Marijuana Politics

Texas House OKs Marijuana decriminalization bill again as Senate hurdles remain

Posted April 27, 2023 on Houston Chronicle

The Senate, led by Lt Gov Dan Patrick, a longtime opponent of legalization, has consistently blocked the legislation.

The Texas House on Wednesday gave initial approval to a bill that lowers the penalty for possessing small amounts of marijuana to a fine-only offense akin to a speeding ticket, with no jail time.

The Republican-majority lower chamber has passed similar measures twice before, only to be blocked by the more conservative Senate, led by Lt. Gov. Dan Patrick, a longtime opponent of legalization. This year's bill needs one more vote before it heads to the Senate.

House Bill 218, authored by state Rep. Joe Moody, D-El Paso, would reduce the penalty for having one ounce or less of marijuana to a Class C misdemeanor, which is punishable by a fine of up to $500, and would require officers to issue citations rather than make arrests.

Under current law, possession of up to two ounces is punishable by up to 180 days in jail and a maximum fine of $2,000.

“Possessing a small amount of cannabis is still illegal, we’re just addressing it in a smarter way than we do now,” Moody said as he laid out the bill on the floor Wednesday.

He said the bill would free up time and money for police and "make sure those who would currently end up with a record that interferes with jobs, schools, housing and licensure come out of the process without any permanent stigma.”

HB 218 would also allow first-time offenders to have their records expunged and extend the lowered penalties to possession charges for other THC compounds and “synthetic equivalents of the substances contained in the plant,” such as delta-8.

Advocates applauded the bill’s initial passage Wednesday.

“We are thrilled to see HB 218 pass the house today,” said Lisa Sewell, executive director of Texans for Responsible Marijuana Policy. “This frees millions of tax dollars and time police have to spend on petty crimes. This will also help address the patchwork policy across the state, as well as eliminate so many collateral consequences of the current law for those with possession.”

Republican Gov. Greg Abbott and House Speaker Dade Phelan have expressed support for the intent of the bill. Patrick has not yet outlined his position.

As the state Legislature has stalled on the issue, some Texas cities and counties have moved to set their own decriminalization policies. Harris County, for example, implemented a diversion program that allows anyone caught with less than 4 ounces of marijuana to avoid an arrest, ticket or court appearances if they agree to take a four-hour drug education class.

In the program’s first two years, the Harris County District Attorney's Office estimated it saved $35 million and led to 14,000 fewer arrests.

Some local prosecutors have chosen to prosecute possession as a misdemeanor, rather than a felony, because they view the discrepancy in the law as unfair, said Clay Abbott, DWI resource prosecutor for the Texas District and County Attorneys Association. The group has not taken an official position on HB 218.

Possessions of one ounce and under make up “a huge number of our cases,” Clay Abbott said. “Nobody would be clogging up jails with this, nobody would be clogging up county court dockets with this. I would say a lot of prosecutors find that a very appealing idea.”

Prosecuting possession cases is complicated because of the limited availability of THC testing in Texas, especially at a time when certain hemp products like delta-8, legalized under the 2018 Farm Bill, are currently allowed in the state. A lawsuit over delta-8’s legality is ongoing, and at least one lawmaker this legislative session has sought to ban it, though that bill has not gone anywhere so far.

Hemp is defined under federal and state law as cannabis with a THC concentration of less than 0.3 percent by dry weight, while anything above that amount is considered marijuana, making testing imperative to prove guilt.

The Texas Department of Public Safety labs will only test plant materials, oils and vape cartridge — not edibles — and only for felony cases.

“Annually, there are more than 80,000 misdemeanor marijuana arrests made in Texas,” wrote DPS Chief Steven McCraw in a February 2020 letter to lab clients. “DPS will not have the capacity to accept those misdemeanor cases.”

The agency was able to expedite the process of setting up testing after hemp legalization caught many off guard a few years ago, but still, there remains a backlog of felony cases that need to be tested, and the agency seems to be prioritizing their own cases before those of other agencies, Clay Abbott said.

While prosecutors can try to seek out services from private labs, those also have very little availability, often swamped with federal and out-of-state jobs, Clay Abbott said. He said the lack of access to testing has deterred many prosecutors from taking these cases to trial.

A February University of Houston survey found more than 8 out of 10 Texans said they would support lowering the penalty for low-level marijuana possession. Most, or 67 percent, also said they would support recreational legalization.

The vote comes after the House earlier this month approved and sent to the Senate a bill that expands the state’s limited medical cannabis program to people with any condition that causes chronic pain for which a physician would otherwise prescribe an opioid and raises the limit to 10 milligrams per dosage unit.