Like dozens of other states, Texas could soon legalize the possession, sale, and use of marijuana. This possibility comes after the June 2019 passage of House Bill 1325, which eases restrictions on how marijuana is grown and utilized in the state.
However, the bill has not been without controversy and concern. It now poses a challenge to how current marijuana possession cases can be prosecuted and punished in Texas.
The Texas House of Representatives passed House Bill 1325 on June 10, 2019. It effectively legalized the growing, harvesting, and transporting of hemp. It now permits hemp to be marketed for the use and production of natural CBD-based health products in Texas.
This bill paved the way for CBD to be consumed by:
It decriminalized the personal use of this substance and now recognizes that CBD can be an effective remedy for ailments like pain, movement disorders, and anxiety.
HB 1325 further clarifies that marijuana is the part of the cannabis plant or a hemp derivative that contains THC, or tetrahydrocannabinol, in a concentration of 0.3 percent or higher. If the concentration is less than 0.3 percent, the derivative is legally labeled as hemp.
With that, the bill acknowledges that all marijuana is hemp, but hemp is not necessarily considered to be marijuana. The differentiating factor is the amount of THC found within the plant or hemp derivative.
The passage of this bill now requires law enforcement and prosecutors to make a concerted effort to find out how much THC is in an amount of marijuana upon the arrest of an individual. Depending on the results, the person found to be in possession of marijuana may not be able to be legally charged with a crime under the new Texas law. Whereby the former law in the state criminalized all possession of marijuana, the new law puts the burden on the state to prove that the person in possession is guilty of carrying an illegal amount of THC on him or her.
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House Bill 1325 presents a unique challenge to prosecutors and law enforcement in Texas simply because few labs in the state have the capability of determining the level of THC in marijuana. In fact, the Texas Department of Public Safety admits that most labs in the state do not have the equipment needed to make this determination.
Without the amount of THC being determined in even the smallest amount of marijuana, prosecutors in Texas cannot meet their burden of proving their cases beyond a reasonable doubt. They cannot provide evidence in a marijuana possession case that what the defendant was carrying was truly marijuana rather than hemp.
Further, it will be impossible for attorneys to agree to the terms of a plea bargain to a misdemeanor possession case. The state cannot prove its case, giving defense attorneys an open door to having the charges against their client dropped entirely.
The new house bill prevents the state from being able to prove that even the smallest amounts of marijuana effectively break the state’s new possession laws. Prosecutors cannot pursue these cases and now face having to dismiss them and allowing the accused individuals to walk free.
District attorneys in nearly every county in Texas also acknowledge their challenges because of the new house bill. They plan on evaluating each case on an individual basis. They admit that they do not know what they are going to do right now because the limitations of the state’s labs prevent them from being able to prove their case beyond a reasonable doubt.
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Texas has 30 different laboratories that are capable of performing tests on drugs seized by law enforcement. None of them are currently capable of determining the amount of THC in marijuana, however. They cannot tell if a sample of marijuana has a THC concentration of higher than 0.3 percent.
To upgrade these labs so that they have this capability, each of them would require a $500,000 investment. The entire bill to bring the state’s labs up to date would cost $15 million.
Some of the district attorneys in the state admit that the cost may not be worth the investment. What good would it do to spend this amount of money just to be able to bust a young adult who happens to have a couple of joints in his or her pocket?
At the same time, many DAs admit that state legislators may have passed HB 1325 inadvertently. They arguably did not realize what they were doing or what impact the bill would have on prosecutors and law enforcement around the state. Passing the bill now puts the burden on Texas to either put up or shut up when it comes to prosecuting people for possession of marijuana.
It also forces the legislators’ hands in considering whether or not to legalize marijuana entirely. Why spend the money to prove the amount of THC in marijuana seized from a person? Some attorneys admit that it would be easier for legislators to legalize marijuana possession and to tax it like substances such as cigarettes or alcohol.
Legalizing marijuana would also free up police resources throughout the state to pursue other crimes that afflict many counties, especially those around urban areas like Dallas and Houston. Prosecutors admit that there is little sense in taking an officer off the street for the day to pursue a marijuana possession case that could otherwise be settled with a ticket and court appearance or avoided entirely if marijuana were legalized.
Given these arguments, some DAs in Texas predict that legislators could legalize the sale, use, and growing of marijuana in the next few house sessions. House Bill 1325 admittedly paves the way for the legalization of marijuana sooner rather than later.
House Bill 1325 in Texas poses a unique challenge to police officers and prosecutors in the state. They now face the burden of proving the level of THC concentration in marijuana.
Because labs in Texas have no ability to make this determination, DAs are faced with allowing marijuana users to walk away rather than be jailed. The bill could open the doors soon for marijuana to be legalized in Texas.
