When Austin voters overwhelmingly approved a ballot measure in 2022 that eliminated local enforcement of low-level marijuana offenses, they couldn’t have foreseen the recent partnership between the police and the Texas Department of Public Safety. Although a city spokesperson said that both agencies won’t arrest people in Travis County solely for possession, some justice advocates worry that searches on suspicion can lead to additional charges. A bill just passed in the Texas House of Representatives would ease some of those anxieties by ensuring statewide that no one is taken into custody for carrying less than an ounce of cannabis flower or concentrates.
Filed by Rep. Joe Moody, D-El Paso, House Bill 218 reduces penalties for simple possession of marijuana (“marihuana,” per the divine wisdom of the Texas Lege), instructs officers to quit making arrests for personal amounts and related drug paraphernalia, and provides a framework for expunging past charges. Several publications have referred to HB 218 as a decriminalization bill, though having recreational or nonmedical marijuana would remain a criminal offense.
“Under House Bill 218, possessing a small amount of cannabis is still illegal. We’re just addressing it in a smarter way than we do now,” Moody said on the House floor before final passage. “What this will do is free up hundreds of millions of dollars that currently go into enforcement, keep police on the street working more serious cases instead of processing these petty arrests, and make sure those who would currently end up with a record that interferes with jobs, school, housing, and licensure come out of the process without any permanent stigma.”
Outside of counties that have decriminalized pot, current state law holds that possession of up to 2 ounces of cannabis – even just a half-gram joint – is a class B misdemeanor punishable by up to 180 days in jail and/or a fine of up to $2,000. Carrying any amount of cannabis concentrate or extracted oil is a felony, resulting in a minimum jail term of between 180 days and two years. HB 218 would alter the law to make possession of up to 1 ounce of either form a class C misdemeanor, meaning no time in the slammer and a maximum $500 citation.
“Texas is still treating simple possession of marijuana the same as a DWI, terroristic threats, and indecent exposure,” Austin criminal defense lawyer Kevin Bennett said of other crimes listed as class B misdemeanors. “If you’re not a U.S. citizen, a drug charge could possibly get you deported … Should someone be separated from their parents or parents from their kids for possession of marijuana, especially if you just happen to live in the wrong part of Texas, the wrong county?”
After being unanimously voted out of the Committee on Criminal Jurisprudence in March, the House passed HB 218 on third reading with bipartisan support (87 yeas to 59 nays) on April 27. But as Moody pointed out, this concept has already passed twice in the lower chamber during previous sessions. Its companion in the Senate, SB 967 by Sen. Nathan Johnson, D-Dallas, was referred to the State Affairs Committee in March and hasn’t moved since. Lt. Gov. Dan Patrick will likely block its passage again, despite public polling showing that a majority of Texans support less strict marijuana laws.
“The House’s continued support for penalty reduction is heartening,” said Texas NORML Executive Director Jax James. “We do have more work to do as it heads to the Senate, so I encourage my fellow Texans to reach out to their senators to encourage their backing as it moves through the legislative process.”
This article appears in May 12 • 2023.