The Texas Department of Public Safety is almost ready to roll out its long-awaited lab test to tell if cannabis is newly legal hemp or illegal marijuana. But DPS Director Steve McCraw notified Texas law enforcement agencies this month of a crucial caveat: The state labs won’t do testing in misdemeanor marijuana possession cases.
That will likely entrench what has become a patchwork system of marijuana enforcement across the state. Possession of a small amount of pot could mean no criminal charges in one county and jail time in a neighboring one. In Texas, misdemeanor marijuana offenses include possession of up to 4 ounces and the sale or delivery of up to 7 grams.
The situation comes after the Texas Legislature changed the definition of marijuana last year in order to legalize hemp, drawing a new distinction between two substances that can look and smell the same. The illegal drug changed from the cannabis plant to cannabis containing more than 0.3% THC, the compound in the plant that produces a high.
As lawmakers moved that legislation forward, DPS asked them for additional funding to test THC levels — and thus determine if cannabis is marijuana — in both felony and low-level possession cases. McCraw's letter this month said the legislature did not provide money for testing in misdemeanor cases, so “DPS will not have the capacity to accept those.”
Since the law change, prosecutors across the state began taking very different approaches to pursuing marijuana charges. Some are prosecuting pot cases as before, depending on circumstantial evidence without lab results. Others stopped accepting new low-level marijuana cases unless police could hand over a lab report that showed what they had was illegal.
It was a report public labs in Texas couldn’t produce yet, pushing local agencies to costly private labs or leaving pot cases to sit on the shelf as government scientists scrambled to come up with a new test to chemically distinguish legal hemp from illegal marijuana. McCraw said that test is nearly ready, but it’s only for felonies — and only for plant materials, not oils or edibles.
The DPS decision not to accept misdemeanor cases was always a possibility, but “there were some prosecutors that were still holding out hope that they would get some help from the state,” said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.
“It is yet another unfunded mandate, and it’s another hurdle to successfully prosecuting these cases,” he said.
The new THC test in state labs is expected to be finalized at the end of March, and DPS will need another two months to get it implemented, McCraw said in the letter. Afterward, the agency expects to take about 75 days to test the 845 felony plant cases local agencies have already sent over before moving on to cases sitting in police or prosecutor evidence rooms.
Some law enforcement agencies have already found their own solutions to marijuana enforcement in the months since the law changed. Denton County is one whose district attorney now requires police to submit a lab report before a case will be prosecuted, but it has not stopped arrests, said First Assistant District Attorney Jamie Beck.
“Most of our agencies are using private labs,” she said. “I’m going to assume they’re going to continue doing that.”
Beck said the county has seen a drop in marijuana cases, but not as large as the drop statewide, where cases have plummeted. She said some police agencies in her conservative county aren’t pursuing low-level marijuana cases anymore, but most are pursuing them even though it now costs more to do so.
Big cities often have their own local crime labs, but the DPS labs have long been the testing agency for narcotics for most of Texas, according to Jackson County Sheriff A.J. Louderback. He said the DPS decision and the hemp law have “unequivocally” affected midsize cities to rural communities the most.
“At a minimum, it will affect rural law enforcement who don’t have the resources for this and rural prosecutors,” he said.
But he acknowledged that DPS has limited resources and a history of large backlogs. In his letter, McCraw said DPS labs analyze more than 50,000 felony drug cases a year, and more than 80,000 misdemeanor marijuana arrests occur annually.
DPS told lawmakers last year that it would likely need millions of dollars tied to the hemp bill to be able to differentiate between marijuana and hemp in criminal proceedings.
“DPS can only speculate on the volume of cases where a defendant might claim the substance for which they are arrested is actually hemp,” the agency wrote in a budget request attached to the bill. “Also, DPS labs do not currently routinely test marihuana for misdemeanor charges unless the prosecutor or law enforcement officer makes a special request because it is needed for trial.”