DPS says it won’t test low-level pot cases leaving Texas counties scrambling to find solution

HEMPSTEAD – A recent letter from the Director of the Department of Public Safety has some District Attorney's Offices concerned about their ability to prosecute misdemeanor drug cases. The issue arises from confusion created by the state's new hemp law.

As KPRC 2 Investigates has been reporting since last year, when Texas passed the new hemp, it created a problem with prosecuting misdemeanor marijuana cases. Since hemp and marijuana are so similar, a test is now required to differentiate the two. However, no crime lab in the state was set-up to do that test.

As a result, many jurisdictions put the prosecution of misdemeanor marijuana cases on hold. A letter signed by DPS Director Steve McCraw explains the state’s crime lab should be ready to begin this new type of testing by summer.

The letter further reads the state legislature provided no extra funding to handle the volume of misdemeanor cases.

"Annually, there are more than 80,000 misdemeanor marijuana arrests made in Texas. DPS will not have the capacity to accept those misdemeanor cases," the letter reads.

In the past, DPS did not test misdemeanor drug cases unless a jurisdiction made a special request. However, many DA's thought the state would help test the backlog of misdemeanor marijuana cases created by the new hemp law.

Before the creation of the new law, testing was not typically needed due to an officer's training and experience was enough to establish whether a substance was marijuana. If a test was done, the result only had to show the presence of THC.

The state's new law allows for hemp with a THC level of 0.3 percent or below. Since hemp and marijuana look and smell very similar on the street, a test now has to be done to determine the level of THC, the compound that can produce a high in users.

This issue is not a problem for large jurisdictions with local crime labs, like Harris County, which is developing testing protocols. However, smaller jurisdictions that don't have the funds to do this are scrambling for a solution.

"We're telling law enforcement in the county that you can still arrest people, but we're not prosecuting them," said Waller County prosecutor Warren Diepraam. "It's correct that we're not going to be able to prosecute any misdemeanor drug cases because DPS will not test them."

Diepraam said the county looked into testing at private labs, but he said the costs are "astronomical."

"This just basically hangs small jurisdictions out to dry," Diepraam said.

Galveston County is also struggling to find a way forward. A letter from District Attorney Jack Roady to law enforcement agencies in the county reads: "DPS has now stated for the first time since the passage of HB 1325 that it will not be conducting testing in misdemeanor marijuana cases."

"If the state refuses to provide these services, then we will need to meet to develop an appropriate plan to move forward," Roady wrote.

"We're not going to waste people's time waiting for the legislature to fund testing," Diepraam said.

Brazoria County District Attorney Jerri Yenne told KPRC 2 they are spending the money to get a lab up and running. The lab should be complete by June.