What if lawmakers writing one of the most consequential laws to come out of last year’s legislative session, legalizing hemp in Texas, forgot to include a small, but crucial detail that could get your marijuana possession charges dropped?
That’s what happened last week, after a Brazos County court judge concluded the new law omitted a date typically included in state crime legislation. As a result, misdemeanor charges against a Texas A&M University student arrested on the day of his 2018 college graduation were summarily tossed.
The decision is the latest stumbling block that Texas’s nine-month-old hemp law has presented for police and prosecutors committed to pursuing low-level marijuana possession cases. Although the decision does not bind other judges, attorneys said the successful tactic had the potential to change the course of hundreds of pending cases across the state.
New state crime laws always include a clear dividing line, typically written as a date, said Shannon Edmonds, director of governmental relations for Texas District and County Attorneys Association. Before the date, the old law applies; after, the new law does.
Yet the hemp bill, which was passed through the Agriculture and Livestock Committee instead of the regular criminal justice panels, neglected to specify when the new pot definition started. A little-known provision of Texas law says that without clear transition instructions, if a new law lowers the penalty for a crime it can be applied retroactively.
The district and county attorneys association noted the missing language early on. “The law went into effect on June 10, 2019, but it is unclear whether it applies to previously-filed marijuana cases pending on that date,” it warned In a June letter to member prosecutors.
The bill’s sponsor, Rep. Tracy King, D-Batesville, did not return a call to his office seeking comment on the AWOL date.
Criminal defense attorneys noticed it, too, and began seeking cases to test if the new law could also be used to challenge older possession charges.
Long story short, they found a defendant in College Station who wanted to have his day in court, and their argument that the new law applied resulted in the dismissal of the case because the cops hadn’t tested the pot they said they found. Testing is another problem for prosecutors, and the DPS has said they don’t have enough money to handle the demand from the locals, leaving them in limbo. Which is fine by me. Let’s keep this natural experiment going and see for ourselves once and for all how little there is to fear from not being hardasses about weed.