Misdemeanor marijuana possession cases won’t be prosecuted because of new Texas law

Victoria May

Because of a new Texas law legalizing hemp and CBD products, possession of small amounts of marijuana has now become nearly impossible to prosecute in Travis County and across the state.

In May, lawmakers passed House Bill 1325 intending to benefit farmers by allowing the cultivation of hemp as a cash crop. The measure, signed by Gov. Greg Abbott last month, differentiates between hemp and marijuana based on the amount of tetrahydrocannabinol the substance contains. In practice, this means Texans can now legally enjoy hemp if it contains less than
0.3% THC.

But the law inadvertently led to the dismissal of 32 felony cases and 61 misdemeanor marijuana-related charges in Travis County, according to the Austin American-Statesman.

County officials said new misdemeanor cases will not be prosecuted because law enforcement agencies lack the necessary equipment to determine the amount of THC in any given sample of cannabis, making it difficult to discern whether a substance is legal hemp or illegal marijuana.

On July 3, Travis County District Attorney Margaret Moore said she’s dismissing all cases related to the possession of marijuana filed on or after June 10. People charged with marijuana possession before June 10 will not have their charges dropped.

“After consulting with the Austin Police Department, the Travis County Sheriff’s Office and the Texas Department of Public Safety, I am dismissing these cases because we cannot obtain a lab analysis on the substances involved to establish the THC concentration,” Moore said in a statement.

APD and Texas DPS said each sample would take eight to 12 months to determine THC concentrationsbecause there is only one lab in Texas that is able test cannabis and determine whether it’s marijuana or hemp, Moore said in statement.

“My deputies have been directed to cease filing misdemeanor possession charges until further notice,” Travis County Sheriff Sally Hernandez said in a statement. “Additionally, felony possession charges involving large amounts of pot will be staffed with the district attorney to ensure that no other illegal activity is being committed.”

Moore said the Legislature’s analysis, which said the bill would not have any fiscal impact on local jurisdictions, is “obviously incorrect.” Texas DPS labs said it could cost the department up to $20 million to hire and train new staff and buy equipment to test for THC, according to The Associated Press. 

Travis County already has more lenient laws regarding marijuana possession compared to neighboring counties, according to the Statesman. First-time offenders caught with under two ounces can take a four-hour diversion class and pay a small fine instead of going to court.

APD Chief Brian Manley said the department still enforces their cite-and-release policy when it comes to minor offenses.

“It’s a relief to know that things like hemp and CBD are becoming less criminalized,” petroleum engineering sophomore Nathan McDermid said. “People are using hemp and CBD to help with things like anxiety, depression and even acne. They shouldn’t have to worry about getting in trouble for using things that contain very slight amounts, if any, of THC.”