The Bexar County Crime Lab will begin testing suspected illegal cannabis in March.
The county currently faces a backlog of more than 100 felony possession cases, the oldest of which dates back to 2016. Possession of more than 4 ounces of illegal cannabis is classified as a felony.
The county began sending evidence to an out-of-state lab in October. According to Christian Henricksen, the chief of litigation with the Bexar County DA’s office, the first test results came back last month — more than 60 days later.
“When we first talked to them, they said that they would have a 30-day turnaround,” he said. “And I think they just got inundated… it's not only Texas that’s been having this problem. It's been a problem in other states as well, so I think they were inundated with work.”
The testing complications were caused by House Bill 1325, which passed in June and defined legal hemp as containing 0.3% THC or less. THC is the primary psychoactive component of cannabis. Legally, cannabis with more than 0.3% THC is classified as illegal “marijuana.”
With the new definition of legal cannabis, prosecutors faced an additional hurdle. Before the law took effect, they only had to prove that a cannabis sample contained THC. Now, they have to prove samples contain more than 0.3% THC.
Frank Synder is a professor at the Texas A&M School of Law, where he teaches and researches cannabis business and regulation. He said some law enforcement organizations saw the testing problems as an opportunity to no longer arrest and prosecute for certain drug offenses.
“They've always thought of it as something of a chore,” Synder said. “And to some extent, the recent problems with being able to test has given them an excuse not to spend their time on low-level marijuana.”
Bexar County’s backlog could be worse. In May, the DA’s office launched a declination policy for cases involving less than an ounce. Those cases are now automatically declined, and that policy is in effect in several counties across Texas. Bexar County doesn’t directly track the number of cases declined.
In 2018 — before the declination policy went into effect — 4,978 cases concerning possession of less than 2 ounces were filed. Between Jan. 1, and May 19, 2019, the office filed 1,641 cases.
As of Feb. 14 of this year, only 330 cases have been filed since May 20, 2019 — the day the declination policy went into effect.
Bexar County also launched a cite-and-release program last year. Rather than arresting and prosecuting misdemeanor possession cases, suspects usually receive a ticket and go through a pretrial diversion program involving fines and courses. If a suspect completes the program, no offense appears on their record.
Since June, more than 1,000 cases that previously could have led to arrests and prosecutions have instead been sent through the cite-and-release program.
The new testing equipment in the Bexar County Crime Lab will be used primarily for felony cases.
Dominic Anthony can be reached at Dominic@TPR.org and on Twitter at @_DominicAnthony.
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