Hazy days

These days, it seems like marijuana laws are ever-changing. With an increasing number of states legalizing the recreational use of marijuana, decriminalizing its possession, and even some governors pardoning past convictions, it's becoming hard to keep up. Recent changes to Texas State law are not only becoming hard to stay up on, but they also are not entirely clear, leaving many in the lone star state hazy about the current state of cannabis.

The changes

Before last year, cannabis in Texas was illegal, except for medicinal use by those with intractable epilepsy under the Compassionate Use Act. Those with the illness were allowed to have cannabis with a low THC concentration, up to 0.5%, and a high CBD concentration of more than 10%, and only at a doctor’s direction.

In 2019, the Texas legislature passed House Bill 1325, the Hemp Farming Act, which authorizes the production, manufacture, retail sale and inspection of industrial hemp crops and products. In addition, the sale of consumable hemp products containing cannabidiol (CBD) and other edible parts of the hemp plant are now legal. In legalizing hemp production, confusion about the legality of marijuana has risen.

Illegal on paper; in practice— not so much

The Hemp Farming Act does not decriminalize marijuana. However, prosecution for possession has dramatically changed. Officially, Marijuana use and possession is illegal in Texas, save for compassionate use cases. Surprisingly, the Hemp Farming Act may have unintentionally created a loophole to escape prosecution for possession of a small amount of the plant. This shift may have the long-term effect of creating a gateway to the legalization of marijuana in Texas.

How? Let’s take a look at the difference between legal hemp and illegal marijuana. Tetrahdyrocannabinol, better known as THC, is the deciding factor. Under the Hemp Farming Act, the legal definition of marijuana changed from cannabis to cannabis which contains more than 0.3% of THC. THC is the psychoactive ingredient that gets people high. If there is less than 0.3% THC in a product, it is considered hemp.

This new definition seems clear enough. However, it creates an issue in the field for law enforcement, because there is no roadside field test to measure for 0.3% THC. Additionally, the state’s public labs do not have the equipment or a universal procedure to measure the concentration of THC.

Arrests decrease as diversion, cite and release increase.

When an officer must determine whether a person is carrying marijuana, they can still make an arrest, but the cases cannot be adjudicated until the lab results reveal if the substance was marijuana or hemp. At present, there is no quick, reliable and cost-effective way to measure THC concentration in the wild.

This grey area between the law and its enforcement has caused the state’s counties to adopt different policies in treating possession cases. The Department of Public Safety, Texas’ largest law enforcement agency, is moving away from arresting people for low-level marijuana offenses. Many law enforcement agencies have adopted cite-and-release policies for low-level possession cases. Additionally, some counties offer diversion programs that have alternative sentencing options which give people a chance to keep a marijuana charge-free criminal record.

Finding clarity

With the growing need for accurate and portable THC testing, has the technology caught up? Currently, testing for seized plant material is possible, but vape pens and edible products are more difficult to test. As early as March, a new technology for testing THC in plant and oil-based products will be available. One possible solution lawmakers are exploring is to use the Drug Enforcement Agency’s test, which indicates if a substance is above or below 1% THC. As most marijuana prosecutions involve a concentration of 12% or more, this is a viable solution. However, vape pens are another story, because they tend to contain much more THC. As the technology struggles to catch up, one issue still remains: there are thousands of misdemeanor marijuana arrests each year and a lot of testing to be done.

In the meantime, some district attorneys have dropped current cases and started refusing to accept new ones. Others have put cases on hold, while some continue to prosecute. Recently, the city of Austin has been considering halting arrests and tickets in low-level marijuana cases because of the hemp law. This initiative was created to relax the prohibition against personal use and to focus the city’s resources on prosecuting offenders with intent to sell.

Clearing the smoke

So, what is the verdict when it comes to the legality of marijuana in Texas? With technology only recently catching up to the ever-changing laws, paired with inconsistent prosecution standards across police departments, who really knows?

What we do know is, marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized hemp. Although the industry remains highly regulated, hemp sales were over one billion dollars last year and are projected to be 2.6 billion by 2022, with CBD sales expected to exceed 20 billion dollars the same year. New Texas businesses may be poised to capitalize on this booming market, and marijuana possession arrests in the state may soon go up in smoke.