State Lawmakers Remind DAs, County Attorneys Pot is Still Illegal

Marijuana plants

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Governor Greg Abbott, Lt. Governor Dan Patrick, Speaker Dennis Bonnen, and Attorney General Ken Paxton sent a letter Thursday to all Texas District and County Attorneys regarding recently dismissed marijuana possession cases and reports that some DAs will no longer prosecute misdemeanor marijuana cases. In the letter, the four state leaders lay out how actions taken by certain DAs do not align with the passage of House Bill 1325 and represent a misunderstanding of how this law works. The leaders urge all DAs to uphold their oath and faithfully execute the law. 

“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” the letter states. “The power to change the law is legislative and rests with the Texas Legislature under the Texas Constitution. Since H.B. 1325 did not repeal the marijuana laws of Texas, as Judicial Branch Members, you should continue to enforce those laws by ‘faithfully executing the duties of the office of the [District or County Attorney], of the State of Texas, and … to the best of [your] ability preserve, protect, and defend the Constitution and laws of the United States and of this State.’”

An overview of that letter can be found here: https://gov.texas.gov/uploads/files/press/Letter_to_DAs.pdf

The letter comes following the recent announcement from district attorneys in various Texas counties, including Travis, that they would not be pursuing as many marijuana possession cases because of HB 1325, which legalized hemp.  Travis County DA Margaret Moore and others said it is too costly and difficult to determine the difference between marijuana and hemp, adding that many crime labs lack the capabilities.

In response to that, state leaders say there are multiple ways to prosecute and prove marijuana possession cases.

“Some have expressed concern that H.B. 1325 carved out hemp from the definition of a controlled substance, and defined hemp as having .3{2db634631ef8bd3f096060bc7daa4fc6677d16e616113d8c02bec6b420e3105c} or less THC concentration. H.B. 1325, §§ 1, 8, 86th Leg., R.S. (2019). Adopting this federal definition of hemp did not limit the prosecutorial options for prosecuting marijuana cases. Criminal cases may be prosecuted with lab tests or with the tried and true use of circumstantial evidence, a point some of you have already made clear in this context.5 Even before the passage of H.B. 1325, companies and labs were already developing THC concentration tests. As more companies enter the testing marketplace, the costs of the tests will certainly decline, and you may weigh which prosecution method is appropriate. In short, lab tests are not always needed, and they are not as costly as some initial reporting indicated,” the letter states.

Williamson County recently announced it was taking a similar stance as Travis County.  However, down in Hays County, District Attorney Was Mau will continue prosecuting all marijuana cases, saying the legalization of hemp won’t change that

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