Texas' marijuana laws are in flux, the effects of which are being felt throughout the state. As lawmakers tout the agricultural and economical benefits of hemp farming, those who enforce the law continue to execute and prosecute marijuana laws while scrambling to legitimately identify the difference between the two.
In June, Gov. Greg Abbott signed a bill into law legalizing hemp and hemp-derived products like CBD oil, and the legal definition of marijuana changed from cannabis to cannabis that contains more than 0.3% of tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.
Cannabis below that level is now legal hemp.
So how does law enforcement tell the difference? And what about all those pending marijuana cases?
The sudden change created major upheaval for prosecutors handling marijuana charges under the new law. District attorneys have said testing THC levels is now required to prosecute low-level marijuana cases since, without it, a defendant’s claim that a substance is hemp would cast too much reasonable doubt over criminal proceedings.
Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and Texas Attorney General Ken Paxton sent a letter July 18 to Texas district and county attorneys, emphasizing that a new hemp law does not decriminalize marijuana.
“Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas,” the letter stated.
The problem is the state's public labs don’t have equipment or a process to measure THC concentration.
But forensic experts are hopeful that state and local officials will support a new proposal allowing for a faster, cheaper way to test suspected marijuana under the state’s new definition of the drug.
However, even if law enforcement and crime labs agree to move forward with the proposal, it would still be months before labs could start testing cases. And there are still some big questions to answer, like who would pay for these additional resources.
“We do not have money budgeted to have misdemeanor amounts of marijuana tested in the private labs, assuming that the labs would agree to test it for us,” said Will Dixon, Navarro County District Attorney.
Dixon said that, currently, there are only two private labs in Texas that can test the quantity of THC, and it will be approximately one year before DPS labs can perform the testing. After that, forensic scientists will need to complete training, which could take another few months.
“We will continue to enforce the law,” Dixon said. “Marijuana is still illegal. However, the state of the law is in flux.”
At first, crime labs estimated that necessary testing equipment would cost up to $500,000 per machine, then the labs would have needed to complete an accreditation process that could take a year or more before they could test samples for law enforcement.
Now, local officials are considering the use of the approach used by the U.S. Drug Enforcement Agency in 2018, which worked to distinguish hemp from marijuana when the U.S. farm bill legalized hemp on the federal level.
By conducting an initial series of tests that indicate if a substance has above or below a 1% THC concentration, slightly higher than the legal cutoff, forensic experts are hopeful that this will satisfy most law enforcement needs, since almost all marijuana prosecutions involve THC concentrations of 12% or higher.
Since Texas labs already have the equipment needed to perform these tests, expected costs and implementation time would decrease, as the cost of the proposed testing equipment is estimated to drop to $75,000 per machine.
The tests used by the DEA would also take much less time, about an hour instead of two days, putting less of an additional strain on the crime labs.
However, time and money remain key factors. Adding a large new caseload of suspected marijuana samples to already backlogged crime labs would still create a need for more employees and equipment.
If approved, the plan would be for The Texas Department of Public Safety, which operates 13 crime labs, and local labs to work with forensic experts to ensure the DEA testing works in Texas.
Despite the apparent agreement among experts on a plan of action, one question remains unanswered: Who's going to pay for it?
The hemp bill was passed without any dedicated funds attached to it, and Gov. Abbott has yet to announce a plan for funding the new testing, although his letter stated that testing costs would be much less than originally expected.
In the meantime, the Department of Public Safety, Texas’ largest law enforcement agency, is moving away from arresting people for low-level marijuana offenses.
Prior to the Governor's letter regarding the new hemp laws, a directive issued July 10 all Texas DPS officers instructed them to issue a citation for people with a misdemeanor amount of the suspected drug when possible.
The citation for misdemeanor charges requires a person to appear in court to face up to a year in jail and fine of $4,000.
“Departmental personnel are expected to continue enforcing marijuana related offenses. However, effective immediately, personnel will cite and release for any misdemeanor amount of marijuana,” the interoffice memo stated.
Increasingly, law enforcement agencies have implemented cite-and-release policies for low-level charges.
Some counties, like Navarro, also offer defendants a diversion program with alternative sentencing options rather than spending time in jail, providing offenders a second chance and the opportunity to keep their record clean.
“Our office has implemented a pretrial diversion program for class B misdemeanor possession of marijuana cases,” Dixon said. “Only those without any criminal history are eligible for the program, and those in the program will report to the Navarro County Probation Department.”
Navarro's pretrial diversion program would require that the defendant attend a drug class, report to a probation officer and submit to a drug screen.
If the defendant meets the conditions and fees imposed and stays out of trouble, the case against them would be dismissed after six months. If not, the judgement would be entered against them and the defendant would abide by the punishment determined by the court.
Growing industrial hemp in Texas is not yet legal. Although House Bill 1325 has been signed into law, it still requires the establishment of licenses, fees, criminal offenses and civil and administrative penalties.
The U.S. Department of Agriculture must finalize federal regulations and guidelines, followed by the writing of state regulations and guidelines by Texas Department of Agriculture for the approval of the USDA.
In response, Texas A&M AgriLife Extension Service has formed an Industrial Hemp Education Initiative Team to provide information concerning industrial hemp production in Texas.
Once regulations are in order, AgriLife Extension’s industrial hemp education team will help develop resources for agents and specialists to use across the state in producer and public education programs.
Texas Agriculture Commissioner Sid Miller has said he believes hemp production will start in Texas next year.
The law lets Texas stores continue selling hemp products such as CBD oil if they contain less than .3% of THC. However, those stores can't renew their supplies until manufacturers comply with the new testing and labeling requirements yet to be established.
It also requires retail stores planning to sell CBD products to register with the state’s health department.
U.S. hemp industry sales topped $1 billion last year and are expected to more than double to $2.6 billion by 2022.
According to projections, the CBD market is expected to exceed $20 billion by 2022.
For now, would-be Texas hemp producers await the green light to begin industrial cultivation and CBD oil sales in Texas still come with a “buyer beware” disclaimer.