Fort Bend County District Attorney Brian Middleton reiterated that effectively prosecuting misdemeanor marijuana cases is cost-prohibitive.

Middleton issued a written statement in response to a highly publicized letter from Texas’ top officials that instructed district attorneys across the state to continue prosecuting misdemeanor marijuana cases. In the letter, Gov. Greg Abbot, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen and Attorney General Ken Paxton rebuke district attorneys in at least five counties, Bexar, Harris, Fort Bend, Nueces and Tarrant, for taking actions that they see as being in conflict with the law.

In June, the district attorneys announced that they would either no longer be accepting new misdemeanor marijuana cases or would be dropping some misdemeanor marijuana cases that are currently working their way through the courts.

The letter Texas’ district attorneys received instructs them to continue pursuing misdemeanor marijuana convictions, despite the fact that Texas law differentiates illegal marijuana and legal hemp by 0.1% THC content.

“Marijuana has not been decriminalized in Texas,” reads the letter. It goes on to state that “as Judicial Branch Members, [district attorneys] should continue to enforce those laws.”

Middleton’s actions, and the state officials’ response, stem from the Texas Legislature’s passage of HB 1325 this year, legalized hemp production in the Lone Star State. Texas law now defines a cannabis plant as hemp if it has less than 0.3% of THC. If a cannabis plant has 0.3% or more of THC it is considered marijuana.

The difficulty in proving marijuana possession for law enforcement officers and prosecutors comes from the specificity in the amount of THC in a cannabis plant, according to Middleton. Prior to the passage of HB 1325, authorities only needed to show marijuana was present in a plant for it to be considered marijuana.

“Texas law allowed a properly trained officer to provide expert testimony as to whether a substance was marijuana,” Middleton’s written statement reads. “Now, considering the new definition, of marijuana, our officers will not likely be able to make that determination.”

Without law enforcement testimony, prosecutors will be required to provide lab tests to prove that a cannabis test is in fact marijuana.

“There is only lab in the country certified to perform those tests and they cost about $500 apiece,” Middleton said in a phone interview.

Because there is just a single lab certified to test THC potency, there is a lengthy backlog to get test results, he added.

That backlog was influential in the decision to dismiss some of the county’s misdemeanor marijuana cases, Middleton wrote “Under the circumstances, we concluded that it was unfair and unethical to further prolong those particular cases,” the statement reads.

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