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Did Texas Lawmakers' Efforts To Legalize Hemp Complicate Pot Prosecutions?

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Ryan Poppe | Texas Public Radio

District attorneys in Bexar, Harris, Fort Bend, and Nueces counties have agreed to not prosecute low-level marijuana arrests. But their new policies may lead to new complications. 

They said law enforcement and prosecutors lacked the laboratory equipment to distinguish between marijuana and hemp, which was recently legalized in Texas.

Hemp is defined by a new state law as anything containing 0.3% or less of THC, the psychoactive component of marijuana.

TPR’s Ryan Poppe spoke with Texas A&M School of Law Professor Frank Synder to sift through the issue and answer the question: Did Texas lawmakers efforts to legalize hemp also decriminalize marijuana at the same time?

Poppe: Looking at the surface of this, didn’t they kind of create a problem for prosecutors by defining what hemp and marijuana is?

Synder: Yes, they created a problem but it’s a classic case of the law of unintended consequences. As far as I can see, virtually no one thought about the possibility if we legalized hemp that all of a sudden all of the marijuana prosecutions would be in trouble. You know, the reason we banned hemp in the first place is because it looks so much like marijuana, and once you legalize hemp and hemp-derived products, you have the difficulty of distinguishing them from marijuana, which you can’t -- chemically -- because they are the same plant.

P: Is weed technically legal now in places like Bexar County?

S: Is it legal? No it’s absolutely not legal. It’s completely illegal at the federal level [and] it’s illegal at the state level because the law says it must contain less than 0.3% THC. So what you get is the difficulty between something being illegal and something being prosecutable.

P: We’re talking about prosecutors who said they are not going to prosecute these crimes for the time being. But there are a few like Grimms County and Montgomery County who said that they are going to continue to prosecute these cases. There are a number of sheriffs' offices as well as smaller law enforcement offices who said they were going to continue to make these arrests, at least felony marijuana arrests. So when you’re accused of a crime, you have the right to a trial in a reasonable timeframe, so how is holding on to these cases indefinitely or until you can obtain the necessary lab equipment not violating someone’s constitutional rights?

S: That’s an excellent question. So the question is not whether a prosecutor is going to prosecute these people, because even the cases being dismissed now can be refiled later as soon as they get the equipment, so the prosecutors who are dismissing are avoiding the speedy trial issues. But the others who are doing the arrests now may be thinking that they’ll be able to get the testing in a reasonable time, or they may be deciding that the process of charging people and then dismissing it and then recharging them is a way to keep marijuana off the streets while playing a little bit fast and loose with constitutional rights.

P: The other issue I thought about is what type of [prosecution] backlog would this create?

S: The big counties which have lots and lots of these prosecutions are very likely to see backlogs that would be near impossible to deal with unless they can bring an awful lot of resources to bear, which they probably don’t want to do. In smaller counties, where they have fewer backups -- you know, if you’ve got a county of 50,000 people in it, the sheer number of offenses is not going to be that great, and a little backlog isn’t going to hurt you.

P: Politically, how does this impact people still wanting to reform Texas’ marijuana laws?

S: All of us kept saying, 'look, look, hemp is different than marijuana, and legalizing hemp doesn’t mean we are on the slippery slope for recreational cannabis,' and all of sudden we pass hemp legalization, and we are on the slippery slope to recreational marijuana. So all the people who said 'my God we can’t have hemp because it’s going to lead to marijuana legalization' are now looking and pointing and saying 'hey, hey, see what’s happening? They’re throwing out marijuana cases because of this hemp bill, we told you this would happen.'

Ryan Poppe can be reached at RPoppe@TPR.org and on Twitter at @RyanPoppe1.