The times they are a-changin’, when it comes to hemp and hemp byproducts in the state of Texas.
You’ve probably heard already that as of the end of the most recent legislative session, a new law went into effect that changes the legal status of hemp and CBD products for Texans. House Bill 1325 legalized most forms of hemp and hemp-related products, effective immediately as of June 10th, 2019. This is a big change for Texas and will have widespread impact on how cases that involve THC are tested and tried—and it’s happening immediately, without a transition period. Right now, there are few regulatory processes in place statewide, and methods for testing have not been satisfactorily established, so it may be a bumpy road before things regarding these substances settle down again.
Here are a few things Texas residents should be aware of regarding this new legislation:
What Is Legal?
According to House Bill 1325, hemp can now be grown as an industrial crop in Texas. In addition, hemp-based products may be legally sold in Texas stores, provided that the product contains less than 0.3% THC. This includes CBD products, like gels, lotions, oils, and more, that meet the same quality standards as other hemp products. The Department of Agriculture and Department of State Health Services will regulate these products as soon as the regulations can be written, but as yet these regulations do not exist. In future, we can expect to see significant testing and labeling restrictions, and other regulations that ensure the safety of the consumer.
What Isn’t?
It is essential to note that marijuana is still illegal in the state of Texas. The distinction drawn between hemp and marijuana in HB 1325 is that while both originate from the cannabis plant, hemp has a THC content of less than 0.3%, and marijuana constitutes any substance or product with a higher THC content. THC is the psychoactive component of the plant that causes a high, and at concentrations higher than 0.3% are considered a controlled substance.
So, don’t be fooled: just because hemp is now legal in Texas doesn’t mean that all forms of the cannabis plant are up for grabs.
Testing
One of the major issues associated with this change is that most state crime labs in Texas are not equipped to test for fine differences at lower levels of concentration. In order to prove possession of a contraband substance, one must prove that the potency of the substance in question is higher than the legal amount—and most of the crime labs in Texas will have to purchase new equipment to be able to do so. This process could take between four and twelve months. Because of this, several District and County Attorney offices are not going to prosecute possession of marijuana cases where the arrest occurred on or after June 10, 2019.
How This Impacts You and Me
The most immediate takeaway from these new laws and testing difficulties is that prosecutors are dropping hundreds of low-level marijuana cases, due to an inability to test whether the substance is marijuana or hemp. In the weeks after this measure was passed, the Tarrant County District Attorney’s office alone dismissed more than 235 misdemeanor cases.
Travis County has dropped 32 felony and 61 misdemeanor marijuana and THC cases, as of July 9th, and has even instructed law enforcement agencies, “not to file marijuana or THC felony cases without consulting with the DA’s Office first to determine whether the necessary lab testing can be obtained,” according to Travis County District Attorney Margaret Moore.
The County Attorney’s office in Williamson County also indicated that it would not prosecute possession of marijuana cases.
Please note, that this does NOT mean that marijuana is legal in Texas. Rather, the prosecutors are taking a pragmatic approach because they cannot prove the material is marijuana based upon the current definition. Once local police labs are up and running with new equipment that allow for the testing of THC concentration down to .3%, they will likely return to enforcing the possession laws, unless of course, the legislature passes new laws that legalize marijuana.
The other thing to note is that right now, the odor of marijuana is still probable cause for law enforcement to search your car. While there are legal challenges being made because one cannot tell the difference between burnt marijuana and burnt hemp – they come from the same plant – until the appellate courts in Texas weigh in, the current law says that the odor is enough for law enforcement to search a vehicle.
In conclusion, Texas residents should be aware of the change in legal status for hemp, CBD, and substances that involve hemp or CBD. Official processes are likely to evolve statewide as all parties become more familiar with this new legislation and what it entails. Going forward, this new law will require careful evaluation of practices by law enforcement officers and prosecutors alike.