Travis County to Reject Marijuana Prosecutions

Officers can't legally determine what is weed and what is hemp

Is it weed, or is it hemp? Check back in eight to 10 months ...

UPDATED: Travis County prosecutors will now reject Possession of Marijuana cases filed from June 10 forward, unless they’re accompanied by a lab report. This comes as an unintended consequence of House Bill 1325, legalizing hemp cultivation, which was signed into law by Gov. Greg Abbott last month.

County Attorney David Escamilla confirmed this news to the Chronicle this afternoon. “The law is the law,” he said, referring to the "Farm Bill", which specifically defines "hemp" as cannabis that contains less than 0.3 percent tetrahydrocannabinol (THC). What Abbott and the many GOP legislators who backed HB 1325 surely didn’t consider was that law enforcement agencies don’t have accredited lab equipment that can quantifiably analyze the concentration of THC in a lab sample. Therefore, it’s impossible for them to discern whether confiscated cannabis is legal "hemp" or forbidden "marijuana."

Today, Escamilla met with Travis County Sheriff Sally Hernandez, Austin Police Chief Brian Manley, and Travis County District Attorney Margaret Moore. Escamilla says that there have been 61 Possession of Marijuana cases filed since June 10 — the day the law was signed — with ten from the Sheriff’s Office and the remainder from APD. An APD spokesperson told the Chronicle this afternoon that “We are in the process of trying to adjust our processes to the new guidelines.”

This news follows similar moves from district and county attorneys across the state, including in Tarrant, Harris, Bexar, Fort Bend, and Nueces counties. Tarrant County has dismissed more than 230 possession cases in light of how the new hemp legislation complicates verifying what qualifies as marijuana.

Escamilla confirmed that there is currently only one company in the entire state of Texas that’s accredited to determine THC content and that another is ready to be accredited. He says APD has, to some degree, the technology required, but its methodology has not been accredited. He projects it taking eight to 10 months before county law enforcement agencies will have their processes sorted out.

Updated Wednesday, July 3, 5:00pm:

Travis County District Attorney Margaret Moore announced in the late afternoon that she’s dismissing 32 felony cases related to possession or delivery of marijuana — all filed on or after June 10. She will be contacting the arresting law enforcement agencies and “inform them of the need to dismiss these cases and to evaluate whether the offenses are serious enough to warrant the additional expense.”

Moore was quoted in a statement, issued by her office:

“After consulting with the Austin Police Department, the Travis County Sheriff's Office, and the Texas Department of Public Safety, I am dismissing these cases because we cannot obtain a lab analysis on the substances involved to establish the THC concentration.”

“Both labs are telling me it will be eight to twelve months before they can determine THC concentrations and our only other option will be to pay private labs for each submission. Additionally, the testing lab will have to be paid to testify, which will incur additional expense. And, of course, since we only know of one lab that is presently able to this testing, the time to get results could be quite lengthy.”

Updated Wednesday, July 3, 5:55pm:

The County Attorney Office’s rejection of misdemeanor marijuana cases is not retroactive — only applying to cases from June 10 or thereafter.

Betty Blackwell, President of the Capital Area Private Defender Service board, told the Chronicle early this afternoon that she believes case law states — on procedural matters such as this — that dismissals should go into effect when a case is tried and, therefore, be applied to all pending cases.

She also wants to see old warrants for misdemeanor possession charges to go away. She says there are about 4,000 currently outstanding in Travis County. Blackwell contends that serving the warrants would be “grossly unfair if down the road the cases will just be dismissed.”

Anticipating today’s decision, and observing what has been occurring in other Texas Counties, Blackwell had already sent a message to the Capital Area Private Defender Service’s network of attorneys, advising them not to plead any cases involving possession of marijuana.

This is a developing story, more updates to come, here and in print

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