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.