Did Texas accidentally decriminalize small amounts of pot?

Texas Politics

AUSTIN (KXAN) — 93 drug cases in Travis County were dismissed because the Texas legislature passed and Governor Greg Abbott signed a bill to legalize hemp, according to county prosecutors.

Travis County Attorney David Escamilla rejected 61 misdemeanor charges from law enforcement after the law took effect June 10th; District Attorney Margaret Moore dismissed 32 felony charges. The two attorneys met with area law enforcement Wednesday to discuss the unintended consequences of the new law. The crux of the problem for prosecutors is both hemp and marijuana are cannabis. In short, according to prosecutors, it is too difficult to tell the difference between the two.

Moore spoke to the press Wednesday night and told KXAN “There is no lab capability in Texas right now.” If prosecutors want to test for THC levels they must go out of state which Moore says, “nobody has budgeted for.”

Escamilla has directed law enforcement that his office will accept no charges for misdemeanor possession without a lab report submitted with it. Moore asks law enforcement not to submit felony charges without consulting her office first.

“Neither APD nor DPS, which handles analyses for TCSO and other law enforcement agencies in Travis County, have the capability to do this analysis,” wrote Moore in a public statement.

Earlier this year, the Texas legislature overwhelmingly passed and Gov. Greg Abbott signed House Bill 1325. It had so much support it became effective immediately when the Governor signed it, on June 10th. The bill allowed farmers to grow and sell hemp products with THC — the psychoactive compound of cannabis — levels at 0.3% or less.

Earlier this week, the Harris County District Attorney Kim Ogg announced her office would not accept charges for four ounces of marijuana or less from law enforcement, according to a report by Houston NBC affiliate, KPRC. Very few labs across the state test for certain levels of THC because until this new law, all cannabis was against the law.

Until HB 1325, the state defined hemp and marijuana the same. Unlike high-inducing pot, hemp has too low levels of THC for someone to get high on.

The Hays County DA, Wes Mau told KXAN they won’t simply dismiss the cases but he does expect changes but its too early to tell what those changes will be.

“We are aware of the issues relating to lab testing of marijuana, but we are not likely to simply dismiss all marijuana cases as a result,” he wrote in an email,” Balancing the need to timely resolve cases with increased delays necessitated by laboratory demands will be at least as great a concern as the costs involved.”

In October 2018, during his only debate with contender Lupe Valdez, Abbott said he would be willing to consider legislation that would reduce possession of up to two ounces.

“One thing I don’t want to see is jails stockpiled with people who have possession of small amounts of marijuana,” Abbott said during the debate.

Jax Finkel, the Texas Executive Director of the National Organization for the Reform of Marijuana Laws, says these recent moves continue a trend.

“People are just having a conversation of where should our tax dollars be spent on crimes and clearly low-level offenses, where people aren’t really bothering anyone, have really become not a priority for the general public,” said Finkel.

Travis County already lenient

Beginning in January 2018, people could avoid criminal charges if caught with a small amount of marijuana in Travis County, less than two ounces.

The Travis County Commissioners Court voted to allow low-level offenders to take a four-hour marijuana class rather than going through the court system.

Assistant County Attorney Dan Hamre said at the time it would ease some of the burdens on the county’s clogged court system while allowing low-level offenders an affordable second chance at not having a criminal record. According to Hamre, the County Attorney’s Office files more than 3,000 marijuana cases a year, the vast majority are minor possession cases.

Someone faces a Class B misdemeanor, punishable by up to 180 days in jail and up to a fine up to $2,000 if they are caught with two ounces of pot, per state law.

APD already has cite-and-release

In the fall of 2018, the Austin Police Department implemented its cite-and-release policy. Under that policy, APD issues someone a citation – no longer arresting – for small amounts of marijuana unless certain requirements are met. An officer can still arrest someone if the officer believes someone’s property would be in danger, the person refuses to sign the citation, the person appears to have a sexual motivation, or if the person cannot be identified.

APD Assistant Chief Troy Gay noted at the time that marijuana possession makes up about 44% of all APD Class A and B misdemeanor citations. Because it is APD’s policy to take marijuana away if they find it on someone’s person, APD assumes the criminal behavior stops at that point.

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