José Menéndez, a Democratic state senator representing San Antonio, started thinking about marijuana reform while his father-in-law suffered from lung cancer nearly a decade ago. His father-in-law was old school, a veteran, and despite medical advice that cannabis could ease his pain and keep him more coherent than the gallon-size Ziploc of narcotics he’d been prescribed, he didn’t want to break the law. As Menéndez tries to convince legislators to expand uses for medical marijuana this session, he intends to share stories of people like his father-in-law, appealing to his colleagues’ hearts but also their politics: “I think people just don’t understand, why does the Legislature need to pick what medicine you can take? That just doesn’t make sense,” he says. “Any kind of libertarian, if you have any kind of streak in you, it says, ‘let my doctor tell me … the right medicine for me.’”
If Texas is to legalize medical marijuana, or decriminalize small amounts of the drug like dozens of other states, or go further and join the ten states that now permit the recreational use of marijuana, it’s not going to happen in the interest of criminal justice reform or for potential tax revenue or because polls show that most of the state’s voters support at least partial legalization. No, the greatest hope for proponents of ending prohibition of the drug lies in appealing to the traditional tendency of Texans to believe that government is best which governs least. And Capitol watchers believe Menéndez has the best chance of personalizing his story and appealing to the libertarian streak to get his legislation, SB 90, one of dozens of marijuana-related bills, passed this session.
This libertarian ethos is reflected in the wide range of lobbyists and activists favoring reform. Heather Fazio, the executive director of Texans for Responsible Marijuana Policy, got passionate about pot while volunteering with Texans for Accountable Government, a think tank that aims to rein in the “intrusive and expanding reach of government.” She’s built a coalition of groups from across the political spectrum, including Progress Texas (motto: “we stand up for the left and fight the right”) and its natural enemy, the Texas Young Republicans. In early February, about 300 people listened to Fazio discuss marijuana reform strategy at the organization’s Lobby Day at the Capitol. Ten years ago, perhaps 50 people turned out for the same event.
More than thirty bills and counting, ranging from calls for permitting medical marijuana to decriminalization to full legalization, have been filed this session. Currently, under the Compassionate Use Act of 2015, epilepsy patients may use marijuana produced at three state facilities. But people suffering from cancer, chronic pain, post-traumatic stress disorder, neuropathy, or numerous other ailments that could be treated with cannabis cannot partake, even with a doctor’s recommendation. Menéndez’s bill would broaden the array of ailments permitting access to medical marijuana and set up more dispensaries. A similar bill was introduced by Brownsville Democratic Senator Eddie Lucio, Jr., who chairs the influential Intergovernmental Relations committee.
The punishment for possessing a small amount of marijuana hasn’t changed since 1973: It’s a Class B misdemeanor that appears as a conviction on someone’s criminal record and is punishable by up to 180 days in jail or a $2,000 fine. CBD stores, which sell a combination of hemp and cannabis that lack the psychoactive powers of THC, have recently been popping up in cities like Austin, Dallas, and Houston, but they’re operating in a legal gray area.
Under HB 63, sponsored by El Paso Democratic Representative Joe Moody, people caught with one ounce of marijuana or less would no longer be committing a criminal offense. They would be fined no more than $250 and have no conviction on their record. Moody’s bill has been assigned to the House’s Criminal Jurisprudence Committee, which is chaired by Fort Worth Democrat Nicole Collier. Collier co-authored similar decriminalization bills the last two sessions and has scheduled a public hearing for Moody’s bill March 4.
If legislators voted based on their party platforms, any of these bills would fly through the Lege. Last summer the state GOP made medical marijuana expansion and decriminalization of possession of one ounce or less a plank in the party platform. Yet individual Republicans remain tougher to convince, including the one who would need to sign any bill. Governor Greg Abbott said during a debate last fall that he would support reducing possession of one ounce from a Class B to a Class C misdemeanor but keep it a criminal offense. He’s not on board with expanding medical marijuana beyond the limits of the Compassionate Use Act.
The governor’s comments will likely hang over the legislature, providing confidence that some reform could pass, though perhaps not the more sweeping proposals. James White, a Southeast Texas Republican who authored a decriminalization bill in 2017 that would have created a specialty court for first-time offenders and spared them from conviction, says he likely won’t file it again this year. He believes that bills following Abbott’s desire of reducing possession of an ounce to a Class C misdemeanor and keeping it a criminal offense—such as HB 335 by Houston Democrat Harold Dutton—have the best opportunity to pass. “Right now that seems like the low-hanging fruit,” White says.
For Menéndez’s medical bill to go the distance, he will first have to win over Republicans like Lois Kolkhorst, chair of the Texas Senate’s Committee on Health & Human Services, who possesses significant influence over whether any of the reform bills will advance to the floor for a vote. He plans to appeal to her by finding constituents in her Brenham district with serious medical issues who need access to cannabis and by playing to the conservative bent against government interference. A spokesperson for Kolkhorst did not respond to a request seeking her views on marijuana. As chair of the House Public Health Committee in 2013, Kolkhorst declined to bring a measure to vote that would have helped protect Texans from a marijuana possession charge if they had been recommended medical cannabis by a doctor. She did vote in favor of the Compassionate Use Act in 2015.
As for the prospect of Texas fully legalizing the drug, even Menéndez is hesitant to discuss that. “I don’t want to give anybody ammunition. [Legalization is] a different public policy,” he says. The lone action so far this session seeking the end of marijuana prohibition has been a joint resolution by Democratic El Paso senator José Rodriguez, but Fazio says that measure has little chance of success.
Rodriguez isn’t the first Texas legislator to attempt full legalization. Republican David Simpson, well known for his libertarian views, beat him to it, sponsoring a bill in 2015. The former Longview state representative stated that he believed God made cannabis and therefore the government had no business regulating its use. Simpson’s bill was approved by the Criminal Jurisprudence Committee but didn’t reach the House floor. Simpson lost a state senate primary in 2016—though he says distortion of his immigration views likely cost him more than the marijuana bill. He’s grateful for the many marijuana reform measures circulating in the Legislature this year, but believes that none of them go far enough.
“Government usually doesn’t do it the right way in one step,” Simpson says. “Maybe someday it will.”