Texas Gov. Greg Abbott signed a law this month that will provide farmers with an opportunity to produce a legal money-making hemp crop.
But Tarrant County prosecutors are suffering from a side effect brought on by the new law — comatose marijuana cases.
As a result of the new law, the Tarrant County District Attorney’s Office has dismissed about 235 misdemeanor marijuana cases filed since June 10 that now require lab tests.
Based on new definitions in the law, most state crime labs cannot perform tests that can differentiate legal hemp and hemp products from illegal products, such as marijuana.
Tarrant County District Attorney Sharen Wilson said the cases can still be refiled and prosecuted if law enforcement agencies obtain a report from an accredited lab showing that the concentration of THC (tetrahydrocannabinol) meets the redefined definition of marijuana.
“The lab report in our estimation is now a requirement of the crime because it’s the only way you can tell legal from illegal,” Wilson said.
She said the cost for such tests would fall to the law enforcement agencies that made the arrest.
“It could be quite expensive because it’s rare,” she said.
Wilson said the majority of the dismissed cases were for possession of 2 ounces of marijuana or less. Wilson said her office is working to find labs able to run the needed tests.
“We think we found two. I’ll be communicating with our police agencies about what those labs are so that they can get that needed lab result and refile the case,” Wilson said.
Misdemeanor crimes have a two-year statute of limitations. Wilson said felony marijuana cases involving more than 4 ounces of marijuana, however, will not be dismissed.
“We will simply treat it as every other drug case and not indict it until we have a lab,” Wilson said. “That’s been the Tarrant County way since the ‘70s … In Tarrant County, we have never indicted drug cases without a lab. We just now are going to have to deal with marijuana as if it were on the same level of cocaine.”
Wilson said her office is still researching how it will handle misdemeanor marijuana cases filed before June 10.
“There’s some issues with how that law was passed so fast and immediately signed by the governor,” she said. “We’ve got more research to do, so no, there are no wholesale dismissals, at this time, of cases that we filed before June 10.”
What the new hemp law says
The law defines legal hemp and hemp products as having less than 0.3% THC and those products with more than 0.3% THC as illegal.
Before the new law, anything that contained THC was illegal. Now what is legal depends on the percentage of THC a substance contains.
The new definitions created difficulties for crime fighters. Many of the state’s crime labs that would typically identify illegal substances for the courts and police do not have the equipment, the resources or the expertise to identify what is illegal in cases where hemp or marijuana is presented as evidence.
In the past, the THC percentages were important in certain federal cases, and the Houston crime lab referred those cases to a Drug Enforcement Administration lab, said Peter Stout, Houston Forensic Science Center chief operating officer.
“None of the labs in the state are in a position to do this type of testing, certainly not at this scale,” Stout said. “None of us can do it to meet the marijuana caseloads in the state. We don’t have adequate resources to process the caseloads that we already have.”
The Houston crime lab could be upgraded to do this type of testing after adding four new employees and additional equipment, Stout said. The estimated cost to upgrade the Houston lab is about $2 million, he said.
“There’s no money in the law to pay for this,” Stout said. “I spent a good bit of time in Austin to make sure that people were aware of the implications. I’m not sure we were listened to.”
Hemp, marijuana testing
One lab official who is operating facilities with the capabilities specified in the new law said this type of testing will not be easy, nor inexpensive.
NMS Labs, which has been testing for THC percentages for four years, can test for THC percentages in botanicals, or leafy green substances, but not for lotions, oils, edibles or candy, said Barry Logan, NMS chief scientist. It took NMS Labs, a national company with facilities in Grand Prairie and El Paso, about three months to develop the capability, Logan said.
A test to measure THC concentration in edibles is being developed and should be available by the end of the summer, Logan said.
If a lab started from scratch and had people working only on this one task, it would likely take between three and four months to create the framework to do the type of tests that are needed, Logan said.
The tests required by the new law take a lot more time to do and are a lot more complex than the previous testing required, Logan said.
The test to detect the presence of THC was a three-step process that could be completed in 15 to 30 minutes.
“The majority of that time is taken up by doing the paperwork,” Logan said.
The new testing requires the evidence sample to be dried, and at NMS samples are dried for 12 to 18 hours before testing can start, Logan said. The test has about 10 steps and takes about half a day to set up, Logan said.
According to an NMS official, the test that reports THC percentage by weight in botanicals costs about six times more than the one that detects the presence of THC. Typically, the THC percentage tests are done in batches in order to increase efficiencies and control costs, Logan said.
NMS has not seen orders increased substantially, but the number of people calling about the test has increased.
“We’re getting the calls,” Logan said. “A lot of agencies are still figuring out what they are going to do. It’s really taken off the last couple of weeks. The number is up about four or five fold.“
Warnings with the new hemp law
The bill’s author never saw the problem with the proposed hemp legislation, according to a statement from his office.
“HB 1325 (the hemp bill) follows the federal definition of hemp,” said a statement from the office of State Rep. Tracy King, D-Batesville, who authored the bill. “We think our bill has ample safeguards in place such as shipping manifests, QR codes on products, rigorous pre- and post-harvest testing requirements that all ensure hemp is grown, transported, and sold in a transparent, safe, and legal manner. Furthermore, THC levels can be tested in a lab and because of the many safeguards in the bill, we do not expect a significant rise in caseloads for labs to process.”
The bill that became law passed with solid majorities in Texas and mirrored changes in the U.S. Farm Bill of 2018, which became law in December. The state law became effective on June 10.
The people who run crime labs in Texas and who enforce state law say they are only now beginning to have discussions about how to comply with the new changes.
“This is a topic of current discussion to identify correct process and procedures moving forward,” the Fort Worth Police Department said in a statement.
Before the new law officers used field test equipment that could detect the presence of THC and some officers had dogs trained to detect illegal substances, experts said. But that option likely won’t be available anymore, law enforcement officials said.
And the state should not expect much help from federal authorities who are working to comply with changes in the 2018 U.S. Farm Bill. Resources are being diverted within the U.S. Drug Enforcement Administration to develop methods that can differentiate between hemp and marijuana, according to a federal official.
DEA officials are continuing to assess the effect of the federal law’s changes because the law is so new, the official said.
“DEA has limited capacity to perform testing for state and local laboratories,” the office said in a statement. “DEA can more readily offer assistance to state and local laboratories by sharing our methods for the analysis of suspected marijuana.”
David Sloane, a lawyer who has been tracking the changes in the law and is a spokesman for DFW NORML, an advocacy group fighting against marijuana prohibition, predicted these types of dismissals might be coming.
Previously, marijuana testing was like pregnancy testing: “Either you are or you aren’t.”
Now, marijuana cases presented by prosecutors, especially for arrests made after June 10, will be riddled with near insurmountable doubt, Sloane said.
“I don’t think it will slow the roll of the police officer on the street,” Sloane said. “They don’t have to be right. They just have to be reasonable. I do think it will slow the roll of prosecutors. It’s a mess is what it is.”