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If you live in the state of Texas, it’s very likely you’ve come across a news article or headline declaring hemp in Texas and hemp-derived products legal after Governor Greg Abbott signed House Bill 1325.

So, what exactly is hemp? Is it different from marijuana? Does this mean marijuana is legal? The short answer is “no” to the latter question, but the legality of hemp is causing a lot of confusion for Texans and legal prosecutors alike.

Hemp, the plant that ever-popular CBD (cannabidoil) oil is derived from, is a cousin to marijuana with one key differentiator; THC levels. The psychoactive compound tetrahydrocannabinol (THC) in marijuana is what gives users the “high” associated with marijuana, but hemp has very little THC, usually less than 0.3%, and is primarily used for industrial purposes. Federally, hemp has been removed from its list of Schedule 1 controlled substances, and Texas followed suit on April 5th of this year, when the state also removed hemp from their Schedule 1 controlled substances list.

After hemp was removed from its list of controlled substances, Texas decided not to join the 42 other states in the U.S. that allowed industrial hemp production, and the state law actually defined marijuana and hemp as the same plant, effectively making any the plant and any products derived from either, illegal.

But, with the introduction of House Bill 1325 by Representative Tracy King, and ultimately the passing of that bill into a law, it has blown open the door for Texas farmers who want to cash-in on the plant and its booming popularity and get federal hemp cultivation permits, as well as for people who sell and produce products featuring CBD oil and other hemp-derived products.

However, don’t get it twisted, “This is no slippery slope toward marijuana,” said Senator Pete Flores to The Dallas Morning News. “I want to clarify so the people of Texas know-this is not legalized marijuana,” added Texas Senator Charles Schwertner.

Since the implementation of the new hemp law that was immediately put into effect upon its signature by Governor Abbot on June 10th of this year, the criminality surrounding marijuana has come into question.

Under House Bill 1325, the sale, transport, product, growth and use of hemp is entirely regulated as an agricultural or consumer product, though the rules and regulations that will be put in place by the Department of State Health Services (DSHS) and the Department of Agriculture (TDA) haven’t officially been applied. Yet, there are attempts to give direction to police offers on how to handle enforcing the new law under the Agricultural Code. According to this code, a police officer can request documentation proving that any hemp product is legal and legally transported and possessed. Police officers can also seize any product for which there is probable cause for the officer to believe it may be marijuana, or hemp that does not meet the regulations (such as THC levels) under House Bill 1325. Law enforcement officers are also allowed to collect a sample of the product found to determine the THC content, but that’s where things get even more tricky.

Since House Bill 1325 was signed into law this June, some county prosecutors in Texas have been dropping both misdemeanor and felony marijuana charges due to a citation of insufficient laboratory equipment to test the THC levels to determine if a substance is illegal marijuana or legal hemp, as well as the amount of time it would take to test every single substance for THC content. This unintentional decriminalization, for all intents and purposes, has had an effect on not only Texas, and other states, like Florida, have run into similar issues.

In fact, according to The New York Times, “The Travis County district attorney, Margaret Moore, announced this month [July] that she was dismissing 32 felony possession and delivery marijuana cases because of the law.”

The New York Times also reports on the difficulties the laboratories who usually test cannabis for a THC confirmation that “has long been required” to prove guilt according to Kim Ogg, the Harris County district attorney.

“Before the legislation went into effect, laboratories had to identify hairs on marijuana flowers and test for the presence of cannabinoids, a process that required just a few minutes and a test strip that turned purple when it was positive. Because the new law distinguishes between hemp and illicit marijuana, prosecutors say labs would now be require to determine the concentration of THC in the seized substance.”

This is easier said than done, and The New York Times reports that there are only two labs in the entire country that can make the distinction, and that they are both privately owned, making the test cost per sample run into the hundreds of dollars. This just isn’t practical for the state of Texas to send every single sample of suspected marijuana to the few labs that are equipped to handle such a task.

Regardless, House Bill 1325 determines that neither the Department of Agriculture nor the Department of State Health can allow regulation that would make hemp legal for smoking or vaping in the state of Texas, and it also dictates that for someone to be in legal possession to transport hemp, they must have proper documentation on them at all times. If there is no paperwork, or any other regulations are being violated by the individual, law enforcement officers can legally assume that the product is illegal marijuana and can take further action.

Even if the substance in question ends up being legal hemp, as of July 2019, there are still criminal violations in place when proper documentation isn’t obtained, including a Class C misdemeanor, and up to a $1,000 fine, for improperly transporting hemp.

While the future of hemp and marijuana in Texas is still a little hazy as of now, time will tell how the state government plans on handling hemp and marijuana discrepancies and legality in the long run.

Thank you for visiting the Jarvis, Garcia & Erskine blog. We write to inform Austin locals about law changes, events and news.