Texas Gov. Greg Abbott and other high-ranking state officials sent a letter to district and county attorneys in mid-July, including those in Kerr County, chiding unnamed officials who have dismissed marijuana possession cases or chosen to no longer prosecute misdemeanor-level cases, saying their actions don’t align with Texas’ HB 1325.
This state bill was effective June 10, 2019, adopting a new federal standard in a “Farm Bill” filed in 2018 that creates a dividing line, by percentage of THC, between illegal marijuana, and the THC in hemp as an agricultural product.
Witnesses “for” the bill in Austin included some from the hemp industry, and associations. Two from the state’s Departments of Public Safety and Agriculture testified “on” but not “for” the bill.
Logan Harrison in State Rep. Andrew Murr’s office in Austin said, “The 2018 Farm Bill is a piece of legislation passed in U.S. Congress.” Congressman Mike Conaway (R-Midland, Texas) led this, Harrison said.
Implementation (lab tests, location, cost, etc.) is hard to answer, Harrison said. He got an estimate from Texas Department of Public Safety of finalized rules in six to eight months, who said they are waiting on more guidance from Department of Agriculture on hemp as an agricultural product; and TDA is waiting on the USDA for guidelines they hope to receive.
“I can tell you there have been significant concerns about the process by which hemp vs. marijuana would be tested and the associated costs,” Harrison said.
Until now, marijuana has been illegal in Texas based on its “presumptive presence.” Either it was there or it wasn’t.
It is still illegal in Texas, but the new federal standard is by “concentration.” Any confiscated cannabis with 0.3 percent or less of THC is “hemp” and would no longer be an illegal substance.
Any marijuana with more than 0.3 percent THC is still illegal and prosecutable.
But until the Crime Lab for the Department of Public Safety in Austin, or other locations, is equipped to test hemp/marijuana samples for their exact concentration of THC, the problem is how to get drug samples tested for pending court cases, and where, and how much it will cost.
Hemp and marijuana are two popular names for the cannabis plant.
Hemp or Cannabis sativa has been cultivated for centuries, currently densely sowed outside from seed to grow the stout erect annual herb with almost no branches, that can be up to 10 feet tall when meant for its fiber.
The fiber is used for twine, yarn, rope, cable and string; or coarse fabrics such as sacking (burlap), canvas, cloth and more recently recyclable and biodegradable plastics.
One source said hemp seeds are chiefly produced for caged bird seed, but are also edible for humans and contain about 30 percent oil.
Marijuana as a genetically unique plant “Cannabis indica” is psychoactive and produces more THC than hemp does. It is a popular recreational drug around the world, only behind alcohol, caffeine and tobacco. It is still illegal in Texas and many other U.S. states.
Courts in Texas counties can use the DPS Crime Lab for free, Kerr County Sheriff Rusty Hierholzer says, but the DPS isn’t ready. And some private labs have the right equipment and trained staff, but charge large fees per sample.
In the meantime, local law enforcement and prosecutors are taking the effective date of the state legislation, proceeding with qualified marijuana cases with a date of offense earlier than June 10, and generally putting cases filed after that “on hold” until at least January 2020.
Time estimates of how many months it will be until the DPS Crime Lab is ready range out at least six to eight months.
And the longer it takes to solve the lab-testing part, the bigger the backlog of samples to be tested will be.
On a checklist of “who, what, when, where, why and how,” the cast list all know who they are including the criminals. The new rules were announced with the effective date. Law enforcement and prosecutors know what they have sworn to do in their daily jobs and assigned courts.
It’s the “how” and “when” that is unknown.
As a rural county, Kerr law enforcement already deals regularly with sending fingerprints, DNA and other evidence at least as far as Austin’s DPS Crime Lab, and waiting weeks or months to be notified of official results. All autopsies must also be handled this way.
Letter from Governor
The letter from the Governor’s office was signed by Abbott, the Lieutenant Governor, Speaker of the Texas House, and Attorney General.
It said in part, “President Trump signed the 2018 Farm Bill on Dec. 20, 2018, which delegates primary authority to States to develop state plans to regulate the production and sale of hemp and hemp products. It differentiates hemp from marijuana by setting a tetrahydrocannabinol (THC) threshold concentration of 0.3 percent. Above 0.3 percent is prohibited (marijuana), at or below that amount is regulated (hemp).
“The Farm Bill’s framework provides the essential contents of the State’s plan, including procedures for testing, disposing of, and inspecting hemp and enforcing state law regulating production and sale. In addition, the Farm Bill removes lawfully produced hemp-derived products from a Schedule I status under the Controlled Substances Act.”
It goes on to say if a state does not adopt a state plan to regulate hemp, the federal government will adopt a plan to allow hemp production in the state.
The Governor’s letter continues, “Accordingly in HB 1325, the Legislature adopted the 0.3 percent THC federal standard for distinguishing regulated hemp from prohibited marijuana and set hemp policy for Texas.”
The Texas bill now “requires the Texas Department of Agriculture to regulate hemp through a state plan approved by the federal government.”
The letter says development of the state plan is under way and must be submitted to the federal government within 90 days of HB1325’s effective date of June 10. (That makes the state’s deadline about Sept. 8.)
The new state law includes rules requiring hemp producers to now be state-licensed, test their products to the new standard, possess a new TDA-created and approved shipping certificate or cargo manifest.
That is still being “created,” but the Governor’s letter says possession (or lack of, or falsifying) the new certificate is a new enforcement tool local officials can use. And it says, “Lab tests are not required in every case and are more affordable than initial reporting indicated.”
Under a subheading of “Lab tests are only one of multiple established ways to prove marijuana possession cases,” the letter says the federal definition does not limit the prosecutorial options for prosecuting marijuana cases: “Criminal cases may be prosecuted with lab tests or with the tried and true use of circumstantial evidence …”
Hierholzer said his senior staff found one private lab in North Texas currently able to do this testing and they are charging about $660 per drug sample. “If we did 200 drug cases in 2019-20, that’s $132,000.”
“I asked county commissioners for an extra $60,000 in the new budget, but that would cover only a small number of our cases,” he said, adding he got a nine-12 month wait estimate when he asked about the DPS Crime Lab.
Cases involving 4 ounces of marijuana or less are heard in County Court at Law; and those with more than four ounces go to District Court.
“A defense attorney would have to file a motion to get proof the drug is marijuana. The law hasn’t changed about it being illegal in Texas. Even if DPS has equipment in their lab to test for THC, it creates a backlog that would take years to test. I already have cars and evidence in storage because evidence is on hold.”
He also sees testing for marijuana disappearing in plea bargaining in some cases.
He also cited a “release due to delay” law that says a jailed defendant must be released under reduced bond or personal recognizance after a certain time, if delays occur in lab testing or other things outside the offenders’ or defense attorneys’ control.
“The state’s new definition of hemp and marijuana has thrown prosecution in Texas into unknown territory.”
Kerrville Police Chief David Knight said, “Hemp and marijuana are both cannabis, so the THC content is the crux of this. Each month, 5 to 35 percent of our cases are for marijuana. In the past, the amount or weight of the drug sets the level of offense.”
Knight said this can be done in private labs such as at University of North Texas, but not to the specificity of percent of THC so far in the DPS Crime Lab.
“It’s a complication to have the police department ‘prove up a case’ by quantifying the content of THC in each sample, whether it’s raw or edible or oil form.”
He said one daily impact will be officers’ ability to observe “probable cause” and do a search with other facts in place in addition to any burning smell. They are still filing cases and looking for other helpful methods; and will reactivate or refile cases after January as needed.
The current field testing kits don’t measure percentage of THC, and Knight said to have to break glass ampoules inside them is also a safety issue for officers.
KPD has a budget line item for evidence testing; and they are applying for a grant for two pieces of electronic equipment that can read the content of drug packages without opening the packets. Cost is about $20,000 each from Thermo-Scientific.
Lucy Wilke, district attorney for the 216th District Court said they are waiting on the DPS Crime Lab and testing information. In her office the decision so far is to put already-indicted hemp/marijuana cases on hold, so far to January 2020.
“The law is unclear on pending cases so we’re erring on the side of caution and checking on the new law’s effective date compared to cases. They’re not dismissed, but delayed. New ones we accept also will be on hold,” Wilke said. “This affects about 30 percent of our case load.”
Investigators for Wilke’s cases said their main cases involve methamphetamines, heroin, THC and LSD.
They demonstrated one of their meth “field test kits” saying they always wear gloves on the job, for this.
Glass ampoules of “reagents” are broken in turn by hand or the butt of a gun; and the color resulting from mixing drug particles with the liquid either matches (or doesn’t) the colored square on the outside of the small plastic pouch, showing “presumptive presence.”
THC is tested in wax or liquid form, they said. And the present kits could give a positive reaction to CBD oil that is not illegal.
Heather Stebbins, County Attorney for Kerr County, said her office also is in a holding pattern until there’s a reasonably priced test to define THC, adding, “$650 is expensive for testing each case.”
She’s been told six to nine months to begin testing; and it takes two years to file cases from her office already, in addition to her backlog.
Notification from Department of Public Safety in July said, “Currently, Texas DPS laboratories can identify whether a substance is Cannabis Sativa L. and contains THS, but we are currently developing the procedures necessary to test the THC concentration level. We will develop the validation method to quantify THC as expeditiously as possible, but we expect this process to take up to six months.”
Until then, the agency will accept evidence and provide analysis after checking with assigned prosecutors about their wishes to proceed with cases.
A book titled “2019-21 Legislative Update” was published again by the Texas District & County Attorneys Association” and written by two men who sat through the last legislative sessions in person listening to debates leading to votes. They wrote their own summary of HB1325.
Their introduction says, “HB 1325 was passed to regulate the growth, production, transportation, sale and consumption of legal hemp products in Texas. In passing that bill, the Texas Legislature joined roughly 40 other states and the federal government in legalizing some form of hemp, industrial hemp or hemp-related products. However the implementation of this new law may lead to some headaches due to its immediate effect – something that is almost never a good idea when changing criminal law – and the need for additional time for various state agencies to ramp up the administrative regulatory processes required by the bill and properly equip laboratories with the instrumentation and expertise needed to distinguish legal hemp from illegal marijuana.”
Both terms refer to the same plant, Cannabis sativa L., and any part of that plant whether growing or not; with the difference being the content of THC (scientifically the delta-9 tetrahydrocannabinol) of not more than 0.3 percent on a dry-weight basis.
HB1325 was a 40-page bill, and Shannon Edmonds and Rob Keppel provided the association’s overview.
They wrote that consumable hemp products such as oils, lotion, tinctures and other health products are now regulated under the Health & Safety Code and Department of State Health Services, under various consumer protection laws – some of them still to be written.
Also, certain other violations of the new law involving products containing cannabinoid oil, including cannabidoil (CBD) also are actionable under “deceptive trade practices.”
For law enforcement, new Agriculture Code statutes may cause as much confusion as clarity, the authors said. And the immediate effect creates temporary problems for enforcement and prosecution. DSHS rules governing possession transport or sale of CBD oil are still to be written and/or take effect; and proving a product unsafe or above the .03-percent THC level requires seizure and lab testing.
A second challenge, especially for criminal courts, they said, is that evidence proving marijuana by THC concentration can come only from state agency or private crime laboratories.
“The legislature has seriously complicated the prosecution of marijuana cases for the next several months,” they wrote.