Hays County will continue prosecuting marijuana cases despite new hemp law

SAN MARCOS, Texas - A San Marcos city councilman is one of several people asking Hays County to establish cite and release policies for possession of small amounts of marijuana. This comes after a new state law legalizing the production and regulation of hemp made it difficult to prosecute people for marijuana charges. 

Fighting for criminal justice reform is important to San Marcos City Councilman Mark Rockeymoore, place 4. "I know from experience that if you have a Class C misdemeanor charge on your record, and you are someone who's otherwise a minority, it is virtually impossible for you to receive a well-paying job," Rockeymoore said.   

Many prosecutors are finding that under the new law legalizing hemp they must test marijuana to determine THC content. However, crime labs in Texas are not able to test for THC content at this time.

So several counties have decided to dismiss marijuana cases until testing equipment becomes available. "Currently, cities and towns in the State of Texas cannot afford the type of equipment necessary to test for THC levels and, since that isn't possible, it's not possible to tell when something is hemp, meaning it has a certain level of THC in it, and whether something is marijuana," said Rockeymoore. 

"Right now, possession of marijuana has been the leading arrest charge in Hays County, and we think that's ridiculous. Especially when other counties across the state have decided they're going to refuse to prosecute," said Jordan Buckley who works with Mano Amiga, an organization pushing for criminal justice reform. 

However, that hasn't swayed Hays County District Attorney Wes Mau.

He released a statement regarding the new law that reads: "House Bill 1325, the Hemp Regulation law, did not legalize possession or distribution of small amounts of marijuana in Texas.  The Hays County Criminal District Attorney's Office (HCDA) will continue to accept marijuana possession and distribution cases from law enforcement, and will continue to deal with those cases as justice requires, as well as any additional charges under the new law. HB 1325 did establish a regulatory plan for production and cultivation of hemp, which is defined as the plant, Cannabis sativa L., containing less than 0.3 percent delta-9 tetrahydrocannabinol (THC), the main psychoactive ingredient of marijuana.   These regulations include new offenses and penalties for handling hemp in violation of the new law.  These new offenses include transportation of hemp without proper documentation or failing to provide that documentation upon request of a law enforcement officer.  If facts justifying prosecution under the new statute arise, the HCDA will prosecute those cases as well. As with all criminal cases, if forensic testing is necessary before a prosecution can go forward, the HCDA will examine the need for the testing against the time, money and resources required to obtain the test results, and proceed as appropriate on a case by case basis." 

"You should be putting money towards rape kits, you should be putting money towards other cases that affect the general public, not for testing for a certain level of THC," said Faylita Hicks who also works with Mano Amiga.  

"People with only minor amounts of marijuana should not be sent to jail for that possession. They should be cited and released, if not diverted into some sort of program, so that they don't enter the criminal justice system at all," Rockeymoore said.  

Rockeymoore, who also chairs the San Marcos Criminal Justice Reform Subcommittee, said he is currently discussing cite and release policies with the San Marcos police and Hays County Sheriff's Office. At this time there is no word on whether that will be implemented.