Houston Area DAs Still Unclear About Legal Hemp

By: Matt Horak Attorney At Law | Published 07/14/2019

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Hemp is a strain of the cannabis plant that has been grown and used for its fiber since before human civilization existed. The plant’s strong fiber can be used to create paper, textiles, clothes, food, and fuel among other things but has only this year been made legal to cultivate and exploit. The Texas legislature has passed HB 1325 to create laws that will allow farmers to grow hemp and while some counties are ready to embrace a new industry, others are still stuck in the past.

Hemp History

Hemp, along with marijuana, was driven out as a crop and then outlawed starting with the Marihuana Tax Act of 1937. It is theorized by some historians that William Randolph Hearst, the Du Pont Family, and Andrew Mellon conspired to outlaw all forms of cannabis to eliminate the hemp industry.

Marijuana was portrayed as a dangerous drug and while hemp plants and marijuana plants are derived from the Cannabis sativa plant, there is one big distinction which is that hemp has very low concentrations of THC, the chemical that causes psychoactive effects. With so little THC, a person would be unable to get “high” from smoking the plant. Regardless hemp was eventually outlawed along with marijuana.

But as the public has become more educated and more willing to legalize marijuana, it has also made more sense to legalize hemp. The federal government legalized the plant this year and HB 1325 has created a legal framework to cultivate the plant in Texas.

Marijuana Prosecution Now

Since hemp is now legal and marijuana is still not, prosecution for cannabis offenses becomes a bit more complicated. Since hemp plants and marijuana plants look the same it would be hard for law enforcement to make judgments on whether someone should be arrested for marijuana possession without know if what they are holding is even marijuana.

In an attempt to clarify the confusion, Harris County district attorney Kim Ogg has instituted a policy whereby her office will not accept criminal charges for misdemeanor possession of marijuana without a lab test result that shows the marijuana has a THC concentration over 0.3%. The 0.3% cutoff is based on how Texas statutorily distinguishes between hemp and marijuana. Ogg’s new policy should make the procedures for charging someone in possession much more clear.

Just next door in Montgomery County, however, district attorney Brett Ligon issued a statement that his office will not change their arrest policies at all. Ligon reasons that police officers will learn to distinguish between marijuana and hemp just by determining for themselves whether they believe a person intends to smoke the plant. That is in stark contrast to Ogg’s decidedly more scientific method of differentiating the two plants.

Ligon’s method would undoubtedly create problems. Perhaps it would be foreseeable that a police officer that sees a person loading a pipe with a cannabis flower would have probable cause to make an arrest but what if an officer comes across a person who is growing cannabis. How would the officer know whether it was being grown for smoking or for producing cloth without testing it?

If a person is transporting cannabis flowers and seeds in their car for hemp cultivation purposes, how would an officer determine whether it was meant to be smoked or not? Montgomery county could end up harassing and arresting innocent people who are simply trying to take advantage of a new industry.

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