Texas lawmakers were warned state crime lab couldn’t distinguish between pot, hemp
State leaders want Texans to know one thing about marijuana: It’s still illegal.
After hearing that district attorneys are dismissing or not pursuing some marijuana possession cases, they sent a letter telling those prosecutors that they are wrongly interpreting the law.
“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” according to the letter by Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and Attorney General Ken Paxton addressed to all district and county attorneys in Texas.
House Bill 1325 makes it legal for Texas farmers to grow hemp and for the Texas Department of Agriculture to oversee the process. Licenses will be needed and products will need to be sampled, inspected and tested. And the Texas Department of Health and Human Services will oversee the processing of products for consumption.
CBD oil comes from the hemp plant, which is related to the marijuana plant. But CBD extract doesn’t contain THC, or contains very low concentrations of THC, which helps patients receive the benefit without the high.
The federal government has removed hemp from its list of controlled substances, as Texas did earlier this year.
As a result of the new law, some district attorneys across Texas believe the Legislature redefined marijuana and have dismissed some marijuana cases because, 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.
In Tarrant County, the DA’s office has dismissed about 235 misdemeanor marijuana cases filed since June 10 that now require lab tests.
The letter notes that lab tests are “only one of multiple established ways to prove marijuana cases.”
Tarrant County District Attorney Sharen Wilson has 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 meets the redefined definition of marijuana.
The goal of HB 1325 was not to legalize marijuana, according to the letter from state officials.
“Since H.B. 1325 did not repeal the marijuana laws of Texas, as Judicial Branch Members, you should continue to enforce those laws by ‘faithfully executing the duties of the office of the [District or County Attorney], of the State of Texas, and ... to the best of [your] ability preserve, protect, and defend the Constitution and laws of the United States and of this State,” the letter stated.
After temporarily suspending testing of samples suspected of containing THC, the Houston Forensic Center crime lab is now producing reports that include a disclaimer saying that it cannot verify the concentrations of THC within a sample.
After conversations with officials at several levels of law enforcement, forensic scientists believe that they will soon be able to develop tests that can tell whether a sample is hemp, whether a sample contains greater than 1% THC content or whether the testing on the sample is inconclusive, said Peter Stout, Houston Forensic Science Center chief operating officer.
State laboratory officials would be able to do this testing with equipment they already have in perhaps as few as three to six months, instead of the six months to a year that was previously thought, Stout said.
What is unknown is whether the state labs have enough of the needed equipment on hand to meet the scale of testing needed by Texas law enforcement, Stout said. Stout said the labs are close to having an answer for this type of testing for leafy THC products but are still trying to come up with a way to test other types of products.
“The industry is not just marijuana,” Stout said. “The industry is now THC and CBD and processed products like brownies, candies, lotions, waxes and oils and all these different ways that people consume now. It’s like the difference between buying kale and that squeezy cheese you find that comes out of a tube. We are figuring out what to do with the kale but we still don’t know what to do with the squeezy cheese.”
What is also occupying a lot of attention is finding labs to test heavyweight seizures — large seizures of marijuana that weigh pounds, sometimes hundreds of pounds, instead of ounces — and determining whether law enforcement needs to test multiple samples when such seizures are made, Stout said.
The Houston lab contracts the large seizures out to two private companies with facilities in Texas and the testing can get expensive, Stout said. District and county attorneys must determine what they are willing to spend for that type of testing.
And the reports produced by the state crime labs have to be right 100% of the time, Stout said.
“If we don’t have a method that is robust, we may have to figure out how to retest hundreds, if not thousands of cases down the road,” Stout said. “I’m not testing the hemp from a farmer’s field. I’m testing what was found by police and it’s very different. This is testing for a criminal prosecution from an unknown source and that’s more difficult.”