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Medical Marijuana Is A Long Shot This Legislative Session

Some medical pot purchased legally in California. The odds of the Texas legislature moving to tolerate medical pot are slim this session, according to an Austin lawmaker who keeps pushing the issue.
Image courtesy eggrole
Some medical pot purchased legally in California. The odds of the Texas legislature moving to tolerate medical pot are slim this session, according to an Austin lawmaker who keeps pushing the issue.

While states like California and Washington debate the merits of legalizing marijuana for recreational use, Texas State Rep. Elliot Naishtat (D-Austin) couldn't even get a hearing on his conservative medical pot bill. Naishat's proposal wouldn't legalize marijuana, but it would permit judges and juries not to send legitimately sick people to jail if they're caught puffing weed on the advice of a doctor.

Naishstat says he will file a similar version of his bill again for the 2011 legislative session, which begins next month. KUT News talked to him about the politics behind medical marijuana in Texas, and whether he could recruit any support from the Republican supermajority in the House.

KUT News: Tell us about your medical marijuana bill.

Elliot Naishtat: I've introduced basically the same bill the last three sessions. It doesn't legalize anything. It would create an affirmative defense to prosecution for patients who are being treated by a licensed physician and who use marijuana to ameliorate the effects of a bona fide medical condition.

KUT News: What does that mean in layman's terms?

Naishtat: It means that if you have cancer, multiple sclerosis, AIDS, nausea associated with chemotherapy, eye pressure from glaucoma or muscle spasms from neurological disorders, and if your doctor, a licensed physician suggests or recommends that you try medicinal marijuana to deal with the suffering, the chronic and debilitating pain associated with these diseases, and then if you're arrested, you could go into court and stand before a jury or a judge and say, "Look at me. I'm not a criminal. I have multiple sclerosis. This is helping me to work and live without debilitating pain. Please let me go home."

The jury or the judge would be authorized by this legislation to let the person go home. That's why it's called an affirmative defense. He's not going to deny he was using marijuana for medicinal purposes.

As far as what other states have done, it's way down at the least controversial end of the scale, especially in that it doesn't legalize anything. You could say it would simply allow a defendant to prove in court that he or she was using marijuana pursuant to a doctor's recommendation to relieve the pain associated with a recognized medical condition. I like to say a "bona fide" medical condition.

KUT News: What kind of political support have you had for this bill in previous legislation sessions?

Naishtat: Three sessions ago when I first introduced it, I had two joint authors, cosponsors. One was the chairman of the Criminal Jurisprudence Committee, a Republican named Terry Keel, and the other was Suzanna Hupp. She's a Republican but more a Libertarian. We thought we would get the bill out of committee, into calendars and to the floor that session, but it didn't happen because one member of that committee changed his mind about voting the bill out of committee.

The last two sessions, the bill has been referred to the Public Health Committee on which I know serve. But the chairs, in both cases, asked me to please not request a hearing. They said it would be a waste of time, that the bill would have no chance of passing. So the last two sessions, we did not have hearings on the bill.

Both chairs of the committee, Dianne Delisi two years ago and Lois Kolkhorst last session shared with me their belief that it would be a waste of the advocates' time, that it would be a waste of the time of somebody with AIDS or cancer or multiple sclerosis to come down and have a hearing when both chairs told me the bill would not be voted out of committee. Chairs of committees have that power.

KUT News: You've crafted the legislation to take the most conservative approach imaginable. What is the root, in your view, of the political opposition?

Naishtat: I think members of the legislature don't want to be accused of being, quote, soft on crime, soft on drugs. I think it's a misperception of what this bill is all about, but I think that's the problem.

I've had members, Democrats, come up to me and say, "Elliott, of course your bill should pass. It's going to help sick people, but I can't support it because my cousin is a sheriff," or, "because my cousin is a district attorney."

KUT News: Our political reporting partner, The Texas Tribune, published a piece earlier this month that suggested lawmakers who affiliate with the Tea Party movement may lend support to a medical marijuana initiative. What's your view of that idea?

Naishtat: I will work with any members of the legislature and any organizations that are interested in seeing legislation pass that would basically authorize the use of medicinal marijuana if the two conditions are met: a bona fide medical condition and a doctor suggesting or recommending its use.

Four years ago, Jim Jackson, who's a Republican from [the Dallas suburb of] Carrollton, signed on as a joint author. Last session, he did not. I'm hoping that this session, he will want to get more involved in this legislation. I’m planning on meeting with individuals connected with the Tea Party to see if we can put together a bipartisan, liberal-conservative coalition to work on this bill.

KUT News: It's 2010. Some states have virtually legalized marijuana. Here in Texas, you can't even get a hearing on your bill. Is there really opposition among constituents? Or is it just a perception among legislators that there is opposition among constituents?

Naishtat: This is my opinion. I think it's a perception amongst legislators. I don't know if you had a chance to see the Time Magazine article I referenced in my interview with [Texas Tribune reporter] Julian Aguilar. It's a November 22 issue. The cover of Time that week was "The United States of Amarijuana". In the article, it says, "Legalization of marijuana has gone up in smoke, but medicinal pot has gone mainstream."

The fact of the matter is, thirteen states have authorized the use of medicinal marijuana in one way or another. If we have Time Magazine talking about medicinal marijuana going, quote, "mainstream,"  I think it greatly increases the chances that not only will be get a hearing in the bill, but linking arms with Tea Party and conservative Republicans, I think we may be able to move this.

On the other hand, this is Texas, and I'm not overly optimistic. But I'm certainly more optimistic than I was before it came to my attention that there are different forces at play here, that it can be characterized as a conservative bill, and I have no problem with that. And that there may be new members, especially new members, of the Texas House of Representatives who may not be officially affiliated with the Tea Party who may think this is a good way to help people who are sick.

KUT News: Your district covers Austin. What do your constituents say about this issue?

Naishtat: I have never had a discussion with a constituent in District 49 who didn't whole heartedly support what I've been trying to do. My constituents, certainly the ones with whom I've discussed this and spoken, understand that this bill is intended to help people who are sick. That's all it's about. It doesn't legalize anything.

If this bill passes, it would send a very strong message to law enforcement throughout this state that they shouldn't automatically harass, hassle or arrest an individual who clearly has a bona fide medical condition, who's using marijuana for medicinal purposes.

This will send a message that law enforcement shouldn't be wasting its time, energy, resources, money on people who are legitimately sick and who are doing what their doctor recommends. I think that's beginning to happen anyway in Texas as a result of pursing this legislation for the last three sessions.

Nathan Bernier is the transportation reporter at KUT. He covers the big projects that are reshaping how we get around Austin, like the I-35 overhaul, the airport's rapid growth and the multibillion dollar transit expansion Project Connect. He also focuses on the daily changes that affect how we walk, bike and drive around the city. Got a tip? Email him at Follow him on Twitter @KUTnathan.