Marijuana v. Hemp
On June 19, 2019 an Austin County jury returned a verdict of “not guilty” for my client on what may be the last trial for possession of marijuana in the state of Texas. Just one week prior to the beginning of jury selection, Governor Greg Abbot quietly signed into law House Bill 1325 otherwise known as the Hemp Farming Act. The Act makes the cultivation and processing of hemp legal in Texas and became law effective June 10, 2019.
Under the Act, hemp means Cannabis sativa L. . . . whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. On the other hand, under the Health and Safety Code, marijuana means Cannabis sativa L. In short, marijuana and hemp are the same plant–Cannabis sativa L. The only difference is that to be characterized as marijuana the plant must contain THC above the 0.3 percent standard.
Historically, marijuana convictions could be obtained in Texas based on police opinion testimony alone. That is, an officer’s testimony that he could identify marijuana just by looking at it was sufficient proof. No lab testing was required. However, with the passage of the Hemp Farming Act those days are gone forever. Without laboratory testing it is impossible to prove beyond a reasonable doubt whether a plant is the now legal hemp or the still illegal marijuana.
Possession of less than 4 ounces of marijuana is considered a misdemeanor under Texas law. A vast majority marijuana arrests are misdemeanors. Most of these cases result in probation and fines for the typical offender.
The Texas Department of Public Safety runs the police crime lab in Texas. DPS is not equipped, staffed or prepared to runs tests on thousands of cases involving possession of small quantities of marijuana. Indeed, waiting times on more serious felony drug cases are typically 9 or more months. With these backlogs there is no way for DPS to handle the increased work load of testing thousands of additional samples needed to prove a misdemeanor charge of possession of marijuana.
Faced with this new reality, prosecutors across the State are dismissing hundreds of pending possession of marijuana cases and refusing to file new ones. In addition, law enforcement agencies are being instructed by many prosecutors not to arrest or charge for possession of marijuana without first obtaining forensic laboratory testing of any suspected contraband.