Legal hemp poses challenges for Texas prosecutors

AUSTIN, Texas - Legalizing hemp in Texas is having unexpected consequences that are affecting criminal cases involving marijuana throughout the entire state. 

“We're kind of in no man's land right now,” said Sam Bassett, criminal defense attorney at Minton, Burton, Bassett and Collins. 

The Texas District and County Attorneys Association said most, if not all, crime labs in Texas don't have the equipment to tell legal hemp apart from illegal marijuana. 

“They've adopted the definition of hemp vs marijuana as having to do with the concentration of THC being 0.3 percent,” Bassett said.  

Texas DPS, which operates a crime lab for many law enforcement agencies, explains why that’s a problem in a statement that reads:  

“A defense attorney can easily argue now that they can't tell if it's hemp or marijuana because they don't have the labs to generate the concentration results,” said Bassett.  

Travis County District Attorney Margaret Moore said it could take six months before local labs can test for THC content. 

“So, if there's a long delay on these drug tests, that could potentially mean that people who are in jail, and probably who should be in jail, are going to have to be released because the state wouldn't be ready for trial,” said criminal defense attorney Gene Anthes.  

Not to mention, more testing means an additional expense. 

Moore said she will meet with the sheriff and police chief Wednesday to determine the best way to handle local marijuana cases, but she expects there will be a joint effort to prioritize felonies. 

“I know some counties have said they're going to dismiss a lot of marijuana cases just because they don't want to deal with it and it's just a matter of resources,” Bassett said.  

DPS said the added strain of additional testing is still a little hazy, stating

“It's also, I would imagine, going to affect other duties that that lab has to be doing. Testing other substances, testing DWI blood, testing other types of drugs, I'm sure those personnel are going to be taken away from their duties and it's going to impact those cases as well,” said Anthes.  

One way the state can proceed on a case is if the offender admits the substance in his or her possession is in fact marijuana. 

Texas isn't the only state having this issue either. Tennessee and Virginia also legalized hemp before crime labs were ready.