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The Whole New World of Marijuana Cases

Criminal Defense Attorney Don Flanary, of the Flanary Law Firm, PLLC, recently sat down with News4SA Reporter Irene Cruz to discuss the status of a new Texas marijuana law and the legal effects of its implementation. The video can be found here: https://news4sanantonio.com/news/local/texas-marijuana-cases-thrown-out-after-hemp-law-change?fbclid=IwAR1wlFzNVxlug1aYtrMtYlyJGBhaLG6Xcy3-Nk8U3kIOW1XRLtqQWR0kDU0

“Law enforcement are at a loss for what to do. Prosecutors are at a loss for what to do.” Flanary explained in the News4SA article. But why? The answer is more complicated than one would expect.

On June 10, 2019, House Bill 1325 took effect. The Bill was designed to reduce restrictions on how marijuana is grown and utilized in Texas, namely, by legalizing “hemp.” Soon after, many legal experts, including Flanary, have claimed that the Bill may have decriminalized marijuana in the process.

As Flanary explained to News4SA, the main problem is that “hemp” and “marijuana” are essentially identical. When physically comparing a marijuana plant with a hemp plant, law enforcement and citizens alike cannot tell any difference, because they look and even smell the same. That is no surprise, considering both marijuana and help are “broad classifications of the cannabis plant,” as News4SA reported.

House Bill 1325’s new definition of hemp is found in the Agriculture Code and is defined as follows:

“In this chapter, ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

See Tex. Agric. Code Ann. § 121.001.

As explained in the Flanary’s interview, this means that hemp contains 0.3% or less tetrahydrocannabinol (THC) content by dry weight and is legal, but Marijuana contains more than 0.3% THC by dry weight and is considered illegal.

So, what’s the only problem with that? Flanary explained that the problem is Bexar County doesn’t have the lab equipment to test for the difference in THC levels. And, if they don’t have the equipment, how can they prove that marijuana is not legal hemp, and more importantly, how are they going to convict anyone of a marijuana offense in Texas?

As Reported by News4SA, Bexar County Criminal District Attorney Joe Gonzales says the testing equipment is in the works, but that it’ll take months before its fully operational. Gonzales also added that the focus will not be on minor amounts, but on “pushers” and “drug dealers.” Even so, the article also added that “local attorneys claim many of their marijuana cases are getting thrown out.”

News4SA also noted that CBD stores that sell hemp products have been popping up across San Antonio in recent months. As Wildseed Hemp co-owner Holden Hylander pointed out in the interview, they see many customers purchasing CBD to seek relief from medical issues.

Regardless of why Texas citizens are purchasing hemp, House Bill 1325 made the purchase legal. What that means for criminal prosecutions is a whole different story. As Flanary explains, while the former Texas law criminalized all possession of marijuana, the new law puts the burden on the state to prove that the person in possession is guilty of carrying an illegal amount of THC.

If you’re charged with a marijuana-related offense or have questions concerning the sale of hemp products and their legality, contact the Flanary Law Firm, PLLC, at (210) 319-4385 today.