A large-scale raid of local smoke and vape shops where police say illegal hemp products were being sold has been challenged by an attorney and some affected by the raid.
Dozens of officers from multiple departments conducted an "evidentiary search" of eight shops on June 13, seven in Temple and one in Belton. Officials said they confiscated products to test for illegal amounts of THC, or tetrahydrocannabinol, the psychoactive ingredient in marijuana.
An attorney who has represented dozens of clients fighting for their businesses and livelihoods after similar raids said these law enforcement actions are political. And he says the tests used by law enforcement to determine THC levels in products are confusing and inaccurate.
David Sergi of Sergi & Associates, who has represented businesses in hemp-related cases, said it is the test itself — which uses high levels of heat — that chemically alters the legal THCa into the illegal THC that is found in marijuana.
“Basically, THCa turns into Delta-9 and the law looks only at Delta-9,” Sergi said. “The heat causes a chemical change and essentially creates an illegal substance from a legal one.”
Sergi said that in more than 50 cases such as these involving smoke and vape shops, he has only seen one charge filed and it had nothing to do with THC.
“In my personal opinion, they’re (police) going to try to forfeit the items that they seized and financially break my clients with forfeiture," Sergi said. "We are going to vigorously contest it and probably file a civil rights action at the appropriate times.”
Following the recent local raid, which included 65 law enforcement personnel, the Temple Police Department said in a press release that officers had purchased numerous items that claimed to be in compliance with the law for selling THC-related products.
Temple Police said these items were then tested at the Department of Public Safety Crime Lab and the NMS Laboratory, which is an approved lab by the Department of Public Safety. Belton Police Department used Armstrong Laboratories to test items recovered by officers.
Following the raid, police highlighted a specific product caught up in the search.
The results from every shop tested, according to police, showed that the products referred to as “flower” were not in compliance with the 2018 Hemp Farm Bill as labeled, and tested positive for marijuana over the allowed 0.3%.
“Additionally, multiple shops that claimed to be selling THCa products produced a lab result of Delta-9,” police stated. “These lab results confirmed that some of the products displayed in these smoke and vape shops are mislabeled and not actually in compliance."
Cannabinoids, substances found in the cannabis or hemp plant, include Delta-8 THC and THCa, both legal substances.
THCa, non-psychoactive, is the cannabinoid that appears before THC. THCa converts to psychoactive THC when heated.
Sergi countered the law enforcement assessment following the raid and pointed to a Texas Forensic Science Commission report released this year.
“Texas Forensic Science Commission has undermined and eviscerated the type of testing used at (Department of Public Safety) and Armstrong labs,” Sergi said. “I would say it is completely political and the (district attorneys) that I have talked to aren’t thrilled with these cases.”
The Bell County District Attorney’s Office did not return the Telegram’s calls regarding this matter.
A cautionary explanation of the testing process to determine the illegality of a THC product was provided in an April meeting of the Texas Forensic Science Commission.
“Some (labs) are running a GCMS (Gas Chromatography-Mass Spectrometry) method that does not allow that distinction (between THCa and THC), DPS being among those labs,” Lynn Garcia, general commission member, said during the April meeting. “DPS is not testing, they suspended their testing, and that is going to contribute to a pretty significant backup of cases and symptoms which does not help anyone.”
DPS did not respond to the Telegram’s inquiry regarding department testing.
The commission referenced in a report how the gas chromatography-mass spectrometry (GS-MS) test applies heat during a test to separate different substances.
According to the commission, in labs that use GC-MS to test hemp, or THC, products that are heated by the the testing equipment result in decarboxylation — chemically converting legal THCa into illegal Delta-9 THC.
“In other words, a plant or liquid item of evidence containing CBD can arrive at the laboratory with a certain amount of Delta-9-THC, and that amount can be increased by the high heat used in the testing process,” the commission stated in a report.
When asked about these issues, the Temple Police Department referred the Telegram's questions to the Department of Public Safety, which has not responded.
The Belton Police Department defended the testing methods in investigations.
“We have confidence in the integrity of the results we receive from Armstrong Forensic Laboratory,” Cristina Waits, spokesperson for Belton Police Department, said.
“Armstrong is fully accredited and inspected regularly, which ensures that test results are as accurate as possible," Waits said. "Additionally, after results are received, we collaborate with the District Attorney’s office through a screening process. Then, the appropriate charges are determined based on that investigation.”
There has been no notice of charges against the local vape and smoke shops raided by police.
“The Texas Forensic Science Commission has repeatedly cautioned law enforcement and prosecutors about the limitations of certain lab methodologies used in cannabinoid testing, including the improper use of gas chromatography without derivatization, which can convert non-psychoactive THCa into Delta-9 THC and produce misleading results” Sergi said. “Despite these warnings, the state continues to build cases on questionable science.”
The commission has nine members, all appointed by the governor of Texas. Seven of the members are scientists and two are attorneys — one prosecutor and one defense attorney. The commission’s presiding officer is designated by the governor.
Texas Gov. Greg Abbott may settle the legality of all THC products this weekend.
Abbott has until midnight today to address the controversial Senate Bill 3, which will essentially ban all THC from being sold in smoke and vape shops.
SB 3 passed through the Texas House and Senate and was sent to Abbott’s desk on May 27. The bill can be signed into law, vetoed, or go into effect with no signature by the governor.
The bill focuses on the regulation of products derived from hemp, including consumable hemp products and the hemp-derived cannabinoids, including THC, contained in those products.
SB 3 will impose one of the most comprehensive bans on consumable hemp products in the country, to include all products containing any measurable amount of THC or other natural and synthetic intoxicating cannabinoids.
Local and state law enforcement have been advocates for SB 3, backed by Lt. Gov. Dan Patrick.
While non-intoxicating cannabidiol (CBD) products remain legal under SB 3, current testing methods used by law enforcement could affect businesses who are legally selling CBD products.
“We sell zero THC products and we could still be shut down,” Judy Corrigan, owner of Centex CBD in Belton, said. "We sell other healthy cannabinoids for sleep, relaxation, and mood boosters."
Corrigan's business was not included in the local raid.
Until the governor decides one way or the other on SB 3, the future of hemp businesses is up in the air and may go up in smoke after midnight today.