Earlier this year, the legislature of the great state of Texas passed H.B. 1325, a bill that legalized the production of hemp—and, thus, the market for products containing CBD, which is derived from hemp. The Republican-controlled Texas House of Representatives voted 140-3 to pass the bill’s final version on May 22. On June 10, governor Greg Abbott, also a Republican, signed it into law, effective immediately.
The measure’s proponents did not intend it to affect existing state laws prohibiting the sale or possession of marijuana. One section of the bill, in fact, specifically directs the Texas Department of Agriculture to draft regulations to “ensure that illegal marihuana [sic] is not transported into or through this state disguised as legal hemp.” However, in a landmark addition to the annals of poorly-drafted legislation with unintended consequences, the Texas Tribune reports that the bill has effectively decriminalized weed in the state, forcing many prosecutors to drop low-level marijuana case that they fear they can’t prove in court any longer.
The practical problem they’re staring down is that the law distinguishes between hemp and marijuana by reference to the percentage of tetrahydrocannabinol, or THC, which is the psychoactive compound. The statute defines anything with a THC concentration of less than 0.3 percent as hemp, which may be sold at your local health food store. Anything with a THC concentration of greater than 0.3 percent is weed, and the grower must either destroy it or alter it until the sample dips below the relevant threshold. The state’s crimes labs, however, are currently incapable of testing the potency of drugs seized by police with the necessary degree of precision. In other words, if you’re caught with what the police say is illegal marijuana, and you counter that it’s perfectly-legal hemp, Texas is not capable of proving otherwise. Whoops.
In an advisory bulletin released earlier this summer, the Texas District & County Attorneys Association (TDCAA) affirmed that prosecutors may just have to sit on their hands until the state buys the equipment and develops the tests it needs to enforce the rules—which, again, it just made for itself. Prosecutors in several counties have begun dismissing hundreds of weed-related charges, and Texas Department of Public Safety troopers are now issuing citations instead of making arrests for possession of misdemeanor-level amounts of (alleged) weed.
Prosecutors in Tarrant County, the state’s third-largest, told the Tribune that they’ll be able to re-file a case if they can get lab results on samples within two years of seizure. A procedure currently in development would be able to get THC results accurate to a concentration of 1 percent, which is not as precise as the law calls for, but nonetheless sufficient to make the weed-or-not-weed call in most cases. The Texas Forensic Science Commission hopes to have it ready at some point in 2020. In the meantime, the TDCAA says, “unless a defendant stipulates that his cannabis is marijuana and not hemp, any criminal cases may need to wait to go to trial until testing on them can be completed.”
In a delightful twist, a separate Tribune report notes that Texas Department of Public Safety’s crime lab director, Brady Mills, told lawmakers about this exact issue while the bill was pending before the Texas House Agriculture and Livestock Committee. The Tribune describes what happened immediately after Mills issued his warning.
“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.
Texas isn’t the only state that has created this problem for itself of late; lawmakers in Florida and Ohio, among others, have also passed pro-hemp laws that inadvertently kneecapped anti-marijuana enforcement. In one of several exasperated asides in its bulletin, the TDCAA couldn’t resist calling out this oversight.