Texas DPS officers told not to arrest in low-level marijuana cases after new hemp law

Texas’ largest law enforcement agency is moving away from arresting people for low-level marijuana offenses. It’s the latest development in the chaos that has surrounded pot prosecution after state lawmakers legalized hemp this year.

As of July 10, all Texas Department of Public Safety officers have been instructed to issue a citation for people with a misdemeanor amount of the suspected drug — less than 4 ounces in possession cases — when possible, according to an interoffice memo obtained by The Texas Tribune. The citation requires a person to appear in court and face their criminal charges.

Those issued a citation for misdemeanor charges still face the same penalties if convicted — up to a year in jail and fine of $4,000.

“Departmental personnel are expected to continue enforcing marijuana related offenses,” the memo states. “However, effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”

The DPS policy change came about a week before Republican state leaders, including Gov. Greg Abbott, chastised prosecutors who have dropped marijuana cases or put them on hold because of the new law. Prosecutors have claimed they need new lab reports to differentiate hemp from marijuana. A DPS statement said Thursday that the agency's memo was sent to reinforce that marijuana enforcement should continue despite local prosecutors now refusing cases.

"This internal memo was necessary in order to address reports that local prosecutors were interpreting the new statute differently, which was impacting the level of enforcement action law enforcement could take," the statement read. "Even in jurisdictions where the local prosecutor will not accept marihuana cases without a quantitative lab report, DPS will continue to enforce the law through available statutory means, including cite and release as an alternative to putting people in jail."

A spokesperson for Abbott did not immediately respond to questions for this story.

The memo by Randall Prince, deputy director of law enforcement operations at DPS, was sent out to guide enforcement practices in light of the new hemp bill that passed the Texas Legislature, House Bill 1325, and was signed into law last month. Prince clarified that HB 1325 does not decriminalize marijuana, writing, “Because marijuana and hemp come from the same plant, it is difficult to definitively distinguish the two without a laboratory analysis.”

That difficulty has led prosecutors across the state to drop hundreds of low-level marijuana cases and stop accepting new ones, since lab testing to differentiate between now-legal hemp and illegal marijuana is not currently available in government crime labs.

But while prosecutors have said the lack of testing knocks down their ability to prove something is marijuana beyond a reasonable doubt and secure a guilty verdict, the DPS memo stated that officers can still find probable cause — the legal burden needed to charge someone with a crime. Prince said the possibility that a substance is hemp, not pot, doesn’t outweigh the burden. He added that hemp production in Texas hasn’t yet started, making it “unlikely that any substance encountered now is hemp.”

However, in Tarrant County, law enforcement has sent some pending felony cases to a private lab that can differentiate between hemp and marijuana. The difference is marked by the level of tetrahydrocannabinol, or THC, in a cannabis substance. THC is the part of cannabis that gets you high. If it contains less than 0.3% of THC, it’s legal hemp; otherwise, it’s illegal marijuana.

The first two substances that came back with test results in Tarrant County contained 13% and 15% THC — making them marijuana, according to a spokesperson for the Tarrant County District Attorney’s Office. The third substance in a marijuana case had 0.2% THC — which is legal hemp.

It’s still unclear how much the new policy will impact marijuana prosecutions statewide. DPS did not respond to questions about how often its officers arrested people on misdemeanor marijuana offenses before the law change. The last annual safety report on the agency’s website, from 2016, says highway patrol troopers conducted about 65,000 criminal arrests — with no indication of how many were for marijuana or any other drug. In all of Texas in 2016, law enforcement officers arrested about 86,000 people on misdemeanor marijuana charges, according to DPS statistics given to budget officials this year.

There are also restrictions to the policy directive. Under Texas law, citations in lieu of arrest are only allowed if the suspected crime happens in the same county where the person lives. Marijuana found during traffic stops outside of a suspect’s home county along Texas highways, where DPS troopers often patrol, would still result in arrests.

And perhaps most restrictive, the memo says DPS regions should first consult with local prosecutors before implementing the new policy of cite and release and “follow each prosecutors’ direction regarding whether to cite or arrest.”

DPS said in its statement that before the hemp law, DPS was arresting and booking people on marijuana possession cases in most counties, and "we will continue to do just that in jurisdictions where prosecutors are accepting cases without a quantitative lab report."

A growing number of law enforcement agencies have cite-and-release policies for low-level charges. Some counties also offer defendants a diversion program to keep their records clean and keep them out of jail. These types of policies exist in Harris, Dallas, Bexar, Travis and Nueces counties. They rely on a court system in place to accept those cases.

“It’s a collaborative effort,” said Troy Gay, Austin Police Department’s chief of staff. “If a court does not have a cite-and-release process set up, there’s no way for any law enforcement in that jurisdiction to do that.”

Most counties don’t have that process, potentially stopping DPS cite-and-release practices in largest parts of Texas. Gay did not have information on how often people in Austin cited for misdemeanor offenses failed to show up to their court dates, but he said police are arresting people much less. From the first fiscal quarter of 2018 to 2019, the arrest rate for cite-and-release eligible offenses dropped 59%, he said. The Travis County attorney, who handles misdemeanor prosecution, did not immediately respond to questions about cite and release.