Texas lawmakers thought they were clear: The bill they overwhelmingly passed allowing the growth and sale of hemp had nothing to do with legalizing pot.
“This is no slippery slope toward marijuana,” Charles Perry, a Republican state senator who sponsored the bill, said in May, according to The Dallas Morning News.
But since Gov. Greg Abbott signed the measure into law in June, county prosecutors around Texas have been dropping some marijuana possession charges and declining to file new ones, saying they do not have the time or the laboratory equipment needed to distinguish between legal hemp and illegal pot.
Collectively, the prosecutors’ jurisdictions cover more than 9 million people — about a third of Texas’ population — including in Houston, Austin and San Antonio.
Still, many prosecutors agree with the governor and are continuing to charge and prosecute marijuana cases as usual.
The district attorney in El Paso, Jaime Esparza, a Democrat, said this month that the law “will not have an effect on the prosecution of marijuana cases in El Paso.” A spokeswoman confirmed that Esparza had not thrown out any cases because of the law.
The accidental leniency represents one of the unintended consequences states may face as they race to cash in on the popularity of products made with or from hemp. Interest has surged in oils, gummies and other goods infused with CBD, or cannabidiol, which is processed from cannabis plants but does not get users high.
In Texas, prosecutors have already dropped scores of possession cases, and they’re not just throwing out misdemeanors. The Travis County district attorney, Margaret Moore, announced this month that she was dismissing 32 felony possession and delivery of marijuana cases because of the law.
Abbott and other state officials, including the attorney general, pushed back on Thursday, saying prosecutors should not be dropping cases because of the new legislation, known as H.B. 1325.
“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” the officials, all Republicans, wrote in a letter to prosecutors.
Kim Ogg, the Harris County district attorney and a Democrat, shot back by saying that laboratory confirmation “has long been required” to prove someone’s guilt.
Before the legislation went into effect, laboratories had to identify hairs on marijuana flowers and test for the presence of cannabinoids, a process that required just a few minutes. Because the new law distinguishes between hemp and illicit marijuana, prosecutors say labs would now be required to determine the concentration of THC in the seized substance.
Peter Stout, president of the Houston Forensic Science Center, said he has been able to identify only two labs in the country that can make the fine distinction necessary and that are accredited in Texas. Both of them are private.