Gov. Greg Abbott and other top state officials on Thursday directed prosecutors across the state to continue prosecuting marijuana-related crimes, even as they await creation of a process to determine whether some marijuana products are illegal under newly passed state guidelines.
The letter, sent to all district and county attorneys in the state, said that “failing to enforce marijuana laws cannot be blamed on legislation.”
Earlier this month, Galveston County District Attorney Jack Roady informed local police departments that his office would not be able to immediately prosecute marijuana cases submitted to his office because of a change in the state’s definition of marijuana.
In an effort to legalize some hemp-based products such as CBD oils, the Texas Legislature approved House Bill 1325 during the most recent legislative session.
The new law created separate definitions for illegal marijuana products and legal hemp-based products. The difference was defined by the amount of tetrahydrocannabinol, or THC, in an item. Any product that contains more than 0.3 percent of THC is illegal.
The new law created a problem for prosecutors around the state, however. State labs were not equipped to test marijuana products for their level of THC, and a positive identification of a drug is a requirement for prosecution, officials said.
In his letter, Roady told local police departments to continue filing reports and collecting evidence about marijuana cases and promised that the cases would be prosecuted as soon as that was possible.
Roady’s mandate did not go as far as some other Texas counties, including Harris County, where prosecutors announced they would not accept any misdemeanor marijuana cases until a testing method was created. Some counties also dismissed any pending marijuana cases.
The letter from Abbott, Lt. Gov. Dan Patrick, Speaker of the House Dennis Bonnen and Attorney General Ken Paxton, said legislators did not repeal state marijuana laws and that they should continue “faithfully executing the duties” of their offices.
It also said that prosecutors have other tools they can use to prosecute people suspected of having illegal marijuana, such as a new law that requires people to have a certificate when they transport hemp.
The Texas Department of Agriculture has not issued any certificates yet, the letter said.
“If they have a certificate, which the department has yet to promulgate, then it’s a fake — which is a felony,” the letter stated. “Criminals should be on notice that they may continue to be prosecuted for possession of marijuana and may now be prosecuted for illegal possession of hemp with a proper certificate.”
The Galveston County District Attorney’s Office had received a copy of the state’s letter Thursday, said First Assistant Criminal District Attorney Kevin Petroff.
“I think it’s keeping in line with what we’re doing,” Petroff said. There are some practical circumstances that the letter doesn’t consider.
While the letter suggests the counties can prosecute marijuana crimes based on circumstantial evidence, prosecutors who try the cases may eventually have to prove to juries that a substance in question is marijuana or, if they pursue the transportation charge, that it’s hemp.
The district attorney’s office doesn’t plan to change its policies on marijuana prosecutions, he said.