District Attorney Luke Inman from the 100th Judicial District, a five-county district around Amarillo in the Texas Panhandle, discussed the problems created by unclear laws in place relating to the decriminalization of marijuana and its derivatives in some states last Thursday at the Kerr County Sheriff’s Office training facility.
His chief assistant, DA Harley Caudle, accompanied him to help train interdiction officers, K-9 officers and other law enforcement personnel from around the state during the session.
Inman said decriminalization laws vary from state to state, but that Texas laws are less complicated than in many jurisdictions.
He discussed the probable cause limitations that are in place in many states that make it difficult for law enforcement agencies and prosecutors to move forward with prosecution of persons found in possession of marijuana and other controlled substances.
“Thank goodness we are not there yet,” Inman said, “because we can still use probable cause to search in Texas.”
Caudle pointed out that the federal authorities do things very differently in enforcing the federal drug laws including limitations on the use of K-9s (specially trained dogs) in the search process.
“No court cases yet say that K-9s cannot be used in a search if there is probable cause,” Caudle said.
The goal of the training session by the Amarillo DA office personnel was to help the law enforcement attendees make cases better for prosecutors.
They stressed that the wording in reports submitted to the prosecutors often made the difference in whether the case could move forward in the justice system.
“Each and every district you work for is going to be different,” Inman stressed. They also suggested that law enforcement officers meet with prosecutors and judges in their jurisdiction to discuss best practices for getting a successful conviction in cases submitted.
The Texas Legislature in their 2019 session approved the “hemp statute” making the possession of the derivative of the marijuana plant legal in Texas if the hemp product is less than 0.3 percent THC.
All of the states in the U.S. now have laws legalizing hemp. The law in Texas can be found under the Texas Agriculture Code Section 121.
Although the law went into effect in 2019 the Department of Public Safety laboratories did not have the technology to test the strength of seized hemp/marijuana products for almost 18 months after the law went into effect, so counties and cities making seizures had to rely on more-expensive testing by private labs to determine whether the substance was illegal.
Legal hemp comes in two forms, Delta 8 and Delta 10, but Delta 9, also derived from legal CBD is over the 0.3 percent level. The legislation has created a real question of whether possession is enough for an arrest. The prosecutors added that prosecution is challenging because of the difficulty in determining which level of Delta the substance may be and makes it very difficult without laboratory verification.
Inman said in the Texas Panhandle area where he prosecutes cases also has to deal with people who are arrested for possession who are traveling from other states where laws are different. The new law requires persons traveling with legal hemp to have a shipping certificate or cargo manifesto issued by the state of Texas, but no such forms have ever been developed in the four years since the law was passed.
“A producer’s license does not allow them to transport hemp,” Inman said, “so if the hemp is produced out of Texas they must have the form from the state showing the origin of the product.”
Falsification of the documents in Texas is a third-degree felony.
Inman said there are sometimes issues of civil rights on traffic stops and being able to prove probable cause which sometimes lead to lawsuits, but encouraged the officers to “do your job” and let the courts and justice system deal with the issues.
He pointed out that hemp is often packaged like marijuana and only a lab can determine the actual kind of product seized.
“Nothing in the law in Texas prohibits hemp from other states to be transported (legally) into Texas and sold. So you could bring an 18-wheeler loaded with hemp and deliver it to all the little gas stations around the state and nothing can be done about it under current Texas law.”
Inman also stressed that money-laundering cases can sometimes be developed from possession cases, but stressed the importance the putting all the details of the search into the report submitted for prosecution.
Caudle and Inman compared the issues with Delta 8 with the K-2 issues in the past. Many people who abused K-2 suffered permanent damage to their mental and physical health. K-2, like Delta 8, was available at local merchants for a long time before it was made illegal.
“The legislature must change the law to make Delta 8 illegal in Texas,” Inman said.
A total of 14 states have prohibited Delta 8 sales in recent months. Veterans groups are loudly opposing any legislation prohibiting Delta 8 in the current Texas legislative session citing that Delta 8 is used by many veterans instead of more addictive opioids to relieve pain and other symptoms. They are sold as gummies and are packaged and available in vending machines in many areas of the state.
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