Barry Johnson letter regarding HB 1325

McLennan County District Attorney Barry Johnson sent this letter to law enforcement agencies Wednesday, informing them the DA’s office would not accept misdemeanor marijuana possession cases for prosecution until tests to determine THC concentration can be conducted.

Because of unintended consequences of a new law legalizing hemp, McLennan County prosecutors and others across the state are directing police agencies not to arrest offenders for low-level marijuana possession without further testing.

The law did not decriminalize possession of small amounts of marijuana, but it legalized hemp and hemp-derived products, including CBD oil.

However, a ripple effect from the law has made it difficult for law enforcement and prosecutors to tell with legal certainty if a substance is marijuana or hemp without expensive testing that is currently unavailable, McLennan County District Attorney Barry Johnson said.

House Bill 1325, which took effect June 10, created a Texas Hemp Protection Plan and allows hemp to be grown as a crop. The new law, among other things, changes the definition of marijuana to Cannabis sativa L that is not hemp. Hemp is now defined as Cannabis sativa L that has a concentration of tetrahydrocannabinol, or THC, of less than .3%.

“To prove a possession of marihuana (sic) case beyond a reasonable doubt from June 10, 2019, forward will require a lab test to determine the THC content to prove it is not hemp,” Johnson wrote to McLennan County law enforcement agencies in a letter sent out Wednesday. “The DPS laboratory at this time is not set up to do this type of testing. We do not have an exact time on when this testing will be available.”

Johnson said the new legislation will require his office to change procedures. He informed the agencies his office no longer will accept prosecution for any marijuana possession cases of less than 4 ounces without a lab test for THC concentration.

“We will continue to review felony level cases that are clearly over the felony limit and will decide how to proceed with these on a case-by-case basis,” Johnson wrote.

Johnson recommended to local law enforcement agencies that they do not make arrests on marijuana possession cases of less than 4 ounces. Instead, he suggests they “fully investigate” the case and hold the evidence until lab tests can be conducted.

“Warrants can then be obtained if appropriate and the arrest can be made at that time,” Johnson’s letter states.

Johnson said he has conferred with prosecutors from around the state, sought direction from the McLennan County District and County Attorneys Association and met with local police agencies about the effects of the new law. He said initial estimates to bring state labs up to speed to comply with the new testing requirements are about $2 million, which include new machines to test THC concentration and additional staffing.

It could be from six months to a year before the state labs are ready to do THC concentration testing, Johnson said.

Unlike prosecutors in Harris, Tarrant and Travis counties, Johnson’s first assistant, Nelson Barnes, said there are no plans to dismiss marijuana cases because the ones filed before June 10 can be prosecuted under the old law and will not require additional testing.

In 2018, agencies in McLennan County made nearly 400 arrests for misdemeanor marijuana possession, according to county records. It is illegal to possess or cultivate any amount of marijuana in Texas, and penalties vary based on amounts, starting at Class B misdemeanors to felony levels for possession of more than 4 ounces. Drug offenses committed in drug-free zones, including near schools, can enhance charges.

In the past legislative session, the House passed a bill that would have decreased possession of a small amount of marijuana to a Class C misdemeanor, the equivalent of a speeding ticket. However, Lt. Gov. Dan Patrick did not allow the Senate to bring the measure up for vote despite widespread belief that it would have passed and that Gov. Greg Abbott would have signed it.

“We are going to follow the law here in this office,” Johnson said. “Personally, I agree with Gov. Abbott, and it was his position that those in possession of a small amount of marijuana should be a Class C misdemeanor. Personally, I agree with that, but that is just me personally. We are going to follow the law and continue to prosecute those cases as Class B misdemeanors or felonies, depending on where they fall.

“But ironically, even if it had passed, we would still have this huge problem we have now because you still have to send that small amount off for testing, which is outrageously expensive and takes a super long time.”

Last year, it cost McLennan County about $3.5 million to jail those suspected of misdemeanor marijuana possession, according to McLennan County records. That figure includes some who might have been arrested on other charges, also, but county officials were unable to separate the arrests and calculate the days each arrested individual spent in jail.

The $3.5 million is based on an average of the cost per day of housing an inmate in the county jail and in the Jack Harwell Detention Center, operated by LaSalle Corrections. LaSalle charges the county $65.39 per day to house an inmate, McLennan County Auditor Frances Bartlett said. But she added that the county jail daily cost is not as clear because it is calculated by dividing all jail-related costs for the 2018 fiscal year by the number of days inmates were held in the jail. That number is $63.06 per inmate per day.

Waco Assistant Police Chief Mark Norcross said Johnson and Barnes have discussed the new state law with local law enforcement, so Johnson’s letter was expected.

“This isn’t something that snuck up on us, so we’ve been having conversations about this,” Norcross said. “Chief (Ryan) Holt has been talking with Nelson Barnes in particular and Barry Johnson about the situation, so we knew they we going to come out with that policy at some point. With the inability of the labs at this point to be able to do that testing, it puts us in a situation to make adjustments until we can do that testing.”

Hewitt Police Chief Jim Devlin said his department had not received the district attorney’s memo Wednesday morning, but he was aware of the new law and has seen the response from other Texas counties.

“It is going to create a difficult situation, but you have to understand the new law dealing with hemp overrode the current, existing law that we have currently that deals with marijuana,” Devlin said. “Those laws that we have on the books weren’t changed, so that is an issue down in Austin that puts us in a very precarious position on the arrest and prosecution for possession of marijuana. I understand that there is not a measure in place per se right now to deal with this issue, but we are not the first county in Texas that has had this happen.”

The new law likely will create a new standard for patrol officers until the new law can be clarified, Devlin said. Hewitt officers make Class B marijuana possession arrests several times a month, but in most instances, other offenses are involved, he said.

“This is something we are going to have to work through and figure out what the next steps are to follow the law when there is a conflict,” he said. “There is a significant conflict between the two laws, so this is something that will have to be looked at by attorneys, the district attorney and legislators in Austin to see how we can fix this in the future.”

Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association, said reactions and the way prosecutors around the state are handling the new law vary.

“Prosecutors are handling it differently, which is their prerogative,” Edmonds said. “It depends a lot on the local resources. That is determining how most of them are going about it.”

His office put out an advisory on its website to assist prosecutors with the law change, Edmonds said.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” the association’s advisory states.

“You may have to put your marijuana cases on the same ‘waiting for lab results’ shelf as your felony DNA cases and postpone them until the labs can provide the needed evidence for prosecution,” according to the statement.

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Tribune-Herald staff writers Brooke Crum and Kristin Hoppa contributed to this report.

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