Some Harris County marijuana cases won't be prosecuted due to new Texas hemp law, DA says

HOUSTON - The Harris County district attorney's office said Tuesday it will not accept some marijuana possession charges due to a new state law regarding hemp.

KPRC2 reported last week about how Texas House Bill 1325 is forcing some Texas district attorneys to dismiss marijuana cases.

Harris County District Attorney Kim Ogg said that possession of marijuana cases that involved 4 oz. of pot and under would not be prosecuted without a lab test result showing that the evidence has a tetrahydrocannabinol concentration, or THC, of more than 0.3%.

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That number is defined as the cutoff by the state of Texas as to whether the plant is hemp, which is legal, or not. THC is the psychoactive compound that can produce a high in users.

HB 1325 created a State of Texas Hemp Production Plan that went into effect June 10, legalizing hemp with a THC concentration level of 0.3% or below.

"Under the new law, proof beyond a reasonable doubt will require laboratory testing for THC concentration," a news release from the DA's office read. "Felony marijuana charges will be evaluated on a case by case basis by our office. In the proper instances, such charges may be taken while lab test results are pending."

The Harris County Sheriff's Office sent the following statement to KPRC2:

"The Harris County District Attorney’s Office has advised local law enforcement agencies that recent changes to state law approved by the Texas Legislature have made enforcement of low-level marijuana possession laws extremely difficult. The Harris County Sheriff’s Office will work with the District Attorney’s Office to continue targeting felony-level drug traffickers who pose a greater threat to public safety. We’re still reviewing our options for misdemeanor-level marijuana cases. In the meantime, we’re instructing deputies to collect suspected marijuana for possible future lab analysis and consideration of charges."

Houston police chief Art Acevedo sent the following response:

"Marijuana is still illegal to possess or sell in Texas. The Houston Police Department will continue to refer misdemeanor possession cases to the HCDA’s office for entry into the Misdemeanor Marijuana Diversion Program. Persons possessing a misdemeanor amount of marijuana that do not participate in the diversion program will be subject to having charges filed at a later date. Felony Marijuana charges will be sought prior to quantification testing in some instances and post testing in others depending on the underlying facts."

To find out what other Houston-area counties are doing, click on this story.

Read more about the new law below:

A new state law is already causing issues with crime labs. Labs are now required to test evidence using new standards. KPRC spoke with crime labs and district attorneys about the issues arising.

What is the problem?

Texas crime lab directors and district attorneys said the new law has created a problem when testing marijuana cases for prosecution. Hemp and marijuana come from the same cannabis plant family, but hemp has a much lower concentration of THC than marijuana. Before the new law, Texas law was clear in that no amount of THC was allowed. Therefore, crime labs only had to detect whether THC was present in a sample, not the concentration level. The new law means labs now need to test for THC levels before prosecutors can determine whether a sample is legal or illegal.

President and CEO of the Houston Forensic Science Center, Dr. Peter Stout, said most Texas labs are not equipped to test for concentration levels, only to answer “yes” or “no” as to whether THC is present in a sample.  

“The testing is insufficient to distinguish between hemp and marijuana,” said Stout. "If I can't test for it and produce that result, then prosecutors are not going to be able to prosecute cases.”

A prosecutor with the Waller County District Attorney’s Office, Warren Diepraam, said the office is dismissing about 200 misdemeanor marijuana cases filed after the law took effect because the office can’t incur the cost of having all those samples retested at independent labs. Diepraam said tests can cost between $200 and $500 per sample. He said the DA’s Office will incur this expense for felony cases.

“We can't prosecute them because we can't say beyond a reasonable doubt whether the substance is illegal or legal,” said Diepraam. “Because of the cut-off levels the legislature made and the distinction between legal and illegal, it's a whole new ballgame.”

Officials with the Tarrant County District Attorney’s Office told KPRC they are dismissing 235 misdemeanor marijuana cases.

The Texas Association of District and County Attorneys gave a detailed breakdown of the potential problems stemming from the new law. You can read about that here.

How long does it take for a lab to get set up to test for concentration levels?

Stout said it can cost between $500,000 and $600,000 for a lab to purchase the equipment needed to test concentration levels. He said it then takes between nine and 12 months of validation and accreditation before a lab is certified to test for THC concentration levels.

Officials with the Harris County Institute of Forensic Sciences tell KPRC they are currently working on validating a method to test for THC concentration, but it could be several months before that work is complete.

Were lawmakers aware of this side effect before passing the law?

Stout is also president of the Texas Association of Crime Lab Directors. He said he and his colleagues tried to warn lawmakers about the potential problems the new law would have but “they didn't see the potential implications.”

KPRC tried to speak with the author of the bill, state Rep. Tracy King, D-Batesville, but we have not yet received a response.

KPRC also posed these questions to officials with the Texas Department of Public Safety. The DPS lab does forensic testing for law enforcement agencies across the state. We are still awaiting a response.

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