Marijuana is still illegal, state leaders tell local district attorneys

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AUSTIN (KXAN) — The state’s Republican leaders sent a letter to county and district attorneys Thursday telling them the state of Texas did not decriminalize small amounts of marijuana when the state passed its new hemp law.

The Texas legislature legalized hemp – with HB 1325 – during this last 140-day legislative session. Many district attorneys across the state announced after that law passed, they would not prosecute people caught with small amounts of marijuana. In short, the laboratory work to tell the difference between marijuana and hemp was too difficult and expensive.

Travis County Attorney David Escamilla and Travis County District Attorney at the time announced they would not take-up low-level drug cases unless police brought a lab report proving it was marijuana when they filed charges. In reality, that will keep small amounts of drug charges out of the legal system because most law enforcement agencies use the drug labs at the Department of Public Safety, which cannot successfully test for levels of THC – separating marijuana from hemp in most cases.

Governor Greg Abbott, Speaker of the Texas House Dennis Bonnen, Lt. Governor Dan Patrick, and Attorney General Ken Paxton, wrote to them, “Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works.” According to local attorneys, the letter from state leaders reminded them of their position between a rock and a hard place.

Attorneys describe to KXAN they will continue to bring charges if there is enough evidence to successfully prosecute a case but the law will keep many cases in limbo for nearly a year.

Travis County Attorney David Escamilla, whose office deals with misdemeanors which many low-level drug offenses are, told KXAN over the phone he was “disappointed” the state leaders didn’t think about the ramifications of this law when they passed and signed it.

“No one to my knowledge believes that marijuana is decriminalized” but says the letter is “too little, too late”. His office will not take cases to juries without lab reports attached.

“Our juries expect it,” Escamilla tells KXAN. He wished state leaders gave the Department of Public Safety more money to expand lab capabilities so this law wouldn’t bring confusion or a strain on resources.

Travis County District Attorney Margaret Moore, whose office deals with felonies, larger drug crimes, tells KXAN they will continue to take up charges on a “case by case basis” if they have enough evidence.

She does predict the situation on the ground will not change for another eight to ten months, when the DPS lab can adapt with new equipment and test for more specific levels of THC.

“We knew they did not intend to decriminalize marijuana and we intend to enforce the law. What the new law does do is add an element we didn’t have to prove before (that its marijuana and not hemp) so we have to go about analyzing that. We are working with law enforcement agencies with felony cases, we take them seriously,” said Moore.

KXAN reached out to the Governor’s Office and the Attorney General’s Office for what will happen if local attorneys do not prosecute all drug charges.

“As stated in today’s letter, counties are expected to abide by state and federal law. We anticipate that prosecutors in Texas will fulfill their oath and enforce the law as written,” said Marc Rylander, Director of Communications for the Texas Attorney General’s Office.

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