New Texas hemp and CBD law could snuff out marijuana prosecutions

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ByTed Oberg via KTRK logo
Tuesday, July 2, 2019
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Under old laws, potency didn't matter. Now that hemp is legal, it does matter...and hundreds of marijuana cases have already been dismissed under the new law.

HOUSTON, Texas (KTRK) -- Texas expects to make millions off the CBD oil boom.

To make it legal, the legislature passed and Gov. Greg Abbott signed a new law creating a THC limit to tell the difference between legal hemp and illegal marijuana.

Apparently the legislature didn't realize crime labs in Texas can't test THC concentrations. The bill came out of the state House's Agriculture Committee and devotes most of its effort to rules for hemp farmers -- not police officers and prosecutors.

Already, hundreds of marijuana cases were dismissed in Fort Worth. In Fort Bend, Montgomery and Walker counties, cases are on hold while testing is developed. Harris County is reviewing policies, but sends most of these cases to a diversion program under District Attorney Kim Ogg.

Inside the Houston Forensic Science Center, where technicians test marijuana every week, scientists look at the plant under a microscope to detect small hairs unique to the Cannabis Sativa plant. A quick chemical test detected only the presence of THC, the potency was never captured. It didn't have to be.

Under old laws, "it didn't really matter (how potent it was)," said Peter Stout, president and CEO of the Houston Forensic Science Center, which tests criminal evidence in Houston.

Now that hemp is legal, it does matter. The microscopic analysis is not helpful as hemp and marijuana are the same plant and look identical under microscopic analysis, according to lab technicians.

One option is to send the cases to private labs, which can test THC concentrations already. Those tests can run from $200 to $750 per case, 13 Investigates learned. Last year, statewide figures show Texas district attorneys prosecuted more than 69,743 misdemeanor marijuana possession cases. The cost to send them all to private labs could be as high as $35 million.

The Texas Department of Public Safety told lawmakers it would cost them more than $4 million per year for increased training, equipment and personnel.

Houston's forensic science center estimates hundreds of thousands of extra dollars will be needed to comply with the law here. Stout told 13 Investigates, "Instrumentation is a few hundred thousand dollars; validation and method development is going to take some months and other hundreds of thousands."

As scientists tried to comply with the new law, the Houston lab stopped testing marijuana for a week in June. Now that it's resumed, technicians are adding a written warning to lab reports that the tests don't report what the new law says it should.

If questioned in court whether a sample is hemp or marijuana, Stout says his team would have to testify, "It might be hemp, it might be marijuana... Our testing doesn't distinguish under this definition."

The Harris County Institute of Forensic Services tells 13 Investigates it has the technology, but needs to train personnel and validate procedures which could take months.

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