Should your Texas marijuana case have been dismissed?

 Posted on July 13, 2019 in Writs of Habeas Corpus

As many of you know, the Texas Legislature recently passed a law legalizing hemp. You may not be aware that the new hemp law has led to the dismissal of hundreds of weed cases, and that your recent conviction may be legally suspect.

If you have been convicted of or entered a plea to a possession of marijuana case since June 10, 2019, you may have a legal basis to get your conviction or disposition overturned. You should consult a post-conviction attorney for more information.

The New Law

House Bill 1325adds provisions to the Texas Agricultural Code that authorize farmers to grow hemp and entrepreneurs to legally create pretty much any hemp-based product they want.

The law also changes the legal definition of marijuana. It amends articles 481.002(5) and (26) of the Texas Health and Safety Code to modify the list of things that are not marijuana. Specifically, any substance containing less than .3% of delta-9 tetrahydrocannabinol is no longer considered a controlled substance. So hemp is legal to possess, as is other popular products such as CBD oil, as long as they the testable percentage of THC is below .3 percent.

The law became enforceable immediately upon signature of the governor, on June 10, 2019. That means any pleas or convictions for possession of marijuana on or after June 10th are subject to the new modified definition.

Unforeseen Consequences

Usually it’s conservatives calling out liberals for passing laws that are good in theory but cause unforeseen havoc. In this case, it was the conservative Texas Legislature that apparently wore blinders while drafting and debating this law, since the final product blindsided state prosecutors by raising their burden of proof in felony and misdemeanor marijuana cases.

As the Texas Tribune has pointed out, many large-jurisdiction prosecutors are dismissing low-level weed cases because of the modifications to the legal definition of marijuana. Texas DPS laboratories don’t have the equipment needed to test the concentration (rather than just the existence of) THC in any substance suspected to be contraband. According to the article, the machines would cost $300,000 to $500,000. And that doesn’t even include the costs of accreditation and training personnel.

The District Attorney in Montgomery County has made official representations that his office will not use the new law as a “pretext” to decriminalization. He also points out that the State has not issued any licenses to grow hemp yet, implying that without such a license in hand, hemp is still effectively illegal in Texas. The DA and other public officials have also pointed out that the new hemp law precludes making hemp products that can be smoked or vaped. Again, the implication here is that it is still illegal to smoke or vape hemp.

This interpretation of the new law is misleading.

HB 1325 not only provides for the licensure of hemp farms and products, but also directly modifies the definition of marijuana in the Health and Safety Code. So, the fact that Texas hasn’t issued a license yet is irrelevant to individuals not in the business of making a hemp product. And, although you can’t start a business that makes hemp vape or cigarette products, you can still possess them! In fact, you can legally possess any hemp product, regardless of whether it can be smoked or vaped. Possessing hemp with a concentration of .3% THC or less is now legal in Texas. Period.

Of course, the District Attorney can create any policy he wants regarding marijuana cases, but once the case is set for trial, it is the State, not the defendant, who has the burden of proving that the substance is marijuana. Montgomery County and any other jurisdiction intent on holding on to marijuana cases better be prepared to pony up for the necessary testing equipment and staff training to prove their cases.

Good luck with that!

New Trials for Those Recently Convicted

In the meantime, if you’ve entered a plea to possession of marijuana charge (either felony or misdemeanor) in any jurisdiction in the State of Texas, on or after June 10, 2019, you might be eligible for a new trial. If you went to trial and were convicted, the evidence may not have been sufficient to sustain the conviction. Conversely, if you pled guilty but were not advised by counsel about the State’s burden of proving that the substance was not hemp, then your plea might have been involuntary.

It is certainly worth your time to contact a post-conviction attorney to discuss your case.