AUSTIN, Texas - The Travis County District Attorney is dismissing 32 felony marijuana and THC cases because of a law that legalized hemp in Texas.
The Travis County Attorney is also dismissing an additional 61 misdemeanor marijuana cases.
“It is a problem. We have a problem,” said Travis County District Attorney Margaret Moore.
The problem stems from the new law that legalized the production and regulation of hemp. It states any part of the cannabis plant containing 0.3 percent or less of the psychoactive ingredient THC is considered legal hemp. Anything more than 0.3 percent is illegal marijuana.
“Bottom line is nobody has a machine that can give you a lab result telling you what the concentration of THC is in that substance,” Moore said.
Both the Austin Police and Texas Department of Public Safety crime labs said it could take 8-12 months before they have equipment and procedures in place to test for THC content.
“Without that kind of evidence, prosecutors cannot make their case,” said Moore.
Because of that, several district attorneys have decided prosecuting marijuana cases, especially misdemeanor cases, aren’t worth the time or money.
“So we need to consult before we file a case to see if it merits that additional expenditure of public money that nobody has budgeted for,” Moore said.
After discussing the issue with the sheriff and police chief, Moore decided to dismiss 32 felony cases involving marijuana or THC possession or delivery. That includes six possession of marijuana cases, 14 state jail felonies, five third-degree felonies, four second-degree felonies and three first-degree felonies for delivery of 4-400 grams. All of those cases were filed on or after June 10 when the new hemp law took effect.
“I'm writing a letter to all the law enforcement agencies and telling them not to file a felony POM or THC case without consulting us first,” said Moore.
The county attorney is also dismissing 61 misdemeanor marijuana cases.
Moore said in some instances, although an offender's marijuana charges are being dropped, other criminal charges will still be pursued.
“We do want to be very mindful of not affecting public safety,” Moore said.
One thing Moore finds frustrating is that legislators claimed the hemp bill would have no local fiscal impact and now prosecutors and law enforcement agencies are paying the price.
“Especially in a time when we've got so much DNA testing that's backed up and we're going to go be spending it on this, but that's the legislature's decision,” said Moore.
Moore’s office is also working with law enforcement to figure out how the new law will affect drug detection dogs. Because the dogs cannot smell the difference between hemp and marijuana, some question whether they'll be able to be used to establish probable cause for a search.
Travis County is the latest to dismiss possession of marijuana cases, but not the first. Tarrant, Bexar, Harris, Nueces, and Fort Bend counties are currently no longer accepting criminal charges for misdemeanor possession of marijuana cases.