Austin To Consider Stopping Arrests & Tickets In Low-Level Marijuana Cases

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Four progressive members of the City Council are pushing the proposal, which needs two more votes to pass.

As Texas law enforcement grapples with how to determine whether a substance is marijuana after lawmakers legalized hemp last year, one city’s officials are putting forward their own solution: effectively decriminalize possession of small amounts of pot altogether.

The Austin City Council will vote on a proposal later this month that, if approved, would “virtually end arrests and fines” by city police for possession of personal amounts of cannabis, according to a summary and copy of the measure obtained by The Texas Tribune.

The resolution, raised by four progressive members of the 11-member council, would largely direct police to stop arresting people or issuing citations in low-level marijuana possession cases in which officers won’t be able to get lab reports to chemically distinguish between now-legal hemp and illegal marijuana. It also would forbid the city from spending funds or using its personnel to perform such tests.

“If there’s no intent to sell or distribute, we’re not going to mess with it,” said Greg Casar, the lead sponsor of the proposal.

The move is a direct result of lawmakers’ legalization of hemp last June, the resolution states. That state law, focused on implementing a hemp agriculture industry in Texas, also narrowed the definition of marijuana from the cannabis plant to cannabis that contains more than 0.3% THC, the psychoactive ingredient in the plant that produces a high.

The change in statute has led numerous Texas prosecutors, including those in Austin’s Travis County, to require lab reports on THC concentration levels before pursuing misdemeanor marijuana charges. They similarly argue circumstantial evidence like smell can no longer be used to authoritatively say something is marijuana.

Near Amarillo last month, for example, a man was arrested and jailed for a month on suspicion of hauling 3,350 pounds of marijuana, but testing and a lab report revealed the substance was in fact legal hemp.

El Paso’s district attorney has claimed this testing is not essential, and Gov. Greg Abbott and other state leaders bolstered his argument in a letter chastising prosecutors for dropping low-level marijuana cases or putting them on hold after the new hemp law. The hemp bill’s Senate sponsor said prosecutors have used the law as political cover to essentially legalize marijuana in their counties. Abbott did not immediately respond to a request for comment on Austin’s proposal.

Still, many prosecutors are requiring the piece of paper from a crime lab, and Texas’ government-run labs haven’t quite yet ironed out a method for testing hemp versus marijuana. They are able to determine if THC is in a substance, but not how much. In the meantime, new misdemeanor pot cases are being rejected by some prosecutors or held in limbo waiting for lab testing.

But that doesn’t mean police have stopped arresting or citing people, including in Austin. Some people are still taken to jail but then released, and no charges are pursued.

Some city police departments are paying more money to utilize the few private labs that can perform such testing. For example, Plano’s City Council in North Texas and Montgomery County’s commissioners near Houston have both approved providing more funding for local law enforcement to acquire these new tests that weren’t often required in personal-use pot cases before.

Casar said Austin shouldn’t be spending taxpayer money on the issue.