Justin K. Hall Sept. 20, 2019

What will happen to the Prosecution of Marijuana Cases in Texas?

On June 10, 2019, Governor Gregg Abbot signed House Bill No. 1325 into law. House Bill No. 1325 is a Hemp Farming Act.

What is Hemp? Good Question. In House Bill 1325, the Texas Legislature has defined Hemp as the plant Cannabis Sativa L (i.e. Cannabis) and any part of that plant, including 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 (THC) concentration of not more than 0.3 % on a dry weight basis.

This definition is the same one that the Texas Legislature used to define Marijuana in the Texas Health and Safety Code. The only difference is that the Texas Health and Safety Code makes possession of Cannabis (which they identify as Marijuana) illegal.

IN SUMMARY: House Bill No. 1325, has created two categories of Cannabis in the State of Texas. One category of Cannabis is legal and the other is illegal.

LEGAL CANNABIS: Hemp = Cannabis with less than .3% THC; and

ILLEGAL CANNABIS: Marijuana = Cannabis with more than .3% THC.

So how will the Police in Texas know whether they are smelling Hemp or Marijuana? Good question.

The arresting officer would have to know the difference between the odor of less than .3% THC (legal cannabis) and the odor of more than .3% THC (illegal cannabis).

Folks, the STATE OF TEXAS has a big problem. Because less than .3% THC (Hemp) is legal, Marijuana (more than .3% THC) cannot be distinguished from Hemp without the STATE testing the substance in a lab.

  1. The STATE OF TEXAS must now test Cannabis if they want to prosecute Possession of Marijuana cases;

  2. The STATE OF TEXAS can no longer prove Possession of Marijuana cases with just the testimony of the police/arresting officer;

  3. The STATE OF TEXAS must now bring a lab technician to trial;

  4. The STATE OF TEXAS must now use Expert testimony by an analyst to prove that a Defendant was in possession of the illegal Cannabis.

The STATE OF TEXAS will have to start testing all Cannabis to determine if it contains .3% or higher THC (Delta 9).

Cops can no longer claim that they can smell Marijuana (Cannabis). To claim that they smelled Marijuana, an arresting officer will have to testify that they can smell the difference between less than .3% THC and more than .3% THC. A Police Officer cannot distinguish how much THC he smells. Cases where the Texas District Attorney uses only one witness (usually a police / arresting officer) to prove Marijuana Possession is Texas may be a thing of the past.