Cannabis in Texas. The most anti-cannabis state in the US cannot punish the possession of marijuana due to lack of resources and a legislative error
At the beginning of 2018, the first sales of medicinal cannabis with low THC content began in Texas, in accordance with the Compassionate Use Program. But although the program helps some patients, the reality is that it is too limited and leaves most patients behind.
Only patients suffering from severe seizures can participate, which leaves unattended a large number of citizens suffering from other conditions such as cancer and post-traumatic stress disorder (PTSD), and many of whom will have to rely on medications based on opiates.
However, since last month, possession of small amounts of marijuana has been decriminalized in many Texas counties due to a legislative accident.
How is it possible to have reached this situation in the least liberal state regarding cannabis policies? The truth is that what happened in Texas seems like a joke; a joke that favors those who are arrested with small amounts of marijuana. In Texas, possession of marijuana is a very serious crime.
It all started when the 86th Texas Legislature passed a bill with the support of Democrats and Republicans whose purpose was to benefit farmers by allowing the cultivation of hemp as a cash crop.
House Bill 1325, which came into force on June 10, defined legal hemp as cannabis whose THC content is less than 0.3%.
The problem is that law enforcement agencies in Texas do not have the proper equipment, qualified personnel, and methods necessary to quantifiably analyze the THC concentration of cannabis in a laboratory sample. Consequently, it is impossible to discern whether the confiscated cannabis is legal hemp or illegal marijuana.
The Travis County Prosecutor’s Office has decided to dismiss cases of misdemeanor possession of marijuana filed from June 10 onwards if they are not backed by a laboratory report. The district attorney of Travis County has announced to the media the dismissal of 32 cases of serious crimes related to the possession or sale of marijuana.
County officials estimate that the police will take between 8 and 12 months to prove that the confiscated sample is illegal marijuana and not hemp. It’s too long and too many resources are needed.
At the end of June, the Tarrant County District Attorney dismissed 234 minor charges for possession of marijuana because the laboratories that have to analyze the seized samples are not well enough equipped to determine the amount of THC in the confiscated cannabis.
Similarly, a week later, the counties of Harris, Bexar, Fort Bend and Nueces informed the media that they were going to prosecute cannabis possession charges for personal use of less than a quarter of a pound without proof provided by a qualified laboratory that demonstrates that the marijuana seized has an illegal content of THC.
On July 3, Travis County made the same decision. In effect, County Attorney David Escamilla met with Sheriff Sally Hernandez, Austin Police Chief Brian Manley, and District Attorney Margaret Moore to come to a conclusion on how to deal with the matter. Shortly after Escamilla announced to the media that his office was going to dismiss the cases presented from June 10 onwards.
For her part, prosecutor Margaret Moore issued a press release announcing the dismissal of felony cases that same day. Escamilla explained that it was the logical reaction to the mistake made by state legislators.
Although it seems absurd, the reality is that there is only one accredited laboratory with the capacity to verify if the confiscated cannabis is marijuana or hemp. Although Escamilla says that more laboratories will be created, law enforcement agencies believe that upgrading their equipment will cost too much.
The state of Texas has a product called NIK Test E to determine the amount of THC. But its effectiveness has been questioned because there have been too many cases of false positives in legal CBD products.
Nearly 60 bills related to cannabis have been introduced during the last legislative session in Texas. But HB 1325 was passed almost unanimously in the House of Representatives and the Senate. It was thought to be the best way to allow farmers to develop an emerging and profitable industrial crop of hemp. But what legislators did not expect was that HB 1325 was going to turn into a way to create confusion in the enforcement of the current marijuana law. It is important to note that one of the creators of HB 1325 was the Republican Tracy King, D-Batesville, who had previously voted on a bill in favor of the decriminalization of marijuana in Texas; the HB 63 project.
Jax Finkel, executive director of Texas NORML (National Organization for the Reform of Marijuana Laws), had already anticipated the problems that the changing hemp laws would have and predicted that they could cause complications in THC tests. “This is not a surprise, it’s something that should have been established in 2015 when the Compassionate Texas Use Program went into effect,” says Jax Finkel.
Very few Texans disagree with counties that reject low-level marijuana cases. Almost 85% want to reduce penalties for marijuana-related crimes. For their part, urban officials believe that this new way of dealing with cannabis can help them save money and spend the resources of the state more effectively. Finkel insists that marijuana must be legalized since it is not worth spending money or resources on the cost of testing.
Police dogs cannot differentiate marijuana from hemp
No dog cannabis detection dog can determine the amount of THC in marijuana. Therefore, when the dog instructs the police officer to shoot marijuana, the agent can not know if the animal has smelled the smell given off by legal hemp or illegal marijuana.
Dogs that police use on the road are trained to smell “probable cause” to get into a vehicle. But they cannot tell the difference between hemp and marijuana, explains Jason English, a criminal and civil lawyer and former Travis County prosecutor.
Typically, a police officer uses the smell of marijuana as evidence to search a vehicle. But now the police need a laboratory to know if it is marijuana or hemp because the only difference between the two substances is the percentage of THC.
Mykal J. Fox, a criminal defense lawyer operating in Austin who is an active member of NORML, also realized the great advantage that the new legal situation in Texas represented for the defense of his clients. “When the bill came into effect on June 10, nobody was really prepared for what it meant, specifically the application of the law, for the benefit of my clients,” he told the media.
The point is that the hemp flower smells like the marijuana flower. Therefore the question is: ‘Is the dog smelling something that is legal to have?’ and if so, how does that give an officer the right to inspect the vehicle?
The situation has become so complicated that it could even favor traffickers of more dangerous substances because if the police officer registered the vehicle based on the detection of unqualified odors, the case could be dismissed.
In Travis County, offenders without a criminal record who are arrested with less than two ounces can take a four-hour prevention class and pay a small fine, instead of going to court.
Fox says that his clients who have been arrested for having an electronic THC cigar, which is a felony in Texas, often leave after taking an eight-hour class. But with the new law these minor punishments cannot be imposed without a laboratory report. Those involved in the 93 dismissed cases are unintended beneficiaries of these changing laws, but it seems they will not be the only ones.
Betty Blackwell, chair of the board of the Private Defenders Service of the Capital Area, is very happy that local courts do not accept minor charges of marijuana at the moment. However, she believes that the decision should be retroactive. She believes that the new rules should apply not only to those that occur on or after June 10. There are currently about 4,000 pending warrants in Travis County. She maintains that complying with the orders would be very unfair if in the future the cases will simply be dismissed.
To give us a glimpse of how cannabis is penalized in Texas, suffice it to say that possession of less than 1 gram of hashish is a felony punishable by a $ 180 fine and up to 2 years in jail. Possession of 1 to 4 grams of hashish is considered a very serious crime that is punishable by $ 10,000 fine and a jail period ranging from 2 to 10 years.