The state's top leaders are reminding prosecutors that marijuana is still illegal in Texas.
The letter from Gov. Greg Abbott, Lt. Gov. Dan Patrick, Texas House Speaker Dennis Bonnen and Attorney General Ken Paxton comes after district attorneys in major cities said they have effectively stopped prosecuting low-level marijuana possession cases since House Bill 1325 went into effect on June 10.
Because of that bill, which set up a state framework for regulating hemp in the state, evidence in marijuana cases would need to be lab tested to determine whether it's marijuana or hemp before a person is charged.
The state's distinction between the two is based on the federal classification outlined in the 2018 Farm Bill, which legalized the sale and regulation of hemp crops with concentrations of tetrahydrocannabinol (THC) – the psychoactive ingredient in marijuana –below a 0.3%.
But district attorneys across Texas have argued testing to determine that concentration is financially and administratively burdensome. As a result, they're not prosecuting marijuana possession cases with fewer than 4 ounces.
The letter from state leaders urges prosecutors to continue charging people with possession, as marijuana is still illegal.
"This regulation of hemp did not abolish or reduce punishment for the possession of marijuana, which remains illegal under state law," they wrote.
Officials say the state law requires certification to transport hemp, and that not having a certificate is a civil misdemeanor punishable by a $500 fine. The letter also pushes back on the central tenet of prosecutors' argument: that testing evidence to determine if it's weed is too expensive.
"Even before the passage of H.B. 1325, companies and labs were already developing THC concentration tests," they wrote. "As more companies enter the testing marketplace, the costs of the tests will certainly decline, and you may weigh which prosecution method is appropriate."
Earlier this month, Travis County District Attorney Margaret Moore dismissed 32 felony cases of marijuana possession, and County Attorney David Escamilla dismissed 61 misdemeanors for possession. After the announcement of those dismissals, Moore told KUT that the evidence testing would be cost prohibitive for the county.
“We would have to find an outside lab that has the capacity to do it and we would have to find the money to pay for that testing,” she said, adding that the county would also have to pay for a representative from that third-party lab to testify in court.
Escamilla, who is responsible for prosecuting misdemeanor marijuana possession cases in Travis County, said he was disappointed the letter "did not acknowledge their responsibility of being asleep at the switch for allowing passage and signing of such a flawed bill.”
He said his policy has not changed and his office will not be able to proceed with these cases if there's no lab report.
“I don’t think any of them have any experience with prosecuting marijuana cases before a jury and especially in Travis County," he said.
Moore had said earlier she believes Travis County should save resources and lean on public health, rather than law enforcement, to address drug use and keep drug cases from clogging dockets.
This post has been updated.