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The Implications of the New Texas Hemp Law on Pot Possession Cases

Criminal Law Blog by The Law Office of Greg Tsioros

The Implications of the New Texas Hemp Law on Pot Possession Cases

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Like the majority of states, Texas outlaws the use, production, and transport of marijuana. However, thanks to the recent passage of House Bill 1325, prosecutors and law enforcement in Texas now face unique challenges in arresting and convicting people of this offense. Also, it could soon pave the way for Texas to become the next state to legalize marijuana entirely.

More about House Bill 1325

House Bill 1325 was passed in June 2019. It decriminalized the use, production, and transport of hemp in the state of Texas.

This new law now defines hemp as the part of a cannabis plant that contains a concentration of THC, the chemical in marijuana that causes users to get high, of 0.3 percent or less. If cannabis or a derivative has a THC concentration of higher than 0.3 percent, it is legally classified as marijuana.

Specifically, HB 1325 legalizes products like CBD oil in Texas. It also complements an already existing U.S. law that permits cannabis to be grown, used, and transported in the U.S. for the creation of products like:

While HB 1325 decriminalizes these products in the state of Texas, it does not, as lawmakers are quick to point out, legalize the use, sale, or transportation of marijuana. People who are found to be in possession of marijuana can still legally be charged, convicted, and sentenced to the fullest extent of the state’s pot possession laws.

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The Dilemma of HB 1325

Proving that people are in possession of marijuana is more difficult now in Texas thanks to HB 1325. The law requires that marijuana be tested to determine its THC levels. If it is found to have a concentration higher of 0.3 percent, it is theoretically in violation of Texas’s drug possession laws.

However, the Texas Department of Public Safety admits that no lab in the state currently has the capability to make this determination. While the state’s drug labs are entrusted to test substances seized during drug arrests, none of them have the equipment needed to detect such a minute trace of THC in marijuana. 

They cannot tell with any accuracy if a cannabis sample is legally marijuana as defined by the state’s new house bill.

Because no lab in the state can make this determination, prosecutors have no way to meet their burden of proving marijuana possession cases beyond a reasonable doubt. They cannot offer offenders a plea deal because they cannot prove to the defense that their clients were in possession of marijuana that has a THC concentration of higher than 0.3 percent.

Furthermore, law enforcement in Texas does not have drug dogs that can distinguish between hemp and marijuana. They may signal that a person is carrying marijuana while in reality he or she is actually in possession of a hemp-derivative.

To complicate matters even more, the Department of Public Safety reports that it would cost the state at least $500,000 to bring each laboratory in the state up-to-date in order to be able to test for THC concentration levels. With 30 labs in the state, the price tag that Texas would have to cover would be at least $15 million.

At that price, many prosecutors and law enforcement officials say that the investment would not be worth it. After all, most minor marijuana cases are resolved with a ticket and a court appearance. It would not pay for the state to spend that kind of money just to arrest and prosecute a majority of marijuana offenders.

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Creative Solutions to HB 1325

While the new marijuana law poses unique challenges to law enforcement in Texas, prosecutors have come up with inventive ways to abide by the law but still stop the transportation of marijuana in the state. Now, they are telling police and highway patrol officers to require motorists found to be in possession of cannabis to provide the required paperwork for transporting it in and across the state lines.

Under the new federal law, people transporting cannabis products must carry, and provide when requested, proper documentation proving that their cargo is legal cannabis and not marijuana. If they fail to provide paperwork proving that the cannabis has THC levels of less than 0.3 percent, they can be arrested and charged with marijuana possession.

Also, prosecutors are telling law enforcement officers to trust their gut instincts and rely on their training to determine if cannabis found in people’s possession is legal cannabis or illegal marijuana. With the new house bill, cases of marijuana possession could come down to the training and expertise of the arresting law enforcement officer. Even at that, however, prosecutors admit that most of these cases will be resolved either with a plea deal or dismissal.

Even with the creative solutions to get around the HB 1325 marijuana law, advocates for marijuana’s legalization say that the bill will pave the way for cannabis to be legal in any form. They argue that the new law essentially makes it futile for prosecutors and law enforcement officials to arrest and charge people with marijuana possession. They realize that the burden of proof cannot be met as required by the law.

Despite pot possession theoretically being illegal in Texas, it is no longer worth the time or effort that prosecutors and police officers have to put into proving the amount of THC in cannabis. It is easier to let people go or avoid charging them altogether. With that, advocates say that the house bill could soon open the door for Texas to be the next state to legalize the use, sale, and transport of marijuana.

House Bill 1325 continues to present unique challenges to law enforcement and prosecutors in Texas. They now are required to prove the concentration of THC in cannabis they seize during arrests. However, because no lab can provide an accurate test result, they are faced with dropping cases or avoiding arresting people in possession of marijuana entirely.

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