AUSTIN – Governor Greg Abbott, Lt. Governor Dan Patrick, Speaker Dennis Bonnen, and Attorney General Ken Paxton today sent a letter to all Texas District and County Attorneys (DAs) 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.’”

Below is an overview of the letter. The full letter can be found here.

Marijuana, Hemp, and the 2018 Farm Bill

Congress’ 2018 Farm Bill differentiated hemp from marijuana by setting a tetrahydrocannabinol (THC) threshold concentration of 0.3%. Anything above 0.3% is still considered marijuana and therefore generally illegal in Texas.

H.B. 1325 Adopted the Federal Framework

The Farm Bill delegated primary authority over how to regulate the production and sale of hemp to the states. H.B. 1325 adopted the 0.3% THC standard (same as the Farm Bill) for distinguishing regulated hemp from prohibited marijuana. Furthermore, H.B. 1325 directs the Texas Department of Agriculture to pass rules requiring hemp producers to be state-licensed and test their products to ensure 0.3% or less THC concentration.  Importantly, the law also requires a shipping certificate that confirms the product in transport is legally compliant hemp (no more than 0.3% THC). Failure to have the required certificate during transport is a misdemeanor and also subjects the person to a civil penalty of up to $500 per violation. In short, H.B. 1325 gave prosecutors more tools to prosecute these crimes, not less, because they can now prosecute a misdemeanor for failure to have a proper hemp certificate.

Lab Tests Are Only One of Multiple Established Ways to Prove Marijuana Possession Cases

Additionally, as some DAs and county attorneys have pointed out, lab tests are not the only way to prove marijuana possession cases. Adopting this federal definition of hemp did not limit the prosecutorial options for prosecuting marijuana cases. Criminal cases can be proven either through lab tests or through other circumstantial evidence. Furthermore, 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. Finally, even if a lab test were needed, they are not as costly as some initial reporting indicated.