On February 18th, Texas DPS director Stephen C. McCraw sent a letter to DPS laboratory clients stating the department would not be accepting misdemeanor cases.

The letter was also a sign that DPS is approaching readiness for new lab tests. These lab tests will tell the difference between newly legal hemp and illegal marijuana in the state. But the state labs will only be taking on felony cases of possession. That applies to any possession of over 4 ounces or the sale/delivery of more than 7 grams. Anything below that must go out to a private lab.

As a result of this, some counties and cities have dropped cases altogether for low-level possession, such as Austin. But other DA’s have decided that they will continue to prosecute these cases such as in Hays and Guadalupe counties. Most places stopped prosecuting unless police could hand over a lab report that showed what suspects had was illegal.

With HB 1325 passing, the lab report was one public lab in Texas that couldn’t be produced yet. This resulted in local agencies seeking costly private labs or leaving pot cases to sit on the shelf while the state tries to sort this out. The letter from McCraw says that testing is nearly ready, but it’s only for felonies and only for plant materials, not oils or edibles.

Jax Finkel of TXNORML spoke about the fallout of the legislature’s decision to the Austin Chronicle last year.

“This is allowing what most Texans support – 84% want to see lesser penalties for marijuana,” she says, noting that urban officials understand these changes can help them save money and better allocate resources. “This is a real-world test run for what it will be like if we don’t prosecute for marijuana. We’ll see that it’s not worth the resources or testing cost.”

And from what DPS released, that seems to be true. McCraw stated, “The 86th Legislature added resources to the laboratory to help expedite the analysis of those felony cases, however, additional funding to address misdemeanor cases was not provided because the laboratory does not analyze misdemeanor drug cases. Annually, there are more than 80,000 misdemeanor marijuana arrests made in Texas. DPS will not have the capacity to accept those misdemeanor cases. “

Until the policy is changed and funded for DPS in the 87th legislature, DPS will not take on misdemeanor cases. New THC testing in state labs is expected to be ready by the end of March. DPS will need 60 days to get it implemented, McCraw said in the letter. After that, McCraw outlined that the agency expects to take about 75 days to test the 845 felony plant cases local agencies have already sent over that took place after June 10, 2019. Then the agency will be moving on to cases sitting in police or prosecutor evidence rooms.

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