Texas lawmakers were warned state crime lab couldn’t distinguish between pot, hemp
Texas lawmakers didn’t decriminalize marijuana this year, but they nonetheless gave a lot of pot smokers a break.
They didn’t mean to. And they didn’t seem to know they were doing it, though they should have.
Thanks to a classic case of unintended consequences in the sausage-making process, the law that Gov. Greg Abbott signed to legalize hemp cultivation and products has put marijuana prosecutions, including hundreds in Tarrant County, in limbo.
Here’s what happened: The bill, which the House and Senate both approved unanimously, adopts the federal government’s definition of hemp as cannabis with less than 0.3% of THC, the intoxicating element. Plants or derivatives with a higher concentration are marijuana, which it’s still illegal to grow or possess in Texas.
But most crime labs test only for the presence of THC, not its concentration. Few Texas crime labs are equipped for such work. And it could be a year before they can adapt.
All this has spawned confusion for police and prosecutors. Officers will no longer have a field test that can determine if a substance is legal, and drug dogs can’t sniff out the difference between hemp and pot. The Texas District and Criminal Attorneys Association has warned its members that they’ll have to “get creative” to win marijuana cases.
State crime lab official warned of testing limits
Apparently, lawmakers never anticipated the crime lab problem. But they were warned about it.
In a House agriculture committee meeting in April, Chairman Drew Springer, R-Muenster, asked the Department of Public Safety’s crime lab director, Brady Mills, if he saw “any issues or problems we haven’t thought of … to make sure that law enforcement has the proper oversight.”
Mills responded that “we do not currently quantitate THC in samples” and would have to buy new equipment to be able to do so.
Springer asked committee members if they had any questions for Mills. The response? Silence.
No one stopped to think that if the state lab wasn’t ready for such testing, local labs probably wouldn’t be, either -- not in that hearing, not when the full House or Senate took up the bill, and not on the governor’s staff.
Lawmakers sit through many long hearings, and they can’t think of everything. The focus was on launching a potentially lucrative hemp industry for Texas farmers, not maintaining marijuana prosecutions.
But the dropped ball means a headache for local law enforcement officials.
Just a little research would have turned up issues in other states where lawmakers authorized hemp but not marijuana. Tennessee has encountered the lab-test issue. Virginia is grappling with the lack of a definitive field test.
Crime lab costs and other questions
The new law’s author, Democratic Rep. Tracy King of Batesville, says the bill ensures strong procedures to make sure hemp has been legally produced and transported. But that does nothing to address the marijuana/hemp confusion. For instance, who pays to upgrade local crime labs? Who knows?
Plus, Tarrant County District Attorney Sharen Wilson told the Fort Worth Star-Telegram that the law’s hasty drafting and the fact that it took effect immediately means other misdemeanor marijuana cases may be jeopardized. Wilson announced this week that her office had dropped about 235 cases filed since the new law took effect.
Texas has deliberately taken a slow approach to changing marijuana laws. There’s been no real sign that lawmakers are close to broadly decriminalizing pot use, even for medical purposes. Other states have moved much faster, and the result has been a hodgepodge of cannabis laws.
That should mean that Texas can learn from experiences elsewhere. If lawmakers decide to walk toward decriminalization, they have a lot of information to draw upon.
But not if they don’t ask the right questions. And especially if, as in the House committee’s DPS testimony, they don’t ask any at all.