Lawmakers made a mess with the new hemp law. Here’s the short-term fix for pot cases

When policymakers err and can’t admit it or readily fix the problem, the mess, to use a family-friendly word, rolls downhill.

So it is with the debacle surrounding the difference between hemp — now legal in Texas — and marijuana, which the governor and other state leaders really, really want you to know is not.

While creating a regulatory framework to allow hemp and derivative products, lawmakers screwed up by not taking into account the need for crime labs to distinguish between hemp and pot. Labs will need expensive, time-consuming upgrades to determine the level of THC (the compound that causes a high) in a plant or other substance.

So, prosecutors around the state are increasingly concluding that until those upgrades are complete, small-time marijuana cases may not be worth it.

Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and Attorney General Ken Paxton suggested ways for prosecutors to proceed. Their suggestions come with a new set of problems; more on that in a minute.

Tarrant DA says lab tests needed

In Tarrant County, District Attorney Sharen Wilson has already dismissed hundreds of cases. And she has advised police chiefs that her office cannot prosecute any marijuana case unless a lab test is done to prove the substance is pot, not hemp.

Local police departments have to figure out how to step around the Legislature’s puddle for a while. We think Tarrant County agencies should decide not to file cases for possession of less than 4 ounces of cannabis.

Larger amounts are more serious, and the cost of testing to bust a dealer is justified. But a Class B misdemeanor, which possession of less than 4 ounces of marijuana amounts to, isn’t worth the effort.

It would be a de facto experiment in decriminalization, one that could end as soon as the proper lab equipment is procured (or when lawmakers clarify the matter). And an experiment could be useful in framing the ongoing debate about marijuana in Texas.

The state is moving slower toward cannabis reform than other states, but it is moving. The hemp bill was a big step. The House also voted this year to reduce penalties for possession of small amounts of marijuana. The Texas Republican Party’s platform calls for decriminalization, and Democrats back full legalization. Polls show Texans are warming to the idea.

“If the people of Tarrant County want the law changed, they have a year and a half to wear out their legislators on that,” Wilson said.


In our view, the alternatives to police backing down on possession cases is unworkable. Why would we waste police resources arresting and jailing someone on a case that almost certainly won’t be prosecuted? If departments want to make a hard-line point by spending extravagant amounts to test small amounts of pot in time to make a case, voters need to ask tough questions about how they allocate their precious resources.

The state leaders argue that police can use circumstantial evidence to determine that someone has marijuana. For instance, hemp produces no high and thus is unlikely to be in a smokable form, so having a joint is evidence of drug possession.

But any defense lawyer who’s not comatose would demand a test to prove that the substance in question was, in fact, a drug. So we’re right back where we started.

Abbott and company also want local officials to levy a new charge, transporting hemp without a certificate. The new offense is a Class C misdemeanor, akin to a traffic ticket. Are we really talking now about paperwork charges?

As we first reported, lawmakers should have known they were creating this problem. The head of the Department of Public Safety’s crime lab told them the lab couldn’t immediately determine the concentration of THC.

Lawmakers ignored the warning. The resulting mess is one that local police shouldn’t try to clean up.

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