Legislative Update on Hemp / Marijuana Testing:
The passing of House Bill 1325, the bill that legalized hemp in Texas, created numerous unintended consequences that are still being unveiled, even eight months later.
Initially, several prosecutors decided to no longer prosecute low-level marijuana cases because testing protocol did not support testing to distinguish between hemp and marijuana. Some cities and counties that are still prosecuting such cases are doing so at the cost of paying private labs. Over the holidays, a North Texas man was arrested and spent a month in jail for what turned out to be hemp.
Now, Texas Office of Court Administration data show marijuana prosecutions in the state have dropped by more than half. Misdemeanor marijuana cases filed in the first five months of 2019 averaged over 5,600 a month. The number of cases started to decline when Texas legalized hemp on June 10. As of November, less than 2,000 new cases were filed.
It is expected DPS will release their testing method to distinguish between hemp and marijuana in late March. The test will determine if the plant has a THC content above or below a 2% concentration. Although the hemp cutoff is 0.3%, most marijuana prosecutions involve a concentration of 12% or higher.
DPS released a letter on February 18 stating DPS will not accept and will not test misdemeanor cases. DPS does not have the appropriate funds or capacity to test the approximately 80,000 misdemeanor marijuana arrests each year in Texas. Additionally, the test is for plant material only; methods to test for oils, edibles, etc. will be ongoing in 2020.
On a related note, the Austin City Council voted unanimously to stop arresting and ticketing for most low-level marijuana possessions. The following day, Austin Police Chief Brian Manley said there were no plans to follow this and the police force will continue to enforce marijuana law.