Hemp is now legal in Texas, thanks to House Bill 1325, which sailed through the Legislature earlier this year. Supporters hailed hemp’s potential economic benefits as a drought-resistant cash crop from which products like clothing and twine, protein powder, moisturizers, and essential oils can be made.
Even though hemp and marijuana come from the same plant, Cannabis sativa, lawmakers had little issue with legalizing hemp because the two have an important inherent difference. You can’t get high from smoking or ingesting hemp or hemp products, because its THC content is just 0.3 percent, whereas marijuana usually contains between 5 and 25 percent of the mind-altering agent. But the Legislature has a knack for inadvertently screwing up a good thing. In the same session that lawmakers managed to temporarily turn every Texan into a plumber, they also effectively decriminalized hemp and marijuana.
HB 1325 essentially changed how the state defines marijuana by legalizing any substances from the cannabis plant with 0.3 percent or less THC content. That unwittingly placed the burden on prosecutors to prove a substance is marijuana based solely on its THC level. Few local agencies in Texas are outfitted with the equipment required to determine THC levels, and outsourcing those tests could prove costly. As a result, some district attorneys are dropping misdemeanor marijuana cases altogether, even as the state’s top leaders sent a letter to prosecutors earlier this month to emphasize that the drug remains very much illegal in Texas.
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Still, the five most populous counties—Harris, Dallas, Travis, Tarrant, and Bexar—have announced that they’re dismissing hundreds of charges and will decline to prosecute minor marijuana possession in the future. While the reactions of prosecutors in the big cities have garnered most of the headlines, Texas Monthly reached out to prosecutors for every county in Texas seeking to find out how they plan to cope with this new legal landscape.
Officials with 88 of Texas’s 254 counties responded to inquiries. (County attorneys or DAs from the remaining 166 counties either did not respond, could not be reached for comment, or declined comment.) Though there was a patchwork of responses to the new law from prosecutors across the state, at least one clear pattern emerged: urban counties seem to be more eager to drop misdemeanor pot prosecutions than their rural and suburban counterparts. Eight of the state’s twelve most populous counties—representing nearly 15 million people, or more than half of Texas’s total population—have paused prosecutions of misdemeanor marijuana cases or declined to accept new cases, and some have also pledged to dismiss pending cases.
In all, about thirty counties have responded with measured leniency toward misdemeanor marijuana cases, ranging from holding cases until lab tests are available to reducing charges to a ticketable offense to outright dismissals.
About half the prosecutors we spoke with—45, to be precise—said they will continue to prosecute misdemeanor marijuana cases as they had before the new law went into effect, though in many cases, it remains unclear how. Others were simply uncertain how they would approach misdemeanor marijuana cases in light of the new law. Perhaps reluctant to shed a tough-on-crime approach popular among Texas conservatives, some officials in smaller counties were critical of their urban peers dismissing cases. Bill Helwig, DA of Yoakum County, a square patch of West Texas with population 8,500, said the new law likely won’t affect how marijuana cases are prosecuted there. “We’re a very conservative county, and I believe that rural counties may view the situation from a slightly different set of glasses,” he said.
Kendall County district attorney Nicole Bishop, whose county just north of San Antonio has a population of about 45,000, likewise intends to continue misdemeanor marijuana prosecutions. Her office also will request restitution from any defendants who insist on lab testing, including seeking more severe punishment in plea deals. “I will not act as an unelected legislator by unilaterally deciding what laws I deem worth it to enforce,” she said. “I will not abandon my sworn duty to follow the law.”
Yet the new law could disproportionately strain the resources of these smaller counties, which are more likely to lack the equipment and the funds to outsource testing. In Beaumont’s Jefferson County, for example, the crime lab recently requested nearly $500,000 for new equipment, employees, and training for distinguishing marijuana from hemp, according to the Beaumont Enterprise.
Jefferson County assistant district attorney Cory Kneeland told Texas Monthly that the new law will “strongly impact” the way his office deals with misdemeanor marijuana cases. Kneeland said Jefferson County saw about nine hundred misdemeanor marijuana cases last year, but that number will likely decrease significantly in 2019. “Because of the prohibitive cost [of a private lab], we have to be selective,” Kneeland said. “If someone is caught with a joint, do I spend hundreds of dollars to mail it off and get it tested? Then if he asks for a trial, we’d have to fly in the lab tech, pay for plane ticket and hotel room. We don’t want to be wasteful of taxpayer money.” Kneeland said he believes marijuana arrests will plummet across the state. “I think this was the first step toward legalization of marijuana in Texas,” he said.
Steve Houston, the district attorney in Brewster County in far West Texas, said the Legislature created another unfunded mandate for local governments. “It requires testing, and they didn’t provide funding for testing,” Houston told Texas Monthly. “I’m not paying for a bunch of testing.”
In this month’s letter to prosecutors from Governor Greg Abbott, Lieutenant Governor Dan Patrick, attorney general Ken Paxton, and House speaker Dennis Bonnen both disputed claims about the high costs of lab tests and downplayed the necessity for any additional testing, suggesting that district attorneys use “the tried and true use of circumstantial evidence.”
Several DAs pushed back against these assertions. Hardeman County’s Staley Heatly said the fact that hemp and marijuana come from the same plant makes testing “absolutely” a must. Patrick Wilson of Ellis County, where Waxahachie is the seat, called the governor’s advice misguided. “There is no circumstantial evidence of which I am aware that would prove the chemical makeup of a substance beyond a reasonable doubt,” he said.
The variety of responses among prosecutors seems to have been a consequence unforeseen by many of the legislators who voted for HB 1325. “It’s one of those things that we did and now we’re looking back saying, ‘Well, we didn’t think about that,’” state representative J.D. Sheffield, R-Gatesville, told Waco’s KWTX.
But according to a Fort Worth Star-Telegram editorial, lawmakers received some inkling of the potential confusion the bill could cause. At a hearing in April of the House Agriculture Committee, Department of Public Safety crime lab director Brady Mills explained that his lab would need to buy new equipment for testing THC levels. There were no follow-up questions from the committee members.
“I’ve never seen a drug case, marijuana or any other type of drug, prosecuted without a lab report,” Hamilton County district attorney Adam Sibley, a former defense attorney, told Texas Monthly. “I don’t think it’s a good idea for us to go to court and ask our juries to convict people when I can’t put a lab person on a witness stand to definitively say, ‘Yes, this substance is illegal.’”
Charles Mendeke, the sheriff in Uvalde County, was more direct in his criticism. “It is the worst bill they have ever passed,” he told the Uvalde Leader-News earlier this month. “They passed it without rules or regulations established, and it has created a law enforcement nightmare.”
Tom Edwards, the county attorney for Motley County in the Panhandle, said the confusion brought on by HB 1325 has caused him to lose sleep. Edwards pointed to a provision in the Texas Code of Criminal Procedure stating that the “primary duty” of prosecuting attorneys is “not to convict, but to see that justice is done.”
“Now that is stronger than horseradish, and I subscribe to it totally,” Edwards said. The dilemma for Edwards—and for many other top prosecutors in counties across the state—is clear: If he can’t determine the THC level of a substance, how can he possibly prove beyond a reasonable doubt that the substance is illegal marijuana, and not legal hemp? Likewise, Edwards noted, if he places a case on hold and waits for months or a year until a lab test is available, then he may be depriving the defendant of their right to a speedy trial.
“I’m reluctant to cross swords with both the governor and the lieutenant governor,” Edwards said, “but when they say ‘prosecute,’ I think it’s ignoring the duty of prosecutors that have to look out for the rights of defendants. I am violating my duty if I go after a criminal defendant with evidence that I can’t prove beyond a reasonable doubt.”
Additional reporting by Joe Levin, Lily Moore-Eissenberg, and Lillian Bautista
Editor’s Note: The map in the story has been removed due to errors in how we categorized certain counties’ handling of marijuana cases. The story was also updated to reflect a more accurate survey of prosecutors’ plans to handle marijuana cases.