Home Legislative Why Have So Many Texas Prosecutors Started Dropping Marijuana Possession Cases?

Why Have So Many Texas Prosecutors Started Dropping Marijuana Possession Cases?


Recently, the state of Texas made the decision to legalize hemp, effectively making all CBD products made from industrial hemp and with less than 0.3 percent THC legal for sale and possession throughout the state. While this was intended to help patients who want to obtain and medicate with full spectrum CBD hemp oils, it had a somewhat surprising and unintended effect as well, with prosecutors all over the state dropping misdemeanor criminal charges for marijuana possession. 

Why would they be doing this? In many counties, DAs said the reason is because testing the plant to definitively prove it was marijuana – and not its legal twin, hemp – would be too costly to do for each case. Believing people could and would use the defense that what they had on them was hemp, they have decided to simply drop many of these cases altogether.

“For unique drugs, we truly rely on the lab report,” Jaime Esparza told The Texas Tribune, noting that it can be hard to tell if a white powder is cocaine. “But when we talk about marijuana … we weren’t even using lab reports [before].”

However, it appears that state legislators wants prosecutors to know that this law was not intended to double as a decriminalization law and therefore, they should continue to prosecute marijuana-related crimes as usual. 

While some officials and district attorneys say that testing would be far more expensive than what it would be worth for a misdemeanor conviction, others – such as those in El Paso – have decided that they will certainly continue to prosecute marijuana-related cases. Officials in El Paso noted the fact that there is usually other circumstantial evidence of smoking that would make a possession charge stick “beyond a reasonable doubt” without needing laboratory tests confirming the potency of the confiscated plant material itself. 

“[The new law] allows the defense to raise a defensive issue of, ‘Hey, what you have is hemp, not marijuana.’ If there’s no lab test either way … then really it’s just a circumstantial evidence case, and we can still reasonably satisfy our proof beyond a reasonable doubt.” – ADA Darnold, to the Tribune, via KVIA

The fact that many DAs took this opportunity to stop worrying about misdemeanor cannabis cases should show state lawmakers that decriminalization is a natural step at this point. There is already too much time and money being put into criminalizing a plant when those efforts and funds could be better spent addressing issues that are far more important.