District attorneys and other law enforcement officials across Texas are in an unenviable quandary thanks to an odd combination of action and inaction on marijuana laws during the most recent session of the state legislature.
On one hand, the Texas Senate never got to vote on a bill that would have reduced penalties for small amounts of marijuana.
Lt. Gov. Dan Patrick, backed by a like-minded faction, kept the Senate from ever even considering House Bill 63, which had passed the lower chamber and had Gov. Greg Abbott’s support.
The law would have made possession of an ounce or less of marijuana a Class C misdemeanor, about the level of a traffic ticket punishable by a fine alone, rather than a Class B misdemeanor, for which people are jailed.
On the other hand, lawmakers changed the definition of what constitutes illegal marijuana, making that determination much more complicated, which complicates the prosecution of possession cases.
Lawmakers decided that anything containing 0.3 percent or less of tetrahydrocannabinol, THC, the psychoactive chemical in marijuana, is legal hemp that Texans can trade, use and possess without fear of prosecution, while substances containing more than 0.3 percent of THC are still illegal.
The charge was meant to remove legal uncertainty about hemp-based products such as CBD oil and to help remove some stigma from around the booming hemp industry.
While it might have had a clarifying effect for the hemp industry, the change was anything but for law enforcement.
Formally charging someone with possession of marijuana, which had required only a simple walks-like-a-duck assessment that could be made in the field, now requires a scientific assessment that must be made in a Texas Department of Public Safety laboratory.
So now, every time the police suspect someone of nickel-and-dime possession, they’ll have to submit the evidence to DPS for testing. Meanwhile, the DPS won’t even have the ability to perform the tests for perhaps a year.
Given the number of arrests for simple possession made in Texas each year, somewhere around 70,000, the backlog of samples will be vast before 12 months are up.
And unless this situation turns out to be different from every other in which complexity adds to cost, local taxpayers will be on the hook for more money to pay for more testing and to cover increased costs while a bunch of so-what cases linger in court.
It’s also reasonable to ask what will happen to the processing of other evidence, things such as rape kits that are associated with real crimes, while the lab is busy testing thousands of maybe-marijuana samples.
District attorneys all over Texas can see the problem and several have cut to the chase by telling police, in so many words, they’re not interested in prosecuting simple possession cases.
Others, including Galveston County’s, have told police to make the arrests and gather the evidence but not to expect formal prosecution until the lab work is done.
Both are making political, rather than judicial calculations. In places such as Harris County, where voters are likely to favor legalization, the district attorneys have told police they’ll not take the cases. In more conservative counties, where district attorneys fear giving political opponents a stick with which to beat them, the message is the opposite.
All of this might have been avoided and Texas could have created a rational marijuana policy had the Senate been able to vote on HB 63.
• Michael A. Smith