How Does Legalization Of CBD Products Impact Prosecution Of Marijuana Offenses In Texas?

Travis County, along with a couple of other counties, has taken a hard look at the new hemp law and made a decision about how they are going to prosecute further marijuana offenses in Travis County. To be clear, I will be addressing both industrial hemp and what people would normally call marijuana or THC-containing cannabis. Drug dogs that have been trained to hit on cannabis are being retired in states where marijuana has become legal for recreational purposes, and new dogs are being trained to not hit on cannabis. When a drug dog detects marijuana, they are detecting that the plant they are smelling is cannabis, and specifically the dog is smelling the terpene compounds that give Cannabis its potent smell, rather than the tetrahydrocannabinol (THC) or Cannabidiol (CBD) themselves . As of June 1, 2019, hemp products are legal in Texas as long as they do not contain more than 0.3 percent of THC. However, since drug dogs are unable to distinguish at all between THC-containing cannabis and non-THC or low-THC cannabis, people who have perfectly legal products may become subject to a search of their vehicles and possibly seizure of CBD-containing cannabis based upon the use of an improperly trained dog. While it remains to be litigated, it is clear that courts will not uphold searches based solely on a drug dog alert where that dog was originally trained to detect marijuana.

Many people might assume that the authorities would send the cannabis to the lab to determine whether it contains THC, but in Texas, all that has been required in the past for a conviction is for an officer to say that it is marijuana, based upon their training and experience. Since something that looks very much like illegal cannabis (marijuana) may in fact be legal cannabis (hemp), this has become a significant problem, and it’s no longer a determination that officers can make on the street. Furthermore, even if they were to make that determination on the street and arrest someone for it, their arrest or seizure of the drugs for testing would still have to arise to the level of probable cause, and to convict should now require a lab test.

In Travis County, there is currently no machine or ability to test for the concentration of THC in a sample of cannabis. Up until now, however, the concentration hadn’t mattered. If you had cocaine and it was cut with baking powder, then you would be charged with the full weight of the cocaine and the baking powder, so purity was irrelevant, but when it comes to marijuana, the concentration of THC matters. Due to the fact that there is no way of testing for this in Travis County, the district attorney is rejecting all marijuana prosecutions as of mid-July 2019 and will not be further prosecuting marijuana prosecutions until they have a machine that can test for the concentration of THC (I speculate that they are never going to spend money on that machine, especially given the fact that property tax changes have put a strain on local budgets). I believe the Travis County attorney’s office is also rejecting all marijuana misdemeanor prosecutions going forward, but they still have a number of marijuana prosecutions pending that they have not yet cleared off their dockets. They are facing some pressure from misdemeanor judges to clear or dismiss those cases.

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