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Pot cases down, confusion up after pot law change


When he took the bench in 2019, the seats in Harris County Court at Law Judge Franklin Bynum’s misdemeanor courtroom used to be filled with people trying to fight possession of marijuana cases.

Now, nearly two years after a change to Texas agriculture laws made it legal for farmers to grow hemp, Bynum’s court rarely sees those cases. Marijuana is still illegal in Texas, but the law made it harder, more expensive and more labor-intensive for investigators to differentiate between the illegal drug and legal hemp.
“The Legislature is a funny place,” Bynum told 13 Investigates. “Being in here every day and seeing the law change and applying the law. … There are definitely intended and unintended consequences.”

13 Investigates analyzed pot possession cases in Harris County and the surrounding area starting a year before the law changed. We compared it with the 19 months after the law changed.

In the year before the hemp law went into effect on June 10, 2019, there were 3,078 marijuana possession cases filed in Harris County. Now, cases are down 91%. Since the law went into effect, only 286 marijuana possession cases have been filed in the county.

Pot prosecution cases are also down in most surrounding areas. In Fort Bend County, pot possession cases are down 90%. It is down 58% in Galveston County and down 48% in Brazoria County.

In Montgomery County, there were 2,091 cases in the year before the law changed, but 2,439 in the 19 months following. It is the only county in our analysis where cases went up over that time period.

“Marijuana is not the most serious charge that we deal with. It’s more serious than speeding. It’s less serious than possession of methamphetamine,” said Mike Holley, the first assistant DA of Montgomery County District Attorney Office. “It’s still illegal in the state of Texas.”

Still, district attorneys across the region agree it is becoming increasingly difficult to prove through testing whether a substance is a marijuana or hemp since both are from the same plant species.

The new law created a THC limit to tell the difference between legal hemp and illegal marijuana. If the TCH is below 0.3%, it is considered hemp and is a legal crop in Texas. But, if there is more than 0.3% THC, it is marijuana and illegal.

Labs in Houston can test confiscated marijuana leaves, but when it comes to testing marijuana gummies, cookies, and vape oils, it is time-consuming, expensive, and increasingly troublesome.

“It contaminates instruments. It damages instruments. It’s difficult to separate that stuff away so that we can see the THC, the compound that we’re interested in,” said Dr. Peter Stout, CEO of the Houston Forensic Science Center. “We can identify if there’s THC there. I can’t give you that result of, ‘Is it over 0.3% or under 0.3%?’ I can’t do that.”

Stout said the center collaborated with the state to develop a method to test for THC levels, but no additional funding was provided for agencies to help with the added cost of testing.

Holley said the Montgomery County Commissioner’s Court allocated $50,000 to help handle marijuana cases, but there may come a time in the future where it’s not economical to pursue those low-level drug cases because of the added cost of testing.

“There are limits to (prosecuting marijuana cases) because it can become economically infeasible to do that and it shouldn’t work that way,” Holley said. “The Legislature has created a system wherein they’re going to make it so difficult to prosecute these cases that it just doesn’t make sense to do that and you hate to get to that point, but it feels like we’re approaching there.”

Stout said the new law means his lab had to decide how much time and funding to devote to testing marijuana versus other, more serious crimes.

“It’s irresponsible for me to spend resources that I could be using to test for fentanyl or carfentanil on training additional people to do this testing right now,” Stout said. “Without the resources to help laboratories be able to take the risk of where to put those resources, I’m juggling. If I spent it on marijuana that could be made legal by the feds next year, I don’t have those resources to spend on carfentanil that’s killing people.”

‘Confusing to the public’

In Bynum’s court, there were 15 months after the law went into effect, and during the pandemic, when not a single marijuana charge was filed.

“It is certainly a welcome change that formal filings are reserved for the most serious cases,” Bynum said.

Harris County District Attorney Kim Ogg said with an increase in violent crime across Houston, low-level misdemeanors are not the priority, especially if that means having to spend more resources differentiating between marijuana and hemp.

In 2008, before Ogg was elected, there were 14,000 marijuana possession cases in Harris County. In 2020, her office filed just 201 according to figures Ogg’s office provided. The decrease in marijuana cases is partly due to Ogg’s campaign promise to lower the number of people charged with possession of marijuana and send people caught with pot to classes or diversion so cops and courts could focus on more serious crimes.

Now, the county is also not prosecuting cases where someone is in possession of gummies, vape oils or other marijuana products because there’s no fast and affordable way to verify it’s actually marijuana.

Instead, Ogg said law enforcement confiscates the contraband as evidence and offers the person a class in the misdemeanor marijuana diversion program, which is affordable or free for indigent residents.

“We’ve had about a 50% success rate in getting people to go to the class,” Ogg said. “In other instances, prior to the change in law, we wrote warrants for the people who didn’t comply, but now with the change in law, the cost of the labs, the backlog, we’ve kind of put that on hold.”

In Montgomery County, marijuana cases still result in a charge but are resolved with a drug education class or community service instead of a criminal conviction.

Holley told 13 Investigates, “We strive to craft reasonable consequences for violations of this criminal offense as it currently exists. What we are not prepared to do is to ignore violations of this offense entirely. If the law changes, we will follow accordingly.”

Still, the new law has caused confusion since each county is handling marijuana cases differently.

“District attorneys and police departments are using their discretion across the state differently and in using their discretion differently, it’s confusing to the public,” Ogg said.

To help clear the confusion caused by the unfunded law, Holley said he is keeping an eye on marijuana-related legislation this session that could provide more clarity on the agricultural Hemp Law and its impact on marijuana prosecutions.

“We were hoping the Legislature would ride to the rescue, but we reviewed the pending bills and nothing in those pending bills address this problem,” Holley said. “Some reduce the penalties for marijuana, but none address the testing issue, so no, there’s no relief in sight from the Legislature.”

Ogg said she’s watching the legislature, too.

“They have the opportunity to clean up discrepancies, differences in the law and in marijuana law,” she said. “Whether it’s in Texas or nationwide, we see a patchwork of uneven, disparate policies, laws and programs and I think Texans will benefit from having legislators having the courage to fix this.”