At the Capitol, Texas Tries to Catch Up With Cannabis

Illustration by Jason Stout

Oklahoma's making Texas look bad. They've got a robust medical marijuana program, a head start on industrial hemp production, and cannabis laws that are significantly less terrifying than ours. In fact, all our bordering states – including those in Mexico – offer medicinal cannabis for their residents with chronic conditions. From where we stand, it's hard not to feel like the Lone Star State is behind the curve and missing out: on job creation, on new income streams, on tax revenue, on an equitable justice system, on a crucial component of health care.

Much of that could change during this landmark session of the 86th Texas Legis­lat­ure, running through May 27, during which a state-record 59 cannabis-related bills have been filed on topics ranging from decriminalizing marijuana possession and use to growing hemp, broadening the availability of cannabis-based medicine, regulating drug testing, and clarifying legalities surrounding CBD and other cannabis derivatives. Recreational marijuana access is not on the table, but as the 10 states where it is legal have already proven, it's often not a giant leap, but a cavalcade of baby steps that leads to true legalization. Given that, here's the lay of the land.

Have Some Compassion!

The cliche that "Everything's bigger in Texas" pertains little to our medical marijuana program, which ranks amongst the smallest and most restrictive in the nation. In a nutshell: A patient can only get a prescription if two physicians diagnose them with intractable epilepsy; the singular cannabis-based treatment is CBD oil containing less than 0.5% THC; and there are just three businesses in the state licensed to manufacture and distribute the medication.

That's all under the terms of the Texas Compassionate Use Act, passed in 2015, in which the state ever-so-gently opened the door to utilizing medical cannabis to ease the suffering of residents with debilitating illnesses. Four years later, 20 bills have been filed in the House and Senate that would broaden the scope of the program.

Senate Bill 90, by Sen. José Menéndez, D-San Antonio, would add nearly two dozen ailments to the list of conditions qualifying for the Texas Compassionate Use Program (TCUP), including cancer, glaucoma, AIDS, Parkinson's disease, and post-traumatic stress disorder. Rep. Stephanie Klick, R-Fort Worth, the registered nurse and former Tarrant County GOP chair who authored Texas' original Compassionate Use Act, has doubled down with House Bill 3703, seeking to extend the state's medical cannabis program to serve patients with multiple sclerosis, epilepsy, and spasticity while removing the requirement of approval from two physicians.

Meanwhile, Rep. Eddie Lucio III, D-Browns­ville, has HB 1365 continuing to gain traction after germinating in the 2017 legislative session. That bill also expands the conditions meriting access to medical cannabis, including using it to treat symptoms caused by traditional medications, while allowing doctors increased freedom to decide what's best for their patients. The measure – which has beaucoup bipartisan support via 53 co-authors and was unanimously approved at a Public Health Com­mit­tee hearing in April – also calls for labeling standards on cannabis-derived medications and would protect independent businesses in the industry from exorbitant licensing fees.

Morris Denton (Photo by David Brendan Hall)

The passage of any measures broadening TCUP would significantly open the aperture of Compassionate Cultivation, a Man­chaca-based business that's one of Texas' three medical cannabis dispensaries. "We're hoping that the state sees the lives that we're changing and will step up the program, most importantly to include people with other conditions," offers CEO Morris Denton. "Science proves the efficacy of this medicine for other conditions."

Compassionate Cultivation grows low-THC cannabis at its facility, just south of Austin, and scientifically processes it into purified, high-quality CBD medications that are overseen by the company's chief medical officer, a board-certified pediatric neurologist, and a seven-member medical board. With a fleet of Priuses, they run deliveries over all 268,597 square miles of the Lone Star State – at a financial loss – to serve over 500 patients suffering from a form of epilepsy that conventional medicine doesn't effectively abate. As such, they do considerably more business than the other two state-licensed dispensaries combined.

Denton confirms that several lawmakers consulted his company while formulating new medical cannabis proposals, but he isn't stumping for any of them specifically. "We're not supporting any single legislator or bill," he says. "Our message is built around the fact that CBD is medicine and doctors ought to be in a position to determine what's in the best interest of their patient. I don't think a legislator needs to be in the middle of the doctor-patient relationship."

Texas' hard line on marijuana sets it apart from most of the U.S., where decriminalization, medical use of cannabis, and increasingly full recreational legalization are becoming the norm.

Hemp Is Happening

On April 23, the Texas House of Repre­sentatives overwhelmingly approved a bill that would legalize the production of hemp. The plant, a cousin of marijuana containing insignificant levels of the psychoactive element THC, boasts a plethora of industrial, medical, and dietary uses. Upon passage in the Senate, the measure would allow Texas farmers to grow hemp for the first time since the plant's unceremonious prohibition in 1970.

HB 1325, introduced by Rep. Tracy King, D-Batesville, looks to establish regulations to grow, manufacture, and sell hemp commercially in Texas. The door to its passage was opened by – and you're reading this right – U.S. Senate Majority Leader Mitch McConnell, R-Ky., who introduced the Hemp Farming Act of 2018 to remove the plant from the federal government's list of controlled substances. "Hemp has extraordinary political momentum behind it," says Jax Finkel, executive director of Texas NORML, a cannabis law reform group. "McConnell's now making it a campaign item for himself, and I think we're seeing Texas legislators getting behind it for the same reason."

That reason is the money it would certainly generate. "We may not see another new cash crop like this for decades. It would be a huge boon for Texas farmers, manufacturers, and entrepreneurs," American Hemp Campaign Chair Shawn Hauser, who testified in front of the Texas House Committee on Agriculture and Livestock in April, noted in a statement.

Among the loudest proponents of hemp in recent months? Agriculture Commis­sion­er Sid Miller, who counterbalances this enthusiasm by insulting "potheads" wanting marijuana reform. "It is time to finally end the ban on industrial hemp and free Texas farmers to produce this valuable commodity," the Republican stated in a Decem­ber press release.

While hemp crops get processed into health foods, clothing, lotions, building materials, and plastic alternatives, trending public demand dictates that much of it will be used to make CBD oil – consumed to relieve pain, inflammation, anxiety, and insomnia. Currently, CBD's technically illegal in Texas, but it's so universally unenforced that corner stores sell cannabidiol candies and juice bars offer it as an add-on. Last month, Willie Nelson expanded his line of CBD-infused coffee and tinctures, whose packaging advertises being sourced from "American-grown hemp." Maybe next year, it'll read: "Texas-grown hemp."

Let's Be Civil (Not Criminal)

In Texas, getting busted with less than 2 ounces of marijuana counts as a class B misdemeanor, punishable by up to 180 days in jail and a fine reaching $2,000. Possession of 2 to 4 ounces ramps up to a class A charge, which could cost you $4,000 and up to a year in the clink. Get caught holding more than that, and you're facing a felony.

Several Texas lawmakers this session are pushing proposals deemed "B-to-Cs" – meaning a simple possession charge would be downgraded to a class C misdemeanor, a civil matter that doesn't mar the offender's record with a drug conviction that can limit access to jobs, housing, student loans, or open-carry gun permits. Austin, the stoner's Lone Star oasis, already enjoys this lenience: In 2017, the Travis County Com­mis­sioners Court approved a proposal allowing first-time offenders holding less than 2 ounces to take a diversion class and pay a $45 fine instead of going through the court system.

Rep. Joe Moody, D-El Paso, works the House floor as his HB 63 decriminalization bill moves forward to floor debate. (Photo by John Anderson)

HB 63 by former prosecutor Rep. Joe Moody, D-El Paso, originally defined possession of less than an ounce as a civil infraction with up to a $250 ticket until the third offense, when it becomes a class C misdemeanor. The bill, which Moody has carried without success in past sessions, was passed in amended form as a B-to-C measure by the full House on Monday (April 29) in a 98-43 vote, with more than two dozen GOP members joining the united Democratic caucus. Moody's El Paso colleague, Sen. José Rodríguez, is carrying a roughly identical Senate proposal with SB 156, but on Tuesday Lt. Gov Dan Patrick announced via tweet that the bill "is dead in the Texas Senate." Eight other bills aimed at reducing cannabis penalties have been filed: seven from Democrats and one from a Republican.

Try to Concentrate

The popularity of THC vape pens, especially amongst millennial tokers, has surged over the last few years; they're clean and discreet and easy to obtain in Austin, with long-lasting 1-gram cartridges generally retailing on the black market for $35-60. Unfortunately, in Texas they carry almost the exact same legal penalties as heroin. Possession of less than a single gram of marijuana extract is a state jail felony with a penalty starting at 180 days, plus a $10,000 fine – the same as holding 5 ounces of marijuana flower. One to 4 grams can get you locked up for 2 to 10 years. Hash, tinctures, and edibles carry the same punishment. Texas' sentencing disparity between marijuana flower and extract remains painfully reminiscent of the radically unequal penalties for powder and rock forms of cocaine before 2010's federal Fair Sentencing Act.

Freshman Sen. Nathan Johnson, D-Dal­las, seeks to end that sentencing inequity with SB 760, which would have concentrates carry the same penalties as equivalent amounts of marijuana flower. The bill also re-envisions how concentrates are weighed. Many remember the story of Round Rock teen Jacob Lavoro, who in 2014 faced life in prison for selling weed brownies because the charge was based on the aggregate weight of the edibles, not the marijuana added to them. "SB 760 addresses that specifically, by making it clear that you can't charge somebody by the weight of what [their] substance is in. If you're going to charge them, you've got to observe the actual amount of the substance that's incorporated into the product," explains Johnson. "That's an area where the law leads to absurd ends."

Johnson, who has also authored a B-to-C decriminalization measure as well as a resolution/bill combo that would end automatic driver's license suspensions for individuals convicted of drug-related offenses, has not yet found considerable support for his concentrates bill. "I don't have people lining up behind me right now, but session's not over and we're hopeful," he said.

In the House, Rep. Terry Canales, D-Edin­burg, has also filed two measures intended to de-escalate inordinate concentrate penalties, but neither has escaped the House committee, which NORML's Finkel calls "very problematic." "Many patients take their medicine in the form of a concentrate, whether it's edible, sublingual, tincture, or topical," Finkel notes. "It's a very important conversation; however, it does not seem to have much traction at the Legislature."

Lt. Gov. Dan Patrick pronounced Joe Moody's HB 63 decriminalization bill dead on arrival in the Senate on Tuesday, but the effort has bipartisan backing, including cautious support from Gov. Greg Abbott.

Dan Patrick Fears the Reefer

Here in Texas, the lieutenant governor holds disproportionate power as the presiding officer of the Senate; that's why cannabis reform advocates started sweating bullets in March, when Lt. Gov. Dan Patrick's spokesperson Alejandro Garcia told The Texas Tribune that his boss is "strongly opposed to weakening any laws against marijuana [and] remains wary of the various medicinal-use proposals that could become a vehicle for expanding access to this drug."

The latter half of that sentence reeks of paranoia, given that few recreational cannabis users would want some of the less-than-1%-THC product that's currently legal for compassionate use. Nonetheless, Finkel said the statement "had a chilling effect." Her organization disseminated a petition asking Patrick to reconsider his position on the issue. In a meeting with Patrick's staff – along with doctors, patients, and other stakeholders – Finkel says she delivered those signatures with 600 pages of relevant medical information.

"He's skeptical, but his staff says he's very data-driven, so we're providing him with all the data we can on what he's voicing his concern about," she explains. "Hope­fully, if we can get these bills over with a substantive majority [of House votes] and he has all that information, it will help."

Hunter White of Republicans Against Marijuana Prohibition calls Patrick's comments "worrying," but points out that a successful cannabis reform bill would likely originate in the House anyway. "This just means we aren't going to see anything coming from the Senate first. It's usually a Democrat [like Rodríguez] who authors the bills in the Senate, and it's a cold day in hell when a piece of Democratic legislation passes in Dan Patrick's kingdom," says White.

"It's not the end of the world. The gov­ernor still supports [marijuana reform] and he has more influence on the state overall, so I think that's going to counteract." Indeed, Gov. Greg Abbott has, both in debates and in interviews, spoken with cautious optimism about reducing penalties for possessing small amounts of marijuana.

An Increasingly Bipartisan Effort

"Does supporting cannabis reform jeopardize a Republican politician's electability in Texas?" I asked White, whose nonprofit national political caucus counts Texas as its largest chapter.

"It depends on where they're located," he replied. "Overall, the Republican Party is in favor of reform. The planks we got passed in the Texas Republican Party platform – decriminalization, industrial hemp, and expansion of the state's medical program – were passed by margins of 79-83%, and those delegates are hardcore Republicans. That tells you that the party bulwark is in support."

White went on to explain that Republican legislators representing rural districts – where county sheriffs, prosecutors, and judges are among the more powerful politicians – may be reticent to trumpet reform compared to their colleagues in urban areas. "As a whole, the state Republican Party is in support," he concluded. "They're not willing to lead the charge, but they will sign on."

Of the 59 cannabis bills filed by 47 lawmakers this session, the majority were authored by Democrats. Still, many of them feature Republican co-sponsors. White says that in the years since RAMP was founded in 2014 (by octogenarian and veteran Repub­lican activist Ann Lee), Texas' current legislative session has been, by far, their busiest, promoting bills that mirror their caucus' mission. He believes marijuana reform jibes with the Texas ethos.

"Texas is a big 'individual liberty, personal responsibility' state. A lot of Republicans will say that, especially young Republicans and Libertarian-leaning Republicans," he offered. "I think Texas also has this attitude about agriculture, industry, and 'pulling yourself up by your bootstraps,' and we're seeing a lot of other states do that. People want a chance to strike it rich in this industry. They want to build their fortune. They don't want to have to leave the state, and we have all the land in the world we could want for it. With Texas being as cash-strapped as we are, as California's raking in $6 billion in tax revenue and another $15 billion in economic growth, we're not going to be able to keep ignoring that."