum — from Harris to Tarrant counties — have dismissed hundreds of pending misdemeanor marijuana charges since the law was signed by Republican Gov. Greg Abbott and immediately went into effect on June 10. They have also signaled they won’t pursue any new charges without testing a substance to indicate if there is more than .3% of THC, the now-legal limit to distinguish between hemp and marijuana.

“In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions… will not accept criminal charges for Misdemeanor Marijuana Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over .3%,” wrote the district attorneys from Harris, Fort Bend, Bexar and Nueces counties in a new joint policy released Wednesday morning.

Tarrant County’s District Attorney’s Office previously issued a similar statement, and since last month has dismissed 234 low-level marijuana cases. Harris is in the process of dismissing 26, according to a spokesperson. The counties have said they will still pursue felony marijuana cases, and say they have the option to refile and later pursue charges in marijuana arrests if testing resources become available.

For now, it’s unclear when that could be, and until a process is put in place, prosecutors will “have all these marijuana cases where someone can argue it’s hemp,” said Lisa Pittman, a cannabis law attorney.

“They have to just table those cases,” she said.

A crime lab scientist said even if he gets new forensic testing equipment right away, there is still a months-long accreditation process to be able to use tested drug evidence in court.

Peter Stout, the CEO and president of the crime lab used by the Houston Police Department, said until the law went into effect on June 10, all that was required to identify something as marijuana was a quick test to check for the presence of cannabinoids in things like a plant, gummy or vape pen oil. Determining how much, if any, THC is present, is much more complicated, he said, and he is unable to do it now.

“The plant stuff is one thing,” he said. “All these edibles and infused products is a whole different thing, and I don’t know what we do about that.”

Testing can be done, Stout said, but equipment to test forensic quality on those types of products — needed to determine if it is a controlled substance under state criminal definitions — costs between $300,000 and $500,000. He estimated more than 20 labs would need such equipment to cover the state, and each would then need to go through the accreditation process.

“People can comply with the law if given the tools to do it, it’s just going to cost time and money,” said Shannon Edmonds, director of governmental relations for the prosecutor association.

But the Republican Senate sponsor of the hemp legislation, state Sen. Charles Perry of Lubbock, argued there’s already sufficient technology readily available for counties that need it to test suspected marijuana. Tarrant County District Attorney Sharen Wilson told the Fort Worth Star-Telegram last month she believed her office had found two labs.

“Although the capacity may not be there yet to receive quick lab results, there are labs ready to receive and test products today,” Perry told the Texas Tribune. “We are having daily conversations with law enforcement, prosecutors, and hemp stakeholders to address and solve any concerns that exist as capacity catches up.”

He added that under the 2018 Farm Bill, which legalized hemp that contains no more than 0.3% THC at the federal level, hemp and hemp products would have been crossing state lines anyway — even without legislative action.

“Before the Texas Hemp Bill passed, hemp-derived products could enter our state and be bought and sold with little to no oversight,” Perry said. “In fact, the 2018 Farm Bill prohibits states from restricting the transportation of hemp with less than 0.3% THC. With the passage of the Texas Hemp Bill, we now have proper regulations in place to protect Texas consumers at every turn.”

The state legislation, which called for no funding to purchase crime lab equipment, sailed through the Legislature unanimously largely because of the federal law. Because of the overwhelming support, when Abbott signed the bill on June 10, it went into effect right away — which is part of the problem, according to prosecutors.

“This new law took effect immediately, without the usual grace period during which the procedures and regulations are decided and put in place to support law changes,” the Tarrant County District Attorney’s Office said in a statement.

Stout said he didn’t know about the changing marijuana definition in the bill until after it was too late to testify, since the bill went through agricultural committees, not the ones that handle criminal procedure. Abbott’s office did not respond to a request for comment for this story.

The scramble among several district attorneys comes months after lawmakers rejected a bill by state Rep. Joe Moody, D-El Paso, that would have lessened the criminal penalties for Texans found to possess small amounts of marijuana. But prosecutors have noted that the dropped cases and change in policy isn’t decriminalization.

Tarrant County’s 234 dismissals can be refiled within two years if lab results are able to be produced, according to a spokesperson. And Harris County is continuing its marijuana diversion program, which allows those suspected of possessing small amounts of marijuana to complete a four hour class instead of being arrested. If people decide not to take the class, they can “wait and see if labs will become certified.”

But in the meantime, at least in some parts of the state, it appears some marijuana convictions have been placed in limbo.

“You may have to put your marijuana cases on the same ‘waiting for lab results’ shelf as your felony DNA cases and postpone them until the labs can provide the needed evidence for prosecution,” said the prosecutor association advisory.

This article originally appeared in The Texas Tribune.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Texas Governor Signs Bill To Expand State’s Medical Marijuana Program

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Tom Angell is the editor of Marijuana Moment. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

Politics

Kentucky GOP Congressman Touts ‘High Hemp IQ’ Of His Constituents

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Rep. James Comer (R-KY) says that he proved his political advisors wrong when he decided to champion hemp legalization.

When he served as Kentucky’s Agriculture Commissioner before joining Congress and first contemplated “making hemp a reality,” he was told that people would conflate the crop with marijuana and he’d face a backlash, Comer said during an interview that aired this week.

“They said the people of Kentucky will never know the difference. They’ll think you’re talking about marijuana and you’re done,” he said during the Kentucky Educational Television appearance. “You can’t be a Republican and do this.”

“But people in Kentucky are smarter than some people give us credit for, and the people in Kentucky knew the history of hemp,” he said, noting that his own grandparents cultivated the crop.

“We have a high hemp IQ in Kentucky, and people across America are now learning the difference between hemp and marijuana.”

One of the areas that Comer said he hopes to see expanded is the use of hemp fibers to create products such as furniture and car parts. He mentioned one example of a Kentucky company that’s creating hardwood flooring out of hemp, and House Agriculture Committee Chair Collin Peterson (D-MN) is going to tour that facility with him soon.

Shortly before becoming the panel’s chair, Peterson said he was considering growing hemp on his own farm.

Most of the existing hemp facilities in Kentucky are producing CBD oil, which Comer said he also takes to treat minor pain.

While hemp and its derivatives were federally legalized under the 2018 Farm Bill, businesses are still awaiting guidelines from the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA). And that regulatory uncertainty has led some financial institutions to deny credit lines to hemp companies.

To that end, Comer said he and Senate Majority Leader Mitch McConnell (R-KY) are working closely to resolve the problem. That includes pushing for the Secure And Fair Enforcement (SAFE) Banking Act, which would protect banks that service state-legal cannabis businesses from being penalized by federal financial regulators.

“We teamed up with the marijuana people in the states,” Comer said.

Watch Comer’s hemp comments, starting around 5:30 into the video below:

“They’ve legalized marijuana. They’re selling marijuana. They’re not allowed to deposit the cash. They’re not allowed to take credit card transactions at those marijuana stores,” he said. “We have worked with them to try to create a system where you can have financial transparency, and that bill is making its way through Congress now.”

The SAFE Banking Act was approved by the House Financial Services Committee in March. And on Tuesday, the Senate Banking Committee took advocates by surprise after it announced that it would hold a hearing on marijuana banking issues next week, with just days left before the August recess.

Separately, the Senate Agriculture Committee will meet to discuss hemp production two days later.

McConnell has been an especially vocal advocate for hemp and CBD. For example, he led the head of USDA on a tour of a Kentucky hemp facility that produces CBD oil earlier this month.

Comer also claimed in the new interview that large pharmaceutical companies feel threatened by hemp-derived CBD as more consumers gravitate toward it as a “natural supplement” that could be a substitute for prescription painkillers.

“Now what you are having up here in Washington as we speak, the big drug companies are like, ‘Wow, people are buying this CBD oil and not buying our drug,'” the congressman said. “So they’re demanding that the FDA regulate it.”

He and McConnell are working to “keep the FDA off the backs of people,” Comer said.

While former FDA Commissioner Scott Gottlieb stressed that creating a regulatory pathway that allows for the lawful marketing of CBD as a food item or dietary supplement would take years without congressional action, the agency recently said that it is speeding up the rulemaking process and will issue a progress report by early fall.

USDA similarly recognized the intense interest from lawmakers and stakeholders in developing regulations for the crop, and it plans to issue an interim final rule for the crop in August.

Senate Schedules Second Cannabis Hearing For Next Week

Photo courtesy of KET.

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Psychedelics Decriminalization Moves Forward In Cities Around The U.S.

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Activists in Berkeley, California and Port Townsend, Washington took steps this week to get psilocybin mushrooms and other psychedelics decriminalized, following in the footsteps of successful similar efforts in Denver and Oakland.

In Berkeley, a decriminalization resolution advanced in a City Council committee on Wednesday, and organizers in Port Townsend spoke about their proposal at a county public health board meeting on Thursday, with plans to formally present it to the City and County Council.

The Berkeley measure would prohibit city departments and law enforcement from using any funds to enforce laws against possession, propagation and consumption of psychedelics by individuals 21 or older. Members of the City Council Public Safety committee unanimously voted to send the resolution to the body’s Public Health Committee for further consideration.

If that panel approves the measure, the full Council will schedule a hearing and vote on final passage. Decriminalize Nature, the group behind this resolution as well as the successful passage of neighboring Oakland’s psychedelics decriminalization effort last month, said they hope the Council will act on the measure by early November.

Separately, activists in Port Townsend announced that they delivered a speech about their psychedelics decriminalization proposal during a meeting of the Jefferson County Board of Health.

Beyond prohibiting the use of government funds to criminalize adults for using and possessing the substances, the local Washington resolution also calls on the city administrator to “instruct the City’s state and federal lobbyists to work in support of decriminalizing all Entheogenic Plants and plant-based compounds that are listed on the Federal Controlled Substances Schedule 1.”

“We are overwhelmed by the support of our community. Our group of supporters filled up half the audience,” the Port Townsend Psychedelic Society said in an Instagram post. “We are currently making plans to speak with the county health officer to talk about next steps in presenting in front of city and county council.”

Alex Williams, who is leading the decriminalization effort in Berkeley, told Marijuana Moment that Wednesday’s Council committee meeting there “went better than I had anticipated” and that he feels “there is an excellent chance of the resolution passing.”

Watch the Berkeley Public Safety Committee discuss psychedelics, starting at about 42:00:

While Williams said two members of the committee seemed to be under the impression that the resolution is singularly geared toward recreational use and meant to “capitalize on a new market,” Decriminalize Nature plans to address those misconceptions, emphasizing that the measure would not provide for commercial manufacturing or sales and that “this process is very important to allowing safe, equitable access to marginalized communities.”

“It is essential that entheogenic substances be treats as sacred spiritual practices and healers,” he added.

The resolution defines entheogenic substances as “plants and natural sources such as mushrooms, cacti, iboga containing plants and/or extracted combinations of plants similar to ayahuasca; and limited to those containing the following types of compounds: indoleamines, tryptamines, phenethylamines.”

Two Councilmembers, Rigel Robinson and Cheryl Davila, are sponsoring the measure.

“You can imagine a day where, years from now, doctors working with patients with serious depression or veterans dealing with PTSD could actually offer them a more realistic and comprehensive suite of potential treatments, which may include some of these plants as the research over the last several decades has indicated,” Robinson said at the meeting.

While Berkeley might seem like an obvious target for psychedelics reform given the city’s decades-long close association with counterculture, the movement to remove criminal penalties is gaining steam nationally. Decriminalize Nature is maintaining a map of jurisdictions throughout the country where activists have expressed interest in pursuing a similar model.

Also this week, a resident spoke at a Columbia, Missouri City Council meeting, asking the body to consider a resolution to decriminalize psychedelics. At least one councilmember expressed interest in following through, and he called the therapeutic potential of the natural substances “very promising.”

Individuals from nearly 100 cities have reached out to the organization for assistance advancing their own decriminalization efforts.

Voters in Denver kicked things off by approving the nation’s first-ever ballot measure to decriminalize psilocybin mushrooms in May.

Activists are currently pursuing efforts to place psilocybin-focused measures on statewide ballots in California and Oregon for next year.

More Than 100 Marijuana Businesses Urge Congress To Include Social Equity In Legalization

Photo courtesy of Wikimedia/Mushroom Observer.

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Top Democratic Party Leader Flops With Attempted Joke About Trump Smoking Hemp

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The chairman of the Democratic National Committee (DNC) apparently thinks that hemp gets you high—and that getting high makes you dumb.

In an attempted dig at President Donald Trump, who said last week that farmers struggling amid a trade war were “over the hump,” DNC Chair Tom Perez said he thought the president “was smoking some hemp when he said they were over the hump.”

“If you smoke some hemp, I guess that would stimulate certain farm economies here,” he added during his remarks at a press conference in Wisconsin.

Watch Perez’s hemp comment at about 6:45 into the video below:

Because hemp contains only trace amounts of THC, the main psychoactive ingredient in marijuana, it wouldn’t get you high, as Perez implied. But legalization advocates say it’s especially problematic that a party leader is treating marijuana as a laughing matter in the first place.

“I would need to be smoking something a hell of a lot stronger than hemp to find Tom Perez’s weak attempt at a marijuana joke funny,” Erik Altieri, executive director of NORML, told Marijuana Moment.

“At a time when over 600,000 overwhelmingly black and brown Americans are still being arrested every year for simple possession, our failed and racist prohibition is no laughing matter,” he said. “While we have made great progress in winning elected officials nationwide to our cause, Perez illustrated that we have a lot of work left to do when it comes educating them about the issue and still a bit of a road to go down before we can stop dealing with dad jokes and bad weed puns.”

Don Murphy, director of federal policies for the Marijuana Policy Project, echoed that point.

“We need more leadership and action at the federal level, not more stupid jokes, puns and inaccurate comments about hemp’s ability to get you high,” he told Marijuana Moment. “Luckily that is something that many of his party’s presidential candidates understand,” he said. “Sadly, Mr. Perez does not.”

Perez’s position on cannabis policy isn’t quite clear, as he’s remained largely silent on the issue. In contrast, many 2020 Democratic presidential candidates are campaigning on broad marijuana reform proposals.

The DNC chair made his attempted hemp quip during a press availability in Milwaukee, where he is meeting donors and coordinating preparation for next year’s Democratic National Convention.

Senate Schedules Second Cannabis Hearing For Next Week

Photo courtesy of Flickr/Gage Skidmore.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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