When Texas Legalized Hemp, It Forced Some Counties To Change How They Prosecute Pot
Earlier this summer, Tarrant County District Attorney Sharen Wilson did something unusual for an elected prosecutor. She dropped the charges in 234 cases all at once.
They were all misdemeanor marijuana possession cases all filed after June 10, the day that hemp became legal in Texas. And a bunch of DAs across the state did the same thing.
"I don't know that the Legislature had an intent to legalize marijuana," she said. "They just made it much more difficult to prosecute."
When the Texas Legislature met earlier this year, lawmakers looked at dozens of bills that would have expanded access to marijuana. In the end, none of them passed.
Texas lawmakers, however, did legalize hemp, and this has forced some counties to change how they prosecute pot possession.
Lots of states are legalizing hemp because Congress lifted a federal prohibition on hemp production in 2018.
The thing is, hemp and marijuana — they're both strains of the cannabis plant.
"You know what's interesting to me 'cause I grew up rural Texas — it's the exact same plant," Wilson said. "It's not like you're driving down the highway and you say, 'Oh, that's wheat over here, and this is cotton over there.' It is the exact same plant."
So in order to legalize hemp, lawmakers had to redefine marijuana, and they did that by the amount of THC in the cannabis. That's tetrahydrocannabinol, the stuff that gets you high in pot.
"Now, for us to prosecute a marijuana case, we have to be able to prove that it's marijuana," Wilson said.
Proving it's marijuana now means proving it has more than 0.3% THC. Here's the problem: Only one lab in the whole state of Texas is certified to do this kind of testing in-house.
Peter Stout heads the Houston Forensic Science Center.
"Since we haven't had to do that kind of testing before, really none of the crime labs are configured to do that," he said. "It's expensive; it's difficult; it's time-consuming."
Before the law changed, all crime labs had to do was say if there was THC because if there was THC, it was illegal marijuana. Now the labs need to prove how much THC there is.
Florida, Ohio, Tennessee — other places that have legalized hemp but still criminalize marijuana — they're all struggling with this, too. Crime labs in Texas say it will likely take months, still, to get up to speed.
Stout says it'll make prosecuting pot cases more expensive, too.
"Millions — whether that's $5 million or $15 million, I can't really nail it down yet," he said.
Since the new law went into effect, prosecutors in a lot of the big Texas counties have started requiring police departments to get lab reports proving that pot is pot. But the lack of labs able to do the reports has slowed down low-level marijuana prosecutions in some counties. In some others, they've all but stopped prosecuting misdemeanor pot cases.
Jax Finkel from the pro-legalization group Texas NORML says this patchwork mix might be a good thing.
"I'm hoping that this testing time frame, this little experiment that these urban areas are going to get to have, can show that it's really not worth the investment," Finkel said.
Recent polls of Texas voters show broad support for medical marijuana or decriminalizing small amounts of pot. There's even majority support for fully legalizing recreational marijuana for personal use. Getting any of that through the Legislature, though, will likely remain a challenge.