There’s been a lot of confusion about the difference between marijuana and hemp since Texas legalized the production and sale of hemp in June.
The short? Marijuana is still very much illegal at the state and national level. But the new law created a distinction that’s left some prosecutors in a bit of a pickle.
Before the law was passed, any substance that tested positive for THC, the chemical compound that gets people high, was considered marijuana. Hemp and marijuana are both classified as cannabis, but hemp has a THC content of no more than 0.3%. Texas, however, didn't have the equipment or accreditation necessary to test for that distinction.
Frank Snyder, a law professor at Texas A&M University, says lawmakers could have delayed implementation of the bill so testing protocols were in place. Testing was just not something that came up a whole lot at the Capitol this session.
“What they’ve done is make it very difficult to enforce the law for many prosecutors. They’ve added to the complexity of doing it,” Snyder said. “It’s not impossible to prosecute now, but it is much more difficult than it used to be.”
The inability to properly test products led the Travis County district attorney and other Texas DAs to begin rejecting low-level possession of marijuana charges while the state scrambles to find a solution.
While these possession charges are being rejected, that doesn’t mean they've been dropped for good. There is a two-year statute of limitations for misdemeanor possession of marijuana. Snyder said it’s very likely the cases could be accepted once a proper lab analysis has been conducted.
“There are a number of people in law enforcement, especially in larger cities, that have been frustrated by the amount of resources spent on going after low-level offenders,” Snyder said. “There are others however for whom that is still a significant priority.”
Three months later, the state is still waiting on federal guidelines from the Department of Agriculture for state hemp programs. Once that happens, Texas can adapt its own plan and be on the road toward hemp production and sale.
But now some state authorities are exploring new testing solutions that could quantify the THC amounts in marijuana and hemp.
At the most recent meeting of the city’s judicial committee, Austin Police Department Chief of Staff Troy Gay said the department believes not enforcing marijuana laws will not make Austin any safer. And now, APD is going to continue arresting and citing for low-level marijuana possession.
“Our department has been working diligently with the Department of Public Safety, the Texas Forensic Science Commission," he said. "We’ve had conversations with the DEA, who are looking and developing protocols and procedures for the testing of ... THC.”
Gay said APD has one machine that can test for THC right now. But there aren't any protocols in place for the county to conduct the tests.
Council members Delia Garza and Greg Casar, both members of the judicial committee, expressed concerns about spending “scarce taxpayer funds” on new equipment.
“It’s just concerning that we have our police officers spending time enforcing something, writing probable cause affidavits and citing for what is an issue that many states have decriminalized and reversed their policies on,” Garza said.
Some members of the public said they don’t believe APD should be spending any resources to solve a problem created by state legislators. Many pointed out that possession of marijuana cases disproportionately affect people of color.
Nor do some believe APD should issue citations for charges that will be rejected until a proper testing solution is found.
Emily Gerrick, an attorney with the Texas Fair Defense Project, told the committee it’s a “tremendous waste of resources” to continue citing and arresting for marijuana, especially given the backlog of serious crimes.
Right now, if you're a Travis County resident pulled over within the county limits with marijuana on your person, one of two things will happen. Depending on the amount you're carrying, you'll either be arrested for possession of marijuana and have your weed confiscated, or you'll be written a citation to show up at court (and your weed will still be confiscated).
Justice of the Peace Nicholas Chu handles possession of marijuana charges issued in Travis County. Since the hemp bill was signed into law June 10, Chu says, there have been at least 170 cases rejected by the county attorney.
“What we’ve been doing is sending the case over to the county attorney’s office before we even start processing that case so they can review [it] and reject or dismiss,” he said. “Once the county attorney’s office submits that rejection charge letter to us, we’ve been notifying the defendants."
Chu said the Travis County attorney's office agrees these cases will continue being rejected without a proper lab analysis.
At the committee meeting, Mayor Pro-Tem Delia Garza asked Gay if APD would be willing to change its policy on marijuana citations if the data show there was little-to-no negative effect on Austin.
Gay said APD continues to be flexible and pointed to the end of juvenile curfew, saying the evidence showed no increase in juvenile crime or victimization.
“I think we are a progressive department that is always looking to do the best for our community," he said. "But ultimately, we want our community to be safe."
Gay said APD will likely buy new testing equipment and train people to use it in six to 12 months. He pushed back against criticism about allocating resources to buy new equipment, saying it will be necessary to pursue felony cases as well as misdemeanors.
The Texas Department of Agriculture is expected to establish rules in the next six months for growing hemp. And there could be a solution to the testing problems by next year. Last month, Texas Public Radio reported the Texas Forensics Science Commission is developing a test that could test marijuana and hemp to a concentration of 1%.
In the meantime, Chu said it’s “wasteful” for APD officers to spend time and resources on possession of marijuana cases.
“If you look at the whole reason behind the cite-and-release process to begin with ... it was created so law enforcement wouldn’t be wasting their time on low-level nonviolent misdemeanor offenses," he said. "And also wasting people’s time in terms of worrying about these cases when law enforcement can be focused on more important, serious violent offenses.”