It happens sometimes during a legislative session that the House, Senate and governor give approval to legislation that turns out, upon further review, to be a mess.
The first notable instance of that from the recent session was the accidental elimination of the office responsible for issuing plumbing licenses. With the office gone, consumers eventually would be forced to simply believe a plumber had qualifications, and those who had worked through the lengthy licensing system could be at the same level of those who had not. It was a mess, and the governor’s “solution” was questionable, at best.
Now we have learned the Legislature also established a standard for legality between industrial hemp and marijuana that presents challenges for equal enforcement across the state. Texas had to act because the 2018 Farm Bill, passed by Congress, made hemp legal in the United States.
The challenge is that both hemp and marijuana may contain the psychoactive drug THC.
The new Texas law deals with that by deeming any substance with more than 0.3 percent THC to be illegal marijuana, while substances with less are considered legal hemp. It is the same standard used by the federal government.
That seems simple enough, right?
Unfortunately, labs in Texas and those connected with the Texas Department of Public Safety don’t have testing equipment precise enough to determine the 0.3 percent threshold. That requires a mass spectrometer. One of those devices can cost from $400,000 to $500,000 and the DPS doesn’t have the money in its budget to purchase even one, much less the number required for statewide testing.
So testing makes sense for large quantities of pot, but it simply is not cost effective for someone caught with one marijuana cigarette or some other small amount.
That has led many district attorneys who prosecute drug cases across the state to stop devoting time to those small cases. But three area district attorneys — in Gregg, Upshur and Rusk counties — say they plan to move ahead with all prosecutions, including those misdemeanor crimes that include amounts of marijuana of four ounces or less.
We understand continuing to deal strictly with those situations that involve felony amounts of marijuana. If someone is caught with, say, a pound of pot, that is obviously beyond personal consumption. They are hoping to sell some of that and we believe in putting drug dealers behind bars.
That, too, will require the advanced testing but the good to the public is worth the extra cost and effort. We doubt the misdemeanor cases will be worth the effort.
But there is a much more problematic matter to consider.
District attorneys in some of the state’s largest cities, including nearby Dallas and Fort Worth, have already dismissed hundreds of cases and told police agencies not to bother with filing charges on smaller amounts.
So a person stopped with four ounces of marijuana in Dallas may not get so much as a ticket. But driving through Gregg County risks prosecution that could land them in jail for a year. If you think that sounds unfair, you’re right. The law should be enforced equally, but first the law has to make sense.
This one does not.
Our area district attorneys should rethink their approach. We want full-bore prosecution of those who are dealing the drug, at least until the Legislature fixes the problem. That could be two years away or it could be done in a special session.
Either way, Texans deserve to know how the law will be enforced wherever they go. A patchwork of regulation across this state is not the right approach.