Bexar County will stop prosecuting some pot cases

New lab equipment will allow Bear County District Attorney Joe Gonzales to prosecute felony pot cases. But the DA will continue to divert low-level cases through cite and release. We think this is the right balance. less New lab equipment will allow Bear County District Attorney Joe Gonzales to prosecute felony pot cases. But the DA will continue to divert low-level cases through cite and release. We think this is the right ... more Photo: Rebecca Slezak /Staff Photographer Photo: Rebecca Slezak /Staff Photographer Image 1 of / 1 Caption Close Bexar County will stop prosecuting some pot cases 1 / 1 Back to Gallery

Bexar County District Attorney Joe Gonzales said Wednesday his office will no longer prosecute some marijuana cases while he grapples with the unintended consequences of a new state law that legalized hemp.

The law draws a line between marijuana and hemp, both of which come from the same plant. But it inadvertently made prosecuting marijuana possession cases more difficult, time consuming and costly.

To tell the two apart, district attorneys will now need to rely on more technically advanced testing equipment that’s not readily available.

Gonzales was joined by at least four other Texas prosecutors who said they will not press charges for possession of small amounts of marijuana, at least not until the testing problem is resolved in some way.

Charges for larger amounts of marijuana will be evaluated on a case by case basis, he said.

During the legislative session that ended in May, lawmakers approved House Bill 1325, which made industrial hemp legal on June 10 and ushered in a new definition of what’s pot and what’s hemp.

Marijuana is now defined as having more than 0.3% THC — the psychoactive ingredient that gives users a high — and remains illegal. Anything under that amount is hemp and now legal.

The distinction follows a definition adopted by the feds in the 2018 U.S. farm bill, which legalized hemp federally and sparked interest from state lawmakers who wanted to do the same in Texas.

The new law is good news for the hemp industry and aspiring farmers who want to cash in, but it failed to anticipate the problem of crime labs — including the Texas Department of Public Safety’s — lacking the pricey equipment needed to determine THC levels. The machinery could cost upwards of $300,000, according to Houston Forensic Science Center president Dr. Peter Stout.

Gonzales said his office “is working diligently to locate a lab that can conduct such testing.” A spokeswoman for the San Antonio Police Department said it is exploring all of its options, as well.

The announcement from the Bexar County District Attorney’s Office comes three days after Gonzales initiated a new cite-and-release policy. Starting this week, law enforcement officers in San Antonio and Bexar County can cite — rather than arrest — people accused of some misdemeanors, including possession of less than four ounces of marijuana. In some ways, the citation is similar to a traffic ticket.

Other offenses eligible for cite and release are criminal mischief, theft, theft of service — such as leaving a restaurant without paying the bill — and driving with an invalid license.

Gonzales, a Democrat who took office Jan. 1, said cite and release will remain in effect even in light of the new policy to not press marijuana charges, at least as long as testing is a hurdle.

Prosecutors in Harris County, which has a similar program for misdemeanor marijuana possession, said Tuesday that people caught with less than four ounces of marijuana will still be placed in a diversion program that requires them to take a class.

If they refuse, they’ll do so with the knowledge that they could face charges at a later date if the police come back with test results from a lab.

On ExpressNews.com: Under cite and release, people caught with small amounts of pot won’t have to go to jail

It is unclear whether the Bexar County District Attorney’s Office intends to drop misdemeanor pot cases that were filed after the hemp law took effect June 10, as Harris County says it intends to do.

Prosecutors scramble

Three other prosecutors — in Tarrant, Fort Bend and Nueces counties — said they, too, will not pursue pot charges without further testing.

Tarrant County District Attorney Sharen Wilson, a Republican, threw out more than 200 marijuana cases, according to the Fort Worth Star-Telegram.

In Fort Bend County, the district attorney’s office is reviewing cases to determine if each case should be retained, dismissed or refiled as something else, such as possession of drug paraphernalia. In Nueces County, prosecutors are still considering what to do with pending cases.

“What the prosecutors are doing is looking at them on a case-by-case basis,” Fort Bend District Attorney Brian Middleton said. “Some of these cases are going to be refiled probably as Class C misdemeanors, but some of them may get retained based upon the circumstances. The public should know this is not just a wholesale dismissal of all cases. We’re going through them case by case.”

The San Antonio Police Department and Bexar County Sheriff’s Office said Wednesday that their policies remain unchanged in light of the new hemp law. They said that officers and deputies will continue to use discretion on whether to cite or arrest people for possession of marijuana, even if those charges could later be dismissed.

Between 2014 and 2018, San Antonio police officers made about 15,000 arrests for Class A and B possession of marijuana.

Prosecutors in Comal and Guadalupe counties did not immediately respond to requests for comment on the new hemp law and how their offices plan to handle misdemeanor marijuana cases.

Two major Texas law enforcement groups — the Texas Police Chiefs Association and Sheriffs’ Association of Texas — said they were concerned about the implications of the new hemp law. The groups, both of which urged the Texas Legislature not to lower criminal penalties for possession of small amounts of marijuana, said they were evaluating the law and trying to determine what can be done moving forward.

“I think it’s a slippery slope for us,” said Belton Police Chief Gene Ellis, president of the Texas Police Chiefs Association. “It’s possible the Legislature could be sending the wrong message that marijuana is legal in Texas when it’s not.”

Ellis cautioned against the notion that four ounces of marijuana is recreational, as many advocates contend. He said one ounce of marijuana can be rolled into roughly 84 cigarette-sized joints.

“With four ounces of marijuana, that could equate to 336 joints,” he said.

Still, the lawmakers who backed and authored the new hemp measure defended it.

“I’m not saying this is not a serious issue,” said Rep. James White, R-Hillister, but he thinks there are ways to pay for the advanced testing equipment.

How to test for THC

Some prosecutors — including those in Grimes, Galveston and Montgomery counties — vowed to continue filing pot charges, even if it means waiting until labs catch up.

“This office will continue to prosecute marijuana cases,” Galveston County District Attorney Jack Roady wrote Tuesday. “My office will commit to filing all charges where the substance has been properly analyzed by the lab to be marijuana, even if that charge comes at a later date.”

On ExpressNews.com: Is pot now legal in Texas? District attorneys scrambling to respond to clumsy legislative action

To tell whether a sample has any THC, labs have done quick chemical tests for cannabinoids and looked for characteristic hairs that should be present on any pot plants. That only took a few minutes, according to Stout of the Forensic Science Center. When the sample in question was anything other than plant matter — maybe brownies or a vape pen — labs relied on something called gas chromatography-mass spectrometry to detect THC, without figuring out the exact concentration.

But with the hemp law, labs will have to extract THC from the sample, come up with a procedure and calibration curve, figure out what instrument is best for testing and expand their accreditation. It might be possible to use existing equipment for plant-based samples, but Stout said that testing edibles and oils will require the purchase of expensive new equipment.

As of now, Stout said he only knows of one lab — NMS Labs in Pennsylvania — that’s accredited in Texas for the more precise testing now required. Others could purchase equipment, develop procedures and broaden their accreditation to follow suit, but the entire process could take months.

Middleton in Fort Bend said prosecutors could test the evidence using private labs, but that could run anywhere from $90 to $500 per test.

“I can tell you our office doesn’t have the money to pay for these tests and I’m sure most agencies don’t,” Middleton said.

He still emphasized that his office would begin prosecuting cases again once an affordable and practical solution is made available to conduct lab testing. He also warned that law enforcement would still likely arrest people who are caught with marijuana in Fort Bend County.

“I would discourage anybody from consuming marijuana in public because you are most likely going to be arrested,” Middleton said. “It’s still a crime. They also should keep in mind that there are other offenses for which you can be arrested for including possession of drug paraphernalia.”

In Nueces County, District Attorney Mark Gonzalez said he was not sure if he would change the policy back if the funding and infrastructure becomes available to test misdemeanor marijuana cases.

“Perhaps,” he said. “It’s not one of the things that I’m going to be urging. In the grand scheme of things, my focus isn’t on low-level marijuana or people who spoke marijuana recreationally. It’s on murders and sexual assaults.”

Staff writer Brooke Lewis contributed to this story.