Harris County sets new standard for prosecuting misdemeanor marijuana cases

HOUSTON (FOX 26) - Last month, Governor Greg Abbott signed House Bill 1325 into law allowing farmers to grow hemp as crop. It defines hemps as:

"The plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis."

While this change is good news for farmers and consumers, it is causing a headache for law enforcement.

"Now, under the new law, [it] requires us to prove potency," said Paul Fortenberry is in charge of the Major Narcotics' Division of the Harris County District Attorney’s Office. 

On Tuesday, the office announcing it will not accept criminal charges for misdemeanor possession of marijuana without lab testing proving a THC level over 0.3 percent.

"Once we do get laboratory testing, we will, however, take those cases," added Fortenberry.

But he says, across the state, resources are scarce for that type of quantitative testing and getting more certified labs could take months.

"That's why you have law enforcement and labs scrambling and really moving quickly to comply with the new law and comply with the new definition of marijuana," Fortenberry stated.

Meanwhile, Amaan Maherali, owner of Elevated Wellness stores across the Houston area, says this change is welcomed step. He hopes it is one step closer towards the expansion of medical marijuana laws.

He adds says he’ll be able to better serve his customers by offering full spectrum, or more pure CBD product,  that customers ask him about.

"They'll do their research. They'll read that full spectrum helps the body better than broad spectrum or isolate spectrum CBDs," he told FOX 26.

Fortenberry mentioned that, in the meantime, local law enforcement agencies may decide to outsource testing to labs outside the state.

Other counties have also reacted to the change.

The Fort Bend District Attorney's Office said, in part:

"The legal standard to initiate a criminal investigation and make arrests has not changed; nevertheless, we will not be able to prosecute marijuana violations without a lab test quantifying the concentration of the once prohibited, and now regulated substance in hemp and marijuana – THC. 

Pending misdemeanor charges will be dismissed with the opportunity for our office to prosecute if, and when, an acceptable lab test becomes available.  We will continue to offer our marijuana diversion program which qualifies successful participants’ charges for expunction."

However, the Montgomery County DA stated, in part:

"...the Montgomery County District Attorney's Office will continue to accept and file appropriate criminal charges. And this office will continue to dispose of marihuana cases utilizing appropriate plea bargains and pretrial diversion programs.

It is true that there will be, for some undetermined period of time, a shortage of laboratories capable of determining the THC concentration of hemp and marihuana, and distinguishing lawful hemp from unlawful marihuana containing a THC concentration of more than 0.3 percent. But the anticipated delays in disposing of those few cases in which individuals persist in pleading not guilty do not justify prosecutors' abdication of their responsibility to enforce the criminal laws of Texas.

This office will not use the anticipated problems in implementing the new legislation as a pretext to achieve the policy goal of ending prosecution of marihuana cases, particularly after the recent failure of all legislative efforts to decriminalize or reduce the penalties for possession of marihuana."