Attorneys from both the district and county levels here in Wharton County were not among those whom Gov. Greg Abbott mentioned as being those who would no longer prosecute misdemeanor marijuana cases based on how a bill is being interpreted.

In a Thursday, July 18 press release issued by the Governor’s Office, it read that he, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen and Attorney General Ken Paxton sent a letter to all Texas district and county attorneys regarding recently dismissed marijuana possession cases and reports that some DAs would no longer prosecute misdemeanor marijuana cases.

In the letter, the four state leaders lay out how actions taken by certain DAs do not align with the passage of House Bill 1325 and represent a misunderstanding of how this law works. The leaders urge all DAs to uphold their oath and faithfully execute the law.

“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” the letter read. “The power to change the law is legislative and rests with the Texas Legislature under the Texas Constitution. Since H.B. 1325 did not repeal the marijuana laws of Texas, as judicial branch members, you should continue to enforce those laws by ‘faithfully executing the duties of the office of the [district or county attorney], of the State of Texas, and … to the best of [your] ability preserve, protect, and defend the constitution and laws of the United States and of this state.’”

County Attorney Trey Maffett said he recently reached out to the heads of law enforcement, including those with the school districts throughout the county.

“I wanted to confirm to them and encourage them to continue the enforcement of this crime,” Maffett said. “HB 1325 has certainly caused much discussion and confusion regarding the efficacy in prosecution of possession of marijuana.”

In Wharton County, Maffett said he is responsible for all juvenile prosecution.

“I intend to prosecute these cases as always,” he said.

District Attorney Dawn Allison also spoke to law enforcement agencies to discuss this matter. When she spoke to them, she had not seen Abbott’s letter yet, but was versed in HB 1325.

She shared what was discussed with the heads of law enforcement here.

“This was more of a brainstorming meeting and a final decision on how to proceed with marijuana cases within Wharton County was not reached,” Allison said. “Prior to the meeting, I did extensive research on the issues and concerns of law enforcement and other prosecuting offices within the State of Texas.  Primarily the concern hasn’t been with the law, but the ability to prove such cases beyond a reasonable doubt when there isn’t currently a method available in Texas to test the THC concentration.”

Four days after initially commenting on the matter, Allison added the following:

“I have not made any final decision on how to handle misdemeanor Possession of Marijuana cases however this office does and will continue to require sufficient evidence in order to prosecute. My apologies for the brevity as I am currently in trial.”

In Abbott’s press release, he included information about legislation and the effects it has on marijuana. Below is what he added: 

Marijuana, Hemp, and the 2018 Farm Bill

 Congress’ 2018 Farm Bill differentiated hemp from marijuana by setting a tetrahydrocannabinol (THC) threshold concentration of 0.3 percent. Anything above 0.3 percent is still considered marijuana and therefore generally illegal in Texas.

H.B. 1325 Adopted the Federal Framework

The Farm Bill delegated primary authority over how to regulate the production and sale of hemp to the states. HB 1325 adopted the 0.3 percent THC standard (same as the Farm Bill) for distinguishing regulated hemp from prohibited marijuana. Furthermore, HB 1325 directs the Texas Department of Agriculture to pass rules requiring hemp producers to be state-licensed and test their products to ensure 0.3 percent or less THC concentration.  Importantly, the law also requires a shipping certificate that confirms the product in transport is legally compliant hemp (no more than 0.3 percent THC). Failure to have the required certificate during transport is a misdemeanor and also subjects the person to a civil penalty of up to $500 per violation. In short, HB 1325 gave prosecutors more tools to prosecute these crimes, not less, because they can now prosecute a misdemeanor for failure to have a proper hemp certificate.

Lab Tests Are Only One of Multiple Established Ways to Prove Marijuana Possession Cases

Additionally, as some DAs and county attorneys have pointed out, lab tests are not the only way to prove marijuana possession cases. Adopting this federal definition of hemp did not limit the prosecutorial options for prosecuting marijuana cases. Criminal cases can be proven either through lab tests or through other circumstantial evidence. Furthermore, even before the passage of HB 1325, companies and labs were already developing THC concentration tests. As more companies enter the testing marketplace, the costs of the tests will certainly decline. Finally, even if a lab test were needed, they are not as costly as some initial reporting indicated.

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