A 36-year-old Axtell woman snuffed out a marijuana cigarette in her car before she saw emergency lights in her rear-view mirror Tuesday morning.
A state trooper approached her car, smelled the marijuana and arrested her on a Class B misdemeanor charge for possession of marijuana.
“I had just a little bit on me and it was definitely less than two ounces,” said the woman, who spoke to the Tribune-Herald on a condition of anonymity. “I spent all day in jail. I admit I was smoking it, gave it to the officer, but now I have to wait, maybe up to two years to see if I can do anything about this.”
McLennan County District Attorney Barry Johnson is one of dozens of district attorneys in Texas to put a hold on all low-level marijuana possession offenses last month while the state of Texas sorts through testing procedures used to distinguish between marijuana and hemp.
House Bill 1325, which became law on June 10, makes it lawful for hemp to be grown as a crop.
Hemp is defined as Cannabis sativa L that has a concentration of tetrahydrocannabinol, or THC, of less than 0.3 percent. Marijuana has a THC of more than 0.3 percent.
According to the American Farm Bureau Federation, hemp is drought-tolerant and can be used to produce food, beverages, cosmetics, personal care products, nutritional supplements, textiles, paper, construction and insulation materials, super capacitor batteries and automotive products.
Although hemp and marijuana are strikingly similar in appearance, Texas Farm Bureau spokesman Gene Hall said the true difference is the THC level.
“The traditional use for hemp was for rope and it was used a lot in the sailing industry for rigging. It can be used in a very high-quality partial board for building materials and it is a high oil producing plant,” Hall said. “Hemp and marijuana are very similar, but sort of a chemical test, I am not sure how you could tell a difference between the cannabis family.”
Since the change in the law, local law enforcement agencies have changed their patrol policies in arresting people for possessing less the four ounces of marijuana.
According to state law, possession of any amount of marijuana is illegal. Anything less than two ounces is a Class B misdemeanor and carries a maximum penalty of 180 days in jail and a fine of up to $2,000. Possession of more than four ounces is a felony and carries a maximum penalty of a year in jail and a $4,000 fine.
Possessing concentrates such as hash oil is a felony and can result in up to two years in state prison.
Waco police Sgt. W. Patrick Swanton said the department changed its policy after Johnson sent out a memo to agencies suggesting they not arrest people for misdemeanor marijuana possession cases without testing. Since July 10, Waco officers have arrested six people for misdemeanor marijuana possession, but none since July 26.
“Obviously we got that from the DA, and the chiefs discussed policy we have in the department, what direction we think we need to go with it and legally what we are bound to do,” Swanton said. “Once they got their collective heads together, the decision they came up with was not to arrest. On Class B misdemeanor possession of marijuana offense, take the dope, make a report and we will look at it at another time when testing becomes available.”
Eighteen people were arrested on misdemeanor marijuana offenses and booked into McLennan County Jail between July 11 and Aug. 6, according to jail records.
The Texas Department of Public Safety accounted for seven of those arrests, Waco police six, McLennan County Sheriff’s Office three, and the Beverly Hills and Bruceville-Eddy police departments one each.
McLennan County records show more than 400 people were arrested on misdemeanor marijuana charges in 2018.
Chief Deputy David Kilcrease said the McLennan County Sheriff’s Office has not changed its policy and will continue to make arrests for misdemeanor marijuana possession.
“Gov. Greg Abbott also sent a letter encouraging the prosecution of misdemeanor marijuana charges as it is still illegal in the state of Texas to possess it,” Kilcrease said. “We will continue to enforce state law.”
The Texas Tribune cited an internal memo in a report last week indicating a change in policy for the Department of Public Safety. “Departmental personnel are expected to continue enforcing marijuana related offenses,” the memo states. “However, effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”
Local authorities said regardless of the reason for a lawful traffic stop or search of a person, the smell or sight of marijuana is probable cause to search a person or property.
The Axtell woman was cooperative with the DPS trooper during her stop. She was released from jail the following day on a personal recognizance bond. But she is still in limbo for up to two years, the statue of limitations for the misdemeanor charge.
Tom Needham, McLennan County executive assistant district attorney, said the county is waiting for testing equipment to be available to local law enforcement to be able to test the THC levels. He said it may take six months or longer to allow for that testing. Until then, cases involving suspected marijuana amounts under four ounces will not be prosecuted locally.
“I am not aware of any cases for less than four ounces that have been sent over by anyone right now, but if they do send us one on a simple misdemeanor, we are not going to be able to prosecute them,” Needham said. “We can just put them on hold and sit here and wait for at least six months until testing becomes available.
“But then, we’ll have to see how big of a backlog comes from that with the testing labs.”