Texas was warned its hemp law would complicate marijuana prosecutions. Lawmakers didn't listen.

Months before Texas district attorneys started dropping or delaying low-level marijuana cases, state lawmakers were told that a well-liked bill to legalize hemp was going to complicate pot prosecutions.

The warnings fell flat.

In early April, members of the Texas House Agriculture and Livestock Committee sat through two hours of testimony supporting a bill to legalize and regulate hemp and its derivatives, like CBD oil. Most of the discussion focused on farming and regulatory procedures. Near the end of the hearing, though, the Texas Department of Public Safety’s crime lab director, Brady Mills, was brought up to the microphone to address any law enforcement concerns the legislators may have overlooked.

Speaking in largely technical terms, Mills told the committee that DPS crime labs, which test suspected drugs for prosecutors across the state, did not have a way to differentiate what would become legal hemp under the bill from still illegal marijuana. He said the labs would need new equipment and time for internal reviews before they could begin testing for the difference.

Without this test, a new wrinkle was about to form for prosecutors pursuing marijuana crimes across the state. But Mills’ words aroused no concern.

“Alright,” responded the committee’s chairman, state Rep. Drew Springer, R-Muenster. “Members, any questions?”

The five other committee members sitting on the dais were silent and still, some with downcast eyes. The bill’s author, state Rep. Tracy King, D-Batesville, sat to the side, looking down with his face in his hand, as he had during Mills’ testimony. The director was dismissed, and the committee later approved the bill unanimously.

As the legislation moved through the Capitol, some questions did come up over how to ensure that Texans wouldn’t begin farming marijuana instead of hemp, but lawmakers repeatedly affirmed that the bill did not decriminalize marijuana in any way.

“This has been vetted a long time,” bill sponsor state Sen. Charles Perry, R-Lubbock said at a Senate hearing in May. “What this does not do is go down the road anywhere near — in fact, on the contrary — of legalizing marijuana.”

Largely absent from legislative discussions were concerns over the hemp law affecting the practicability of prosecuting marijuana cases unrelated to hemp farming.

Yet it wasn’t just Mills who outlined the problem prosecutors would have distinguishing hemp from marijuana. Other states and the federal government have already run into similar issues. DPS repeatedly told state budget officials the hemp bill would come with a hefty price tag for additional drug testing in marijuana cases. And a Houston crime lab employee told King’s office that without funds to allow for new lab testing, the legislation would “essentially legalize marijuana.”

The requested funds and the employee’s concern were both rejected. Perry later told The Texas Tribune that labs were trying to use the bill as a way to squeeze more money out of the Legislature.

Overall, the bill soared through the Texas Legislature with near-unanimous support and plenty of smiles and back-patting. Then, shortly after Gov. Greg Abbott signed the bill into law June 10, numerous district attorneys across the state began dropping hundreds of low-level marijuana cases and rejecting new ones without further testing — which, as Mills said, is currently nonexistent in state crime labs.

Republican state leaders chastised the prosecutors, and Perry said district attorneys halting pot prosecution, both Democrats and Republicans, are using the law as political cover to essentially legalize the drug in their districts. But the prosecutors deny that, saying the law now requires them to have more involved lab testing to prove beyond a reasonable doubt that something is pot. And the Houston crime lab employee said lawmakers should have seen this coming.

“They knew everything, including the fact that there was going to be a possibility that prosecution was not going to be able to move forward,” said Ramit Plushnick-Masti, a spokesperson for the Houston Forensic Science Center, which runs the crime lab used by Houston police. “Nobody wanted to hear that.”

Uninvolved prosecutors

Texas’ House Bill 1325 was filed in reaction to the U.S. farm bill passed last year. That bill legalized hemp on a federal level and allowed for states to submit regulatory procedures for growing, shipping and selling hemp. That is the crux of HB 1325, but it also mirrored the federal bill by changing the state’s legal definition of marijuana from cannabis to cannabis that contains more than 0.3% of tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.

Before the law change, crime labs testing for marijuana simply checked for the presence of cannabinoids to designate something as cannabis and, therefore, marijuana. Measuring the level of THC requires different testing, currently unavailable in state-run labs. The definition change also cast doubt over circumstantial evidence, like the substance’s smell or look, which was often the only type of evidence presented in low-level marijuana cases.

Although the bill changed the Texas statute that defines illegal drugs, it didn’t get the attention of many people who work in the criminal justice system. Some officials have said that’s because it was moving through agricultural committees, which prosecutors don’t tend to follow.

“We did not hear a loud local voice from crime labs or the district attorney association, probably because it’s an ag bill — I assume it didn’t hit their radar,” Perry told the Tribune.

The district attorney’s office in Harris County echoed that point, stating it found out the definition of marijuana had changed from its local crime lab days after the law went into effect. Some knew and stayed silent. Other prosecutors and a spokesman for the Texas District and County Attorneys Association, which often lobbies for prosecutors in criminal justice committee hearings, said they knew the statute changed but didn’t realize labs were unable to test for the difference until the bill was passed. The association posted an advisory for prosecutors about new complications surrounding marijuana cases two weeks after Abbott signed the hemp bill.

“In hindsight, if it had been explained to us or some of the groups that represent law enforcement at the Capitol who are more experienced in effecting change there, it’s possible we might have been able to get the attention of people who could have done something about it,” said Shannon Edmonds, director of governmental relations for the association.

Cash for the crime labs

Although the lack of legislative involvement from prosecutors may have contributed to the bill moving so smoothly through the Legislature, the crime labs had been raising the alarm. But their arguments that new testing would be needed to distinguish between marijuana and hemp came with requests for money, which were rejected.

Throughout the five-month legislative session, DPS submitted multiple cost estimates for HB 1325 to the Legislative Budget Board. Agencies affected by legislation regularly submit estimates to the board, which then analyzes and prepares for lawmakers written estimates of how much money the government can lose or gain from bills. This fiscal note is updated as the bill changes.

DPS submitted three estimates to the board as the bill changed in the legislative process, all of which were for millions of dollars. None of the costs were included in the fiscal notes.

The agency’s first estimate — $5.5 million for new equipment, training and about 25 new employees — focused on increased testing to differentiate between marijuana and hemp in typical criminal proceedings.

“DPS can only speculate on the volume of cases where a defendant might claim the substance for which they are arrested is actually hemp,” explains the estimate, which the Tribune obtained. “Also, DPS labs do not currently routinely test marihuana for misdemeanor charges unless the prosecutor or law enforcement officer makes a special request because it is needed for trial.”

The estimate noted that there were more than 80,000 misdemeanor marijuana arrests in Texas last year and also pointed out that measuring THC levels would take more time than previous lab tests for marijuana.

But state budget analysts excluded such requests from the fiscal note. That means the requests for money to test whether something is marijuana or hemp never made it to lawmakers reviewing the bill. A spokesperson for the Legislative Budget Board said this month that DPS estimates for marijuana tests paired with such arrests were left out because they included predictions based on ongoing trends unrelated to the bill.

The fiscal note attached to the bill did include nonspecific predictions of potential earnings from regulating hemp. The board spokesperson also noted that DPS crime lab services got a $50 million boost this legislative session. Those funds, to cover the next two years, were given to increase crime lab capacity overall by hiring more than 100 new positions and, notably, prioritize the testing of backlogged rape kits.

None of the additional $50 million was earmarked specifically for marijuana testing. Plushnick-Masti, with the Houston Forensic Science Center, said the new funds were pushed through because DPS was “already underwater” before HB 1325 complicated marijuana prosecutions. Since at least April, she spoke repeatedly with staffers for King, the bill’s author, to raise concerns about passing HB 1325 without additional funding, according to emails obtained by the Tribune.

In early May, she sent an email to emphasize that money requested by DPS in its cost estimate — and more resources for local crime labs — were imperative.

“If crime labs are unable to differentiate currently between marijuana and hemp, [HB] 1325 will essentially legalize marijuana,” she wrote.

King’s legislative director, Melissa O'Reilly, replied that budget officials had said the department's cost estimates were speculative or secondary to the bill’s intent to legalize growing and transporting hemp.

“We disagree with your characterization that HB 1325 will in any way legalize marijuana,” O'Reilly added.

King did not respond to the Tribune's questions about the hemp law or emails.

After initial confusion over what type of testing to procure and how much it would cost, a DPS spokesperson said last week that the agency will use its existing budget to establish and validate a test that can differentiate between THC levels in hemp and marijuana. The process is expected to take about six months.

What happens now?

Perry, who carried the bill through the Senate, portrayed the lack of state testing as the regular implementation phase of a law. Although he said the law did not stop or discourage marijuana prosecution, he added that there are still rules for hemp that need to be submitted and approved by the U.S. Department of Agriculture. He suggested the state or the USDA could still tweak the regulations to specify that hemp can’t be smoked, allowing for more circumstantial evidence in prosecutions. That proposal is moving through North Carolina’s legislature after that state's complications from legalizing hemp.

“We’ll see how this plays out,” Perry said. “If we come back next legislative session and find out that there are some other things that we didn’t see coming, like a lot of times ... we’ll tweak it.”

In the meantime, one question remains: With more time-consuming tests, what resources are prosecutors and local crime labs going to use on marijuana testing? Edmonds with the prosecutors association said at a training this month that without additional funds, “it’s a zero-sum game.”

“Every time you request a lab report from DPS or your local lab in a marijuana case, that’s another case that is sitting on the shelf,” he said.

Perry said that with a free-market approach, more private labs will become accredited to test cases for law enforcement, lowering the expected costs. He said prosecutors are using the hemp law as a way to skip out on prosecuting marijuana cases for political reasons, noting many urban prosecutors had already used diversion programs to prevent convictions in some low-level marijuana cases.

But in conservative Denton County, First Assistant District Attorney Jamie Beck quickly shot down suggestions that her office has stopped pursuing marijuana prosecutions because of political motivations.

“No, no — our intention is not to decriminalize or stop prosecuting marijuana cases,” she said.

The county stopped filing new misdemeanor marijuana cases after the law changed unless the arresting agency can also provide a lab report showing the substance has a THC level over 0.3%. Felony cases are being evaluated on a case-by-case basis, she said. But since government labs can’t perform those tests yet, she said the law enforcement agencies will have to pay for testing by shipping samples off to private labs.

“Police agencies will spend for felonies,” she said. “We have a feeling that they won’t on the lower level.”