The Galveston County District Attorney’s Office will delay prosecuting marijuana cases, possibly for months, after a new state law changed the definition of what makes some cannabis products illegal.

In a letter sent to local law enforcement agencies Monday, Galveston County District Attorney Jack Roady said the new law has created difficulties in determining the difference between legal hemp and illegal marijuana.

During the recently concluded Texas legislative session, lawmakers changed laws to legalize some products that might contain THC, like CBD oils or hemp clothing as the cannabis industry booms. But the law appears to have caused an unintended problem in the way marijuana crimes can be prosecuted.

The state’s definition of marijuana is now based on the amount of THC present in a substance and the only way to determine whether a substance has enough THC to be illegal is to send it to a Texas Department of Public Safety Crime Lab, Roady said.

THC, or tetrahydrocannabinol, is the psychoactive chemical in marijuana.

“Until DPS is able to implement this testing, there is no easy way for your officers to determine whether the substance they seize is legal or illegal,” Roady said in the letter to agencies.

Roady told the police departments that they should still seize substances they believe to be illegal and complete reports about the seizures, he said. However, charges related to marijuana cases will have to wait until substances can be properly tested, he said.

“We will not be able to dispose of the case or proceed to trial until we received the results from the lab,” Roady said.

The letter assures the local police departments — in bold print — that the district attorney’s office will continue to prosecute marijuana cases, and that the charges would be filed once the lab work is completed.

The district attorney’s office released its letter to law enforcement agencies shortly after Harris County District Attorney Kim Ogg announced her office would no longer accept misdemeanor marijuana charges unless presented with a lab test proving a substance was illegal marijuana.

The district attorney’s office already relies on the Texas Department of Public Safety to do most of its drug recognition testing, said Kevin Petroff, Galveston County’s first assistant criminal attorney.

The Texas Department of Public Safety hasn’t given the district attorney’s office an estimate on when it might be able to begin testing for low levels of THC, Petroff said. Getting the equipment and setting up protocols for testing could take as long as year, Petroff said.

Gov. Greg Abbott signed House Bill 1325 into law on June 10, and it took immediate effect.

While the bill has at least the temporary effect of decriminalizing marijuana crimes, that was not the intended effect of the bill. Rather, legislators were focused on legalizing hemp as a crop, so that it could be used in some products, including clothing, twine or CBD oil.

Hemp contains low levels of THC. Under the new state law, samples that contain less than 0.3 percent of THC are defined by state law as hemp. Samples that contain more than that is illegal marijuana.

Local police departments have received the district attorney’s notice, though it wasn’t immediately clear whether the change in prosecution timelines would affect how departments enforce marijuana crimes.

In Texas City, a department spokesman said officers have not been told to change their behavior because of the advisory.

“We’re going to keep doing business as usual,” Cpl. Allen Bjerke said.

In practice, that means people found with suspected marijuana will have the substance confiscated and their information taken down by officers, Bjerke said.

After the lab tests are completed, prosecutors will decide will whether to charge people and a warrant might be issued for their arrest, Bjerke said.

It was unclear who would be responsible for holding suspected marijuana while it was being tested, or what the procedure would be for returning substances that test below the 0.3 percent threshold, Bjerke said.

Texas is one of the last states to legalize hemp production and Congress last year passed a budget bill that legalized hemp that contains no more than 0.3 percent THC.

Texas has not legalized marijuana for medical or recreational use, and possession of marijuana is still a federal crime.

John Wayne Ferguson: 409-683-5226; or on Twitter @johnwferguson.


(19) comments

Bailey Jones

Just legalize it already. Let the police concentrate on dangerous drugs - that's a full time job.

Carlos Ponce

Not a good idea, Bailey. The marijuana of today is far more dangerous than what you smoked in the last century, or even the early part of this century.

Paul Harrington


Bailey Jones


Christopher Fluke

Always something. If it was a regulated item, such as the horrible and really dangerous drug alcohol that is legal, then safety measures could be put into place to make sure what is grown and sold is not deadly. How many deaths due to alcohol poisoning versus deaths by marijuana overdoses are there? Most dangerous forms of marijuana have turned out to be synthetic or laced with something. Yes, higher levels of THC are in plants, but there also is a plateu of high that has been observed in marijuana, unlike alcohol.

Diane Turski

Legalize marijuana and put the money and time saved into prosecuting real crimes like human trafficking, robbery, murder, burglary, rape, assault, etc.

Carlos Ponce

Legalizing would make marijuana more accessible to pre-adults. That's bad considering the permanent effects on a young brain.

Christopher Fluke

Youth already have access to it, along with tobacco and alcohol, which both of those are far worse for youth. Education is key in all aspects. When you make something a non-issue, youth tend to not care about it. Rebellion in youth is natural and when you make label something bad, those youth that are rebellious will tend to go towards it.

Kelly Naschke

I agree with Bailey and Diane. LEGALIZE it.

Carlos Ponce

Pandora's box.

Christopher Fluke

The only reason it is illegal is Nixon went against his own report that said it shouldn't be criminalized. It hasn't been about the plant or drug, it's been about control.

Carlos Ponce

It's about the effects. I guess you never had a student in class who was on marijuana. Loss of education time dealing with the problem. And today's marijuana is far more potent than in Nixon's day. Loss of productivity for adults. Also accidents.

Christopher Fluke

And the effects of alcohol are different, how? Or opioids? Or so many other legal regulated drugs? Education of the youth are important for any of them. Also, a recent study showed that Colorada teen usage went down because it's harder for them to get it in licensed dispensaries versus the street pushers and dealers that targeted youth.

Carlos Ponce

"And the effects of alcohol are different, how?" THC sticks with you LONGER than alcohol.

Carlos Ponce

Short term Effects of marijuana altered senses (for example, seeing brighter colors) altered sense of time changes in mood impaired body movement difficulty with thinking and problem-solving impaired memory hallucinations (when taken in high doses) delusions (when taken in high doses) psychosis (when taken in high doses) Long term effects temporary hallucinations temporary paranoia worsening symptoms in patients with schizophrenia—a severe mental disorder with symptoms such as hallucinations, paranoia, and disorganized thinking Note: This was produced in Apr 2010 and updated in June 2018. NO! to legalization.

Bailey Jones

Note to self: Stay off of Carlos' lawn.

Jim Forsythe

In 2018 Federal law was changed to "hemp cannot contain more than 0.3 percent THC, per section 10113 of the Farm Bill." The Farm Bill removes hemp from the federal list of controlled substances. This was passed so farmers are able to grow hemp, which has a large upside to the farmer as a cash crop. For Texas farmers to get a share of this money stream, our laws had to be in step with Federal law. What was the hurry in passing new ,3 threshold. Kentucky is Mitch McConnell home state and he helped the farmers in his state. Kentucky is considered the best place in the world to grow hemp, With him helping Kentucky farmers, he helped all farmers.------- As soon as the backlog for the equipment is taken care of , testing will not take very long.

Christopher Fluke

Then don't take it, but as an adult, it is not much different than alcohol, which has some of the same issues, with some worse (such as death) and some not so worse (such as some people having hallucinations and delusions). You point out schizophrenia, which is a disease I have personally familiar with and have had to deal with people in my life who have it since I was born. There is no causal relationship between using marijuana with mental disorders in any study, specifically marijuana does not cause schizophrenia. What studies are showing, is that it is used to self medicate for people already pre-disposed, or have, mental illness, and with our current system of not treating mental illness, who could blame anyone for that?

Jose' Boix

Aside from all the "legality issues," I had a chuckle with our Legislators dealing with a regulation which apparently unbeknown to them required some technical knowledge of chemistry and testing. It was somewhat funny to read that there were no available tests and that equipment (GC/MS) would be expensive. That is besides all the other wrinkles! Just interesting to see our Legislators at work writing and approving Bills...Just my thoughts!

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