News that Texas effectively decriminalized marijuana through poorly written hemp‐farming legislation has upset state lawmakers and confused law enforcement officials and prosecutors.
The legislation in question, H.B. 1325, amended the state agricultural code to permit production, sale, and possession of hemp and CBD products containing a THC concentration of 0.3 percent or less. What lawmakers missed was the inability of state crime labs to determine THC concentration. Shortly after the act was signed by the governor, the Texas District and County Attorneys Association advised their members it might be necessary to wait until the state acquires equipment to perform the appropriate tests before pursuing legal action against marijuana defendants. In addition, the Texas Department of Public Safety informed police that, “effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”
In 2017, Texas made 62,057 arrests related to marijuana possession, accounting for 44 percent of all drug‐related arrests and 8 percent of total arrests. Since 2010, even as total arrests have declined (from 1.1 million in 2010 to 0.8 million in 2017) the share of arrests attributable to marijuana violations grew from 6.8 percent to 8.2 percent.
But if the directives issued by the TDCAA and TDPS become the new standard, Texas could see a huge decline in arrests and prosecutions. This will generate budgetary savings and facilitate re‐allocation of law enforcement and judicial resources to more pressing issues.
Texas may, of course, repeal HB 1325; or worse, spend taxpayer money on the necessary testing equipment. That would be a shame. Even though this de facto decriminalization was an accident, it was a good one.
