A veteran lawmaker hopes actions taken by state legislatures in Washington and Colorado will pave the way for Texas policymakers to consider a bill that hasn’t been heard in committee in nearly a decade.
House Bill 594, by state Rep. Elliott Naishtat, D-Austin, would provide an affirmative defense for patients who use marijuana based on the recommendation of their doctors. The bill would not allow a doctor to prescribe the illegal drug, but there would be no penalty levied against a physician who discusses it or recommends it, Naishtat said.
“There are two hurdles,” for the patient, he said. “You have to have a bona fide medical condition like cancer, AIDS, Parkinson’s, multiple sclerosis. And you have to have a licensed physician who has suggested or recommended you try marijuana to alleviate the symptoms of the conditions.”
Naishtat said patients with legitimate diagnoses with those and other diseases should be able to make their cases in court to avoid prosecution.
“You can say, ‘Your honor, look at me. I am not a criminal. My doctor suggested I try this. It helps me live with my pain. It helps me work.’ The judge could say, ‘Go home,’ even though you are using an illegal substance.”
Naishtat said that what has changed since 2011 — when the bill was referred to the House Public Health Committee but never heard — is that Washington and Colorado recently legalized the recreational use of marijuana.
“This greatly increases the chances that we will get a hearing,” Naishtat said.
The Texas chapter of the National Organization to Reform Marijuana Laws, known as Texas NORML, sent a 12-page information guide to legislators this week. It includes endorsements from religious and medical groups that see the benefits of medicinal marijuana. It also contains statistics on arrests and criminal justice costs incurred under current state laws, along with polling information that reflects changing attitudes toward decriminalization of marijuana and the medical use of it.
Currently, possession of up to two ounces is a class B misdemeanor, which carries penalties of up to 180 days in jail and up to a $2,000 fine, or both. Under Dutton’s bill, possession of up to one ounce would become a class C misdemeanor, which carries of a fine of up to $500 and no jail time. Possession of more than one ounce would remain a class B offense.
The state "is still going to get some money, and it’s still going to be against the law, if this passes,” said Cheyanne Weldon, the director of women's outreach for Texas NORML. “But it will save so much money and will save probably 50,000 people a year from having a criminal record in Texas.” Citing Texas Department of Public Safety data, the group says decriminalization alone would save the state more than $750 million a year.
Advocates concede that efforts to reduce restrictions on marijuana in a Republican-dominated legislature are no small challenge, but they say the more attention paid to the matter, the more likely change will occur sooner than later.
“Practically every legislator that I have been able to speak to understands, on some level, that this is coming,” Weldon said. Like Naishtat, she cited the laws in Washington and Colorado as a potential momentum builder.
Proponents face another hurdle, though, after the U.S. Circuit Court for the District of Columbia on Tuesday rejected a lawsuit that attempted to reclassify marijuana and remove it from the list of Schedule 1 drugs. The ruling means marijuana will still be defined as a substance that is dangerous and without proven medical use, The Associated Press reported. The lawsuit was filed by several medicinal marijuana users and organizations, including Americans for Safe Access, the Coalition to Reschedule Cannabis and Patients out of Time.
The most recent state polling also suggests most Texans do not support reduced restrictions on the use of marijuana. Only 33 percent of voters asked in 2011 said they favored legalizing marijuana, compared with 66 percent who didn’t, according to the Texas Lyceum Poll. Only 11 percent of the respondents who said they do not favor legalization said their opinions might change if legalization provided significant tax revenue. A 2011 Texas Tribune/University of Texas poll showed that 41 percent of respondents favored legalizing and taxing marijuana.
A national poll, however, yielded better results for proponents of reform. About 57 percent of voters nationwide favored legalizing and regulating marijuana similar to the way alcohol and tobacco are regulated, according to a May 2012 poll conducted by Rasmussen.
Since 1996, when California became the first state to pass a medical marijuana law, 17 other states and the District of Columbia have passed legislation or voter initiatives that allow certain patients to legally access marijuana, according to the Drug Policy Alliance.