Gov. Greg Abbott and other state leaders overstepped their expected roles last week when they 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.”
Yes, failing to enforce those laws can be blamed on the legislation.
For one, legislation passed in this recent session of the Texas legislature 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.
Texas’ law was enacted to match a federal bill passed last year, which allowed for states to develop their own plans to regulate the production and sale of hemp.
The problem for prosecutors is that state labs are not set up to test marijuana for levels of THC. That’s a bit of a loophole defense lawyers across the state are sure to use.
Galveston County District Attorney Jack Roady earlier this month informed local police departments that his office would not be able to immediately prosecute marijuana cases submitted to his office because the change in the law.
Roady, however, did not go as far as other prosecutors, including those in Harris and Dallas counties.
Harris County District Attorney Kim Ogg, who said earlier this month her office will not prosecute low-level marijuana cases without a lab report, responded to the letter and said that it is up to the courts to interpret this law, according to a Texas Tribune story.
“Prosecutors have an ethical duty to be able to prove beyond a reasonable doubt, and laboratory confirmation in drug cases has long been required,” she said in a statement. “When a person’s liberty is at stake, juries demand nothing less.”
The strangest part of the letter from the state to prosecutors is there are 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.
We have a better suggestion.
The next time the legislature passes a law and the governor signs it, make sure all the tools to enforce — or finance — are in place.
• Dave Mathews