Image: Cannibis sativa, the hemp plant which is the source of marijuana. The Texas Legislature legalized the sale of agricultural hemp products in House Bill 1325, which Governor Greg Abbott signed into law on June 10, 2019, as long as those products contain 0.3% or less of tetrahydrocannabinol (THC), a psychoactive component of the plant. The legislation has created a major problem for Texas law enforcement agencies, because their crime laboratories don’t have the equipment to detect the amount of THC in a substance but only whether THC is present. It’s a major problem.
Conroe, July 1 – Montgomery County District Attorney Brett Ligon, the no-nonsense, tough-on-crime prosecutor, issued a statement late yesterday, on Sunday, June 30, 2019, that the Montgomery County District Attorney’s Office “will not be joining those Texas prosecutors who have prematurely announced limitations on the acceptance of new marihuana cases as the result of the passage of House Bill 1325…This office will not use the anticipated problems in implementing the new legislation as a pretext to achieve the policy goal of ending prosecution of marihuana cases, particularly after the recent failure of all legislative efforts to decriminalize or reduce the penalties for possession of marihuana.”
“This office will not use the anticipated problems in implementing the new legislation as a pretext to achieve the policy goal of ending prosecution of marihuana cases, particularly after the recent failure of all legislative efforts to decriminalize or reduce the penalties for possession of marihuana.” – – Montgomery County District Attorney Brett Ligon, Sunday, June 30, 2019, in an official policy pronouncement to local law enforcement agencies.
What the problem is and how it arose
House Bill 1325, which Governor Greg Abbott signed into law on June 10, and which became effective immediately after passing both houses of the Texas Legislature almost unanimously, legalized the production of hemp as an agricultural product in Texas as long as the products contained 0.3% or less of tetrahydrocannabinol (THC), a psychoactive component of the Cannibis sativa, the plant which is the source both of hemp products as well as of marijuana.
Law enforcement agencies presently have equipment to detect the presence of THC, but very few crime laboratories have the equipment necessary to measure the amount of THC in a substance. In order to measure the amount of THC, one must have a High Performance Liquid Chromatography (HPLC) Detector. The prices of an HPLC Detector range from $923 for a used one to about $44,000 for a warranty-protected new one, if one examines products available on eBay and Alibaba. X-ray fluorescence, a much less expensive method, doesn’t work with complex organic molecules such as THC. In actuality, a scanning electronic microscope is the only truly precise method of determining THC levels but has a level of precision – and a cost – far beyond what is necessary in a crime lab.
President Donald Trump signed the Hemp Farming Act of 2018 on December 20, 2018, which changed hemp from a controlled substance to an agricultural commodity, legalizing hemp at the federal level, and making it easier for farmers to obtain production licenses and financing and crop insurance.
In Texas, HB 1325, which democrat Representative Tracy King of Laredo authored and which Texas Agriculture Commissioner Sid Miller endorsed, establishes a system of occupational licensing for hemp producers and, of course, permits the State of Texas to collect fees from hemp producers for licensing and other regulatory pretexts.
The problem, however, is that law enforcement officers don’t have the ability to determine the level of THC but only whether THC is present. Therefore, officers at a traffic stop would find it difficult, if not impossible, to measure the level of THC in a substance.
On April 1, 2019, the House Agriculture and Livestock Committee conducted a hearing on House Bill 1325. Committee Chairman Drew Springer, a Republican from Muenster, specifically asked Brady Mills, the Crime Lab Director of the Texas Department of Public Safety, whether Springer believed there were any problems with the proposed legislation. Springer explained during his testimony, “We do not currently quantitate THC in samples. So we would have to go through a validation process and procure some instrumentation to be able to do that quantitation.” Amazingly, none of the Committee members raised any questions. No one notified Governor Abbott of the major problem with the proposed legislation. The Committee approved the legislation on a unanimous vote on April 12, 2019, and sent the bill to the House Calendars Committee for inclusion on the House calendar.
The bill easily passed the Senate unanimously. Governor Abbott signed it into law on June 10.
No one caught the major problem.
State Representative Steve Toth, Republican of Conroe, told The Golden Hammer yesterday, “No matter what your feelings are on the legalization of pot, the unintended consequences of this bill are serious for our law enforcement community. Without the means to distinguish between hemp, with a THC level at or below 0.3% and marijuana, law enforcement is between a rock and a hard place.” Toth elaborated, “Police can still confiscate what they suspect to be marijuana and issue a citation. The suspect can then be charged at a later date once the potency of the product is determined in a crime lab.”
State Senator Brandon Creighton, Republican of Conroe, told this newspaper early this morning, “We are in communication with the Governor’s office, the Attorney General, and the district attorneys association to determine the appropriate steps forward. There could be an option to provide funding for testing equipment for certain local jurisdictions to rely on but that’s to be determined. I haven’t discussed a special session as an option with the Governor, but it’s always a possibility.”
State Representative Will Metcalf, also a Republican of Conroe, said, “This issue was brought to my attention at the end of last week. My staff and I have been working on gathering information from DPS and the Governor’s office to see what the most appropriate course of action is. I’ll keep you posted.”
Tarrant County District Attorney Sharen Wilson announced that she was dismissing two hundred and thirty-five (235) marijuana possession cases pending in Tarrant County criminal courts, because “The lab report [detailing the level of THC in the contraband] in our estimation is now a requirement of the crime because it’s the only way you can tell legal from illegal.” Wilson dismissed the cases on Wednesday, June 28, 2019.
Harris County District Attorney Kim Ogg has essentially decriminalized marijuana possession in Harris County through her policy of not prosecuting most marijuana possession cases. Ogg is presently considering a formal policy making clear that her office will not take misdemeanor marijuana possession cases without crime lab determinations of the level of THC first. Ogg has prepared a draft policy statement, which she and other prosecutors have distributed to urge other district attorneys around Texas to sign.
The Golden Hammer obtained a copy of Ogg’s draft policy statement from a source who requested anonymity for fear of reprisal. Her draft follows.
Montgomery County’s District Attorney Ligon could not have made the policy of his office more clear. The Montgomery County District Attorney’s Office will continue to prosecute marijuana possession cases regardless of this inadvertent problem.
To Montgomery County law enforcement agencies:
The Montgomery County District Attorney’s Office will not be joining those Texas prosecutors who have prematurely announced limitations on the acceptance of new marihuana cases as the result of the passage of House Bill 1325.
While that legislation will eventually permit state officials to issue licenses for hemp cultivation and the production of certain hemp products, it is important to note that those agencies must first promulgate rules and regulations to govern the licensing process and the regulation of the hemp industry. At this point no licenses have been issued and no legal hemp is being grown in this State.
It is also important to note that the legislation expressly prohibits the issuance of licenses for the production of hemp products intended for smoking or vaping.
Even after licenses are issued, legal hemp growers and transporters will be required to maintain and produce appropriate paperwork authorizing their activities. With appropriate training and experience, law enforcement officers should have no difficulty developing probable cause to believe that an individual possesses marihuana intended for smoking, rather than lawfully cultivated hemp.
When a peace officer has developed probable cause to believe that an individual unlawfully possesses marihuana, the Montgomery County District Attorney’s Office will continue to accept and file appropriate criminal charges. And this office will continue to dispose of marihuana cases utilizing appropriate plea bargains and pretrial diversion programs.
It is true that there will be, for some undetermined period of time, a shortage of laboratories capable of determining the THC concentration of hemp and marihuana, and distinguishing lawful hemp from unlawful marihuana containing a THC concentration of more than 0.3 percent. But the anticipated delays in disposing of those few cases in which individuals persist in pleading not guilty do not justify prosecutors’ abdication of their responsibility to enforce the criminal laws of Texas.
This office will not use the anticipated problems in implementing the new legislation as a pretext to achieve the policy goal of ending prosecution of marihuana cases, particularly after the recent failure of all legislative efforts to decriminalize or reduce the penalties for possession of marihuana.
BRETT W. LIGON