Seven months ago, the Texas House of Representatives and State Senate unanimously voted for hemp legalization. That decision is having major repercussions on the way the state prosecutes marijuana possession, mainly because law enforcement has very limited resources when it comes to knowing the difference between marijuana and hemp.

The very month that Governor Greg Abbot signed hemp legalization bill HB 1325 into effect, complications became apparent. In Tarrant, Texas’ third most populous county, the district attorney immediately dismissed 235 marijuana cases. His staff had no way of determining whether the individuals who had been charged had been carrying marijuana with over 0.3 percent THC, the state of Texas’ definitional limit for hemp.

There was no allowance in HB 1325 made for additional crime lab funding. So after the hemp bill, court data shows that the number of marijuana-related cases dropped sharply. In the early months of 2019, law enforcement was processing some 5,600 cases a month. After the passage of HB 1325, that number was halved. In November, only 2,000 cases were filed.

Not everyone thinks that’s a bad thing.

“It means that there are fewer Texans that are getting slapped with a criminal record for marijuana possession, something that is already legal in other states,” said Rice University’s Baker Institute for Public Policy drug policy fellow Katharine Harris.

A Testy Subject

You can’t figure out THC percentage in cannabis by eyeballing it. Texas police agencies don’t currently have the technology to conduct necessary tests, so to prosecute people for marijuana possession, they must send the drug that was involved in the arrest to a private lab.

Some cities have decided prosecuting marijuana cases was worth the additional cost. In North Texas, Frisco, and Plano — where the city council earmarked special funds for the process — authorities say that all potential cannabis-related crimes continued to be prosecuted, often involving a cost of hundreds of dollars per test.

Elsewhere in Texas jurisdictions unable to shoulder the financial burden of such tests, authorities have sent cannabis to be tested to the Department of Public Safety in the hopes that they will be reviewed when the DPS’ new testing procedures are set.

The new testing procedures will be able to determine if seized marijuana flower — but not vaporizer cartridges or edibles — clock in at over two percent THC, a limit that authorities acknowledge does not match the state’s cutoff between marijuana and hemp, but will still be useful for law enforcement. The DPS says the new procedures will be announced within the next month.

Some are concerned about the potential backlog of cases that will await the eventual implementation of these new tests.

“One decision for prosecutors and law enforcement agencies and the labs is: How do they triage these cases to focus on the most important ones?” said director of governmental relations for the Texas District and County Attorneys Association Sharon Edmonds.

The question seems worth addressing, as many acknowledge that marijuana legalization may still be years away in the state, where some 38 percent of residents say they would be in favor of striking recreational and medicinal cannabis altogether.

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