New Texas law legalizing hemp causes local enforcement haze

A new law has prompted some prosecutors to dismiss marijuana cases unless certain tests are provided. In response, local law-enforcement agencies have developed inconsistent enforcement policies.nn*Leadership directed officers to contact VICE unit in cases with suspected felony amounts

A new law has prompted some prosecutors to dismiss marijuana cases unless certain tests are provided. In response, local law-enforcement agencies have developed inconsistent enforcement policies.nn*Leadership directed officers to contact VICE unit in cases with suspected felony amounts

Image description
Going Green
Image description
Budding Knowledge
A new state law that took effect in June intended to help Texas farmers produce industrial hemp has taken local law-enforcement agencies by surprise, officials said.

Hemp is grown from a strain of the cannabis plant and contains less than 1% of the psychoactive element tetrahydrocannabinol, or THC. It is used to make fabrics, body care products, food and plastics. Marijuana contains between 3% and 15% THC, according to research published by Biological Psychiatry.

Previously, law-enforcement agencies and prosecutors relied on tests of suspected marijuana to prove the presence of THC, officials said. Now, some prosecutors—including in Travis County—require tests that prove the concentration of THC in a sample is above 0.3%, the new legal threshold.

“There was no such thing as hemp before the bill passed,” Travis County Attorney David Escamilla said. “All of it was illegal.”

Only a few private labs around the country offer this type of testing.

A spokesperson for the Texas Department of Public Safety said the department estimates it will cost $8.5 million for the necessary resources to implement the new law.

Travis County District Attorney Margaret Moore and County Attorney David Escamilla have both said they will not accept marijuana-related cases without lab results. In response, local law-enforcement agencies have instituted inconsistent policies regarding the enforcement of laws related to marijuana, which remains illegal.

“We kind of have our hands tied for the misdemeanor, and even for the felony, cases,” Travis County Sheriff Sally Hernandez said.

The Austin Police Department is working to gain access to testing that is more affordable, Chief of Staff Troy Gay said. But some council members question whether tax dollars should be spent to prosecute low-level offenses.

“[T]he purpose of this bill was not essentially to be a quasi-decriminalization,” said Hunter White, communications director of the Houston-based organization Republicans Against Marijuana Prohibition. “That’s just an unintended side effect.”

Law and disorder

After the law took effect June 10, Moore and Escamilla announced their offices would not accept marijuana cases unless accompanied by a test proving the THC concentration is above the legal limit.

“It’s an ongoing problem, and we continue to address it the best we can,” Moore said.

Her office handles felonies, which pertain to larger amounts of marijuana, and has recommended that law enforcement consult with her office on a case-by-case basis.

“At this point, there has not been a case that has been sent for testing because of the expense and the lack of budget to pay for [it],” she said.

Between June 10, when the law took effect, and Sept. 19, law-enforcement agencies filed 125 marijuana- or THC-related felony cases with Moore’s office; of those, 103 were dismissed, and the remaining 22 are pending, according to her office.

Informed that local prosecutors would generally not accept cases, law-enforcement agencies had to determine their own policies.

APD continues to issue citations and make arrests for marijuana charges, Gay said, even though those charges will not be prosecuted unless testing is conducted.

“We believe that in the urban environment that we are in, if we were not to take action, that we would see an increase in the consumption and the use [of marijuana],” Gay said, adding that crime—including violent crime—might also potentially rise.

APD estimates it will be able to test for THC concentration in the next six to 12 months, Gay said. Because the statute of limitations for most marijuana-related charges is two years, this allows for such charges to be prosecuted in the future.

The county sheriff’s office, however, directed its staff in a July 5 memo not to issue citations or arrests for marijuana-related misdemeanors.

“If the county attorney is not going to prosecute the cases without a lab report … our efforts and our resources need to be focused on other crimes that are going to be prosecuted,” Hernandez said.

Because of these policies, Austinites can receive different treatment for the same offense depending on where they are stopped and by whom.

In a July 18 letter to prosecutors around Texas, the legislative leadership—Gov. Greg Abbott, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen and Attorney General Ken Paxton—defended the new law.

But local officials and advocates for marijuana reform criticized  lawmakers for sowing confusion.

“This was not some kind of unforeseen occurrence,” said Jax Finkel, executive director of the Texas chapter of the National Organization for the Reform of Marijuana Laws. She added that legislators heard testimony about the impact this law would have on already overburdened labs.

“It is unfortunate, what comes from the Capitol, they don’t always contact or take into consideration the people who are having to enforce things,” Hernandez said.

New rules

Long before June 10, efforts were underway in Travis County to divert low-level, nonviolent drug offenders from the criminal justice system.

“Travis County has not aggressively prosecuted marijuana cases for ages,” Escamilla said. “We’re all about diversion.”

The Legislature passed a law in 2007 known as “cite and release,” allowing law enforcement to issue citations for certain eligible misdemeanors—including marijuana possession—rather than make arrests.

Individuals who are cited avoid a night in jail and are told to appear in court at a future date to go through an abbreviated booking process.

Travis County implemented this policy; the Commissioners Court amended it in 2012 to allow those who had received citations to take a class to avoid an arrest record.

More recently, in June 2018, Austin City Council passed two “Freedom City” ordinances, one of which was intended to reduce racial disparities in discretionary arrests—in cases eligible for a citation.

Although federal data shows similar rates of marijuana use across racial groups, in 2017 black residents comprised 32% of discretionary arrests for low-level marijuana possession in Austin despite comprising less than 8% of the population, per the ordinance.

Between Jan. 1 and June 30, APD made 98 discretionary arrests for Class A and B misdemeanors, which include marijuana possession, according to department reports.

This represents a decrease in the use of discretionary arrests since the policies took effect—APD made 134 discretionary arrests in the first quarter of 2018 alone—but racial disparities persist. Black residents made up 44 of those 98 discretionary arrests, per the reports.

Blazing ahead

With this law in effect and the Legislature not scheduled to reconvene until January 2021, law-enforcement agencies are working to access testing that meets prosecutor standards.

APD has been awarded a grant that would cover the costs of purchasing a machine to allow for testing of THC concentration, Gay said. But Austin City Council will need to approve accepting the award.

“We have serious concerns about the use of scarce taxpayers funds for these purposes,” Mayor Pro Tem Delia Garza and Council Member Greg Casar wrote in an Aug. 22 post to the council message board.

In addition to financial concerns, advocates for marijuana reform said attitudes are changing.

A 2018 University of Texas/Texas Tribune poll found 84% of Texas voters would legalize marijuana for some uses.

“[People are] starting to realize it’s always been costly for taxpayers to subsidize putting people away for possession of a plant—and it’s only getting more costly,” Finkel said.

Advocates for reform and prosecutors agree that more change is likely.

“I think it’s a policy issue that is just starting out,” Escamilla said.
By Emma Freer
Emma Freer began covering Central Austin for Community Impact Newspaper in 2017. Her beat includes the Travis County Commissioners Court and local business news. She graduated from Columbia Journalism School in 2017.


The Austin School of Fashion Design, or ASFD, relocated from North Austin to Georgetown in October. (Courtesy The Austin School of Fashion Design)
Austin School of Fashion Design moves to Georgetown and more Central Texas news

Read the latest business and community news from the Austin area.

Ahead of Election Day, Nov. 3, four Austin City Council members have asked Austin Police Chief Brian Manley for more information on the police department's plans to respond to possible protests. (John Cox/Community Impact Newspaper)
Austin City Council members ask police to detail response to possible Election Day protests

The four council members said protests from the spring represented "a failure to keep people safe" and asked Chief Brian Manley for more information to how police would respond to potential protests around Nov. 3.

After a significant drop soon after the onset of COVID-19, home sales nationally have risen in the past few months. Austin has followed the same trend, but in a more pronounced manner. (Jack Flagler/Community Impact Newspaper)
Austin's economy is crawling slowly back to recovery. So why is the housing market booming?

Low interest rates, constricted supply and continued population growth have accelerated the sellers' market in Central Texas, leaving 26% fewer homes on the market this September than there were at the same time last year.

Local violinist Shawn LeSure
HAAM gets funding boost from Central Health to enroll musicians of color in health coverage

Days ahead of open enrollment beginning in the health care marketplace, Travis County’s health care district and the Health Alliance for Austin Musicians struck a deal to secure increased health care coverage for the city’s musicians of color.

Less than a week ahead of the Nov. 3 Election Day, Cihan Varol, an associate professor with Sam Houston State University's Cyber Forensics Intelligence Center, shared insight on foreign election hacking and what it means for voters. (Courtesy Adobe Stock)
Q&A: Sam Houston State University cyber forensics intelligence expert talks foreign election hacking ahead of Nov. 3

"There is a very slim chance that the hackers can change vote count, but they can definitely influence people to believe that they did manipulate it," Cihan Varol said. "If election fraud is going to happen, it'll be because of disinformation."

Face coverings are not required for those entering polling places in Texas during the general election. (Courtesy Adobe Stock)
UPDATED: U.S. appeals court pauses decision voiding face covering exemption at polling places

The court temporarily stayed a district judge's decision to void an exemption to Gov. Greg Abbott's statewide face covering order concerning polling places.

The Native Plant Sale is open to reservations only through Nov. 22. (Courtesy Lady Bird Wildflower Center)
From fall festivals to 5Ks, here are 16 events to put on your calendar in Southwest Austin, Dripping Springs and around the region

From the virtual Texas Book Festival to ghost tours in Georgetown, find an event to attend this October and November.

Travis County Clerk Dana DeBeauvoir speaks to reporters Oct. 28 at the Millennium Youth Entertainment Complex in East Austin. (Jack Flagler/Community Impact Newspaper)
Travis County breaking voting records; clerk expects turnout to climb as high as 80%

More than 480,000 ballots have been cast in Travis County, surpassing the total from the 2016 presidential election.

Photo of new construction in process
South Austin developer sues city in ongoing saga to improve permitting process

An Austin developer alleged the city circumvented a state law that requires permitting to take place within 30 days.

Photo of boarded-up Sixth Street bars
With COVID-19 projections 'bleak' through Thanksgiving, Travis County keeps bars closed

Statistical models from the University of Texas show a 92% chance the pandemic is worsening, but the increase in cases and hospitalizations have leveled off in the last few days.

Slab BBQ owner Raf Robinson said the payroll protection program saved his restaurant. (Christopher Neely/Community Impact Newspaper)
'I just need to pay the rent:' Austin small businesses in survival mode are doing everything in their power to outlast the pandemic

From selling inventory to flipping their business models to changing a yoga studio into a coworking space, small business owners are trying to avoid adding their names to the growing list of locally owned Austin institutions that have shut down.