DAs say pursuing minor marijuana cases is too expensive, less costly alternative close

Texas lawmakers were warned state crime lab couldn’t distinguish between pot, hemp

When House members took testimony about a bill to legalize hemp production in Texas, a Department of Public Safety official warned that the state’s crime lab couldn’t test for concentration of THC, the intoxicating chemical in marijuana.
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When House members took testimony about a bill to legalize hemp production in Texas, a Department of Public Safety official warned that the state’s crime lab couldn’t test for concentration of THC, the intoxicating chemical in marijuana.

It’s not worth it to prosecute misdemeanor marijuana offenses given the lab testing procedures now required by new state and federal laws, according to attorneys who are not prosecuting minor marijuana offenses.

Due to the passage of those new laws, most labs in Texas cannot create test results that can tell the difference between what is illegal marijuana and legal hemp.

Last month, Gov. Greg Abbott, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen, and Attorney General Ken Paxton sent a letter to all Texas district and county attorneys’ offices and encouraged them to continue to prosecute marijuana offenses, no matter how small. The new state law was passed with no new funding for labs.

The letter from the state’s top Republican lawmakers was likely an attempt to deflect any criticism coming from their constituencies, according to David Sloane, a Fort Worth attorney specializing in defending marijuana cases.

“It’s real easy to sit in Austin and ask prosecutors across the state to prosecute cases riddled with reasonable doubt,” Sloane said. “The governor is asking prosecutors in this state to do something unethical. They are not here to advocate, but to seek justice. If a prosecutor does not have faith in a case, they can be disciplined if they pursue something they are not comfortable with.”

The new state and federal laws defined legal hemp or hemp-derived products as substances that contained less than 0.3 percent tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana that produces a high.

Prior to the law change, all Texas labs had to report was whether a suspected cannabis sample contained any THC to say it was illegal. If the cannabis sample had no THC, it was presumed to be legal.

‘I don’t have the budget for that’

The new laws calling for labs to measure the percentage of THC in a sample have caused state labs to change their reports, saying they cannot tell what might be legal or illegal. Lacking a definitive test, prosecutors statewide have decided not to take cases where the offender is suspected of having possession of a small amount of marijuana.

“Weeks ago, after all this came to light, I made the policy decision that we would not move forward on any [marijuana] cases after June 10th that didn’t have a lab report attached to the particular case,” said David Escamilla, Travis County district attorney. “We have not changed our policy with regard to that. For those that do not have a lab report, we can’t move forward.”

The Austin lab does not have the capability to test for an ounce of marijuana, Escamilla said. The labs are all trying to catch up. There are maybe two labs in Texas that are able to test for percentage concentrations of THC, Escamilla said.

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Lab station at NMS Labs Pennsylvania headquarters, where technicians are equipped and trained to do the type of THC testing required by new Texas law. Courtesy NMS Labs

“Those labs are testing but it costs quite a sizable amount of money and that’s not justified for misdemeanor cases,” Escamilla said. “I don’t have the budget for that and I don’t think my law enforcement agencies have the budget for that either, at least they haven’t offered to do those tests.”

Fewer prosecutions equal less rehabilitation in Tarrant County

In Tarrant County, where more than 200 marijuana possession cases filed after June 10 have been dismissed by the district attorney’s office, many people suspected of possessing under two ounces of marijuana were given the opportunity to kick their habit before the new law passed.

Tarrant County’s Deferred Prosecution Program dedicated to young, first-time offenders, gave suspects an opportunity to produce a specific amount of clean dug tests during a 90-day period and have their case dismissed, a statement from the district attorney’s office said.

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Tarrant County District Attorney Sharen Wilson has dismissed about 235 misdemeanor marijuana cases filed since June 10 because of changes in state and federal law now requiring different lab tests. Star-Telegram Archives

The program has been expanded to include all age groups and possession cases of under two ounces of marijuana, according to the district attorney’s office.

“We had very positive feedback from them after completing the program and having stayed sober throughout the months required,” said Sharen Wilson, Tarrant County district attorney. “Individuals were thinking more clearly than they had in a long time, and were realizing the profound effects marijuana can have on quality of life.”

However, with the requirement of lab tests to prove even low-level marijuana charges resulting in fewer actual cases being filed, we miss the opportunity to encourage sobriety, Wilson said.

The office continues to make that opportunity available for some suspects, but because of the new laws, the numbers of people who can be offered that opportunity is much smaller, Wilson said.

Robert D. Johnson, chief toxicologist with the Tarrant County Medical Examiner’s Office, says about 20-to-25 percent of the lab’s test requests are for marijuana.

“We are still getting the requests, but we do not call green leafy plant material marijuana anymore,” Johnson said.

In Fort Worth, police officers are being told to do their job based on their training and experience.

“There is no clear-cut answer as each case is different and must be evaluated based on its own present circumstances,” said Sgt. Chris Daniels.

More changes are coming

The Texas Department of Public Safety has also changed their arrest procedures to take into account prosecutorial decisions about the pursuit of cases where small amounts of marijuana are involved.

Texas DPS officials have released a memo instructing troopers to cite and release, or stop and ticket, people suspected of possessing misdemeanor amounts of marijuana if the suspect lives in the county where the stop occurs.

“Custody arrests should only be used when necessary,” the memo says.

Where prosecutors are accepting low-level marijuana cases without a lab report that measures THC concentrations, troopers are arresting and booking individuals, according to DPS officials. Cite and release will not apply in every case, DPS officials say.

But all this could change by late this year or early next year.

State lab officials reached out to the U.S. Drug Enforcement Agency and have developed a plan that could create a workable testing protocol within three-to-six months.

The plan, if it works, will not require state labs to get re-accredited by the national organizations and will not saddle them with expensive new equipment purchases and training costs because the testing can be done on equipment most Texas labs have on site.

The state’s labs are working together with the federal government on this issue to get a usable test that will produce verifiable results for plant material, said Lynn Garcia, general counsel for the Texas Forensic Science Commission.

DEA chemists have been able to verify THC concentrations of 1 percent and their testing can produce a negative, positive or an inconclusive reading for plant material, Garcia said.

“There are a very small number of cases that will need more extensive testing,” Garcia said. “Prosecutors and labs have been happy with this protocol.”

States across the country are having issues complying with the 2019 Farm Bill and actions that removed hemp from the federal list of controlled substances, Garcia said.

“Thankfully the DEA is showing leadership and we are able to capitalize off the work they have done,” Garcia said. “There’s a sense of urgency here and everyone is moving as quickly as possible to get it done.”

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Mitch Mitchell is an award-winning reporter covering courts and crime for the Star-Telegram. Additionally, Mitch’s past coverage on municipal government, healthcare and social services beats allow him to bring experience and context to the stories he writes.