Despite calls from Republican leadership in the state, the Denton County District Attorney’s Office will move ahead as planned.
Following the passage of House Bill 1325 on June 10, district attorneys across Texas said they won’t be able to prosecute most low-level marijuana possession cases.
A letter critical of that stance was reportedly sent to each district attorney in Texas on Thursday.
The letter — signed by Gov. Greg Abbott, Lt. Gov. Dan Patrick, Speaker of the House Dennis Bonnen and Attorney General Ken Paxton — explained at length that marijuana was not decriminalized by HB 1325 and that prosecution should continue as normal.
It defined hemp as cannabis with a concentration of tetrahydrocannabinol (THC, the active chemical in marijuana that causes one to get high), of 0.3% or lower. Anything higher would be classified as marijuana and would still be considered illegal.
The letter came a day after the Denton Record-Chronicle published an article explaining the move by district attorneys. Jeff Fleming, chief of the intake and grand jury division for the Denton County District Attorney’s Office, said the $600 price tag on many tests to determine the concentration of cannabis will keep some cases out of courts.
As for the letter sent out Thursday: “It does not change our position at all,” Fleming said.
He said there weren’t any arguments in the letter the district attorney’s office hadn’t already heard and considered.
“It’s not just that it’s going to cost a lot of money, we don’t have the money,” he said.
Without state funding to pay for additional tests, officials said HB 1325 essentially results in an unfunded mandate that many districts can’t meet.
The letter from state leaders claimed that “as more companies enter the testing marketplace, the costs of the tests will certainly decline,” but based on what he’s seen, Fleming doesn’t expect the price of those tests to be going down anytime soon.
At the most recent meeting of the Texas Forensic Science Commission, presenters painted a complex picture of this issue.
“Fifty percent of our THC cases, best guess, are edibles,” Chance Cline, coordinator of the chemistry program for the Texas Department of Public Safety, said during the meeting. “Every one of these, the question is, ‘Is it a hemp product or is it THC?’ and the answer is only derived through quantitation.”
The law is clear that hemp products can’t be made to be smoked, but that won’t necessarily stop consumers.
“You can actually wrap hemp in a joint,” Fleming said.
Without a laboratory test to confirm the content of said joint is more than 0.3% THC, the case would be too difficult to prosecute.
In a memo obtained by the Texas Tribune, a member of the El Paso County District Attorney’s office said the burden of proof that a substance is hemp and not marijuana could rest with the defendant.
“That’s not usually how we operate,” Fleming said. “If we’re going to do the accusing, we should prove it.”
He stipulated that courts could decide differently down the road.
Overall, he pointed out that HB 1325 doesn’t deal much with consumers. It addresses license holders, transporters, growers and others, but largely ignores how a consumer is affected.
“At the end of the day, we now have to prove the percentage of THC,” Fleming said.