Some Texas cities are dropping cannabis possession cases following the legalization of hemp last month because law enforcement agencies are unable to distinguish between hemp and psychoactive cannabis, casting a reasonable doubt over criminal proceedings, according to a KVIA report.
In response, Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen, and Texas Attorney General Ken Paxton have sent a letter to district and county attorneys urging them to continue prosecuting the cases. Police departments do have the option to test cannabis to determine whether it contains more than 0.3 percent THC; however, those tests are expensive and, for some towns, not worth paying for to prosecute low-level cannabis crimes.
In the state’s 10 most populous counties, only El Paso District Attorney Jamie Esparza has said definitively that he would continue prosecuting cannabis cases with the new hemp law on the books. He told KVIA that, with cannabis arrests, there is usually enough circumstantial evidence to levy charges, such as paraphernalia or other evidence of smoking.
Harris County Assistant District Attorney Paul Fortenberry of the Major Narcotics Division said that most crime labs in the state can’t even measure THC and the new law “requires scientific testing” to determine whether something is considered hemp or marijuana. El Paso Assistant District Attorney Tom Darnold said in a memo obtained by the Texas Tribune that the burden of proof would be on the defendant, not the prosecutor.
“[The new law] allows the defense to raise a defensive issue of, ‘Hey, what you have is hemp, not marijuana.’ If there’s no lab test either way … then really it’s just a circumstantial evidence case, and we can still reasonably satisfy our proof beyond a reasonable doubt.” – Darnold, to the Tribune, via KVIA
At least two counties have approved funds to send substances to private testing laboratories with the proper equipment to test for THC content. The letter sent by Abbot and Legislative leaders indicated that the hemp law gives law enforcement and prosecutors “more tools” because under the law it’s a misdemeanor “for failure to have a proper hemp certificate.”
The hemp law passed the Legislature with supermajority support, which allowed the measure to take effect immediately.