By Katharine Neill Harris, Ph.D.
Alfred C. Glassell, III, Fellow in Drug Policy
The 86th Texas Legislature moved an inch — and no more — on easing some restrictions related to marijuana.
The session started optimistically for proponents of reform. Legislators filed a record-number 63 marijuana-related bills, and there was an outpouring of support for the various measures. Advocates, parents, caregivers, patients, veterans, medical professionals and policy experts (including your resident Baker Institute drug policy fellows) traveled to Austin to lobby for and testify in support of legislation to reduce penalties for marijuana possession and create a comprehensive medical cannabis program. Despite these efforts, and considerable media attention, only two bills made it to the governor’s desk: one related to hemp production and the other a very limited expansion of the state’s restrictive medical cannabis program.
Political calculations are largely to blame for the stagnation. Although polls consistently show that a majority of Texans support reducing penalties for marijuana possession and allowing medical access, approval for these measures is lower among more conservative voters, making it a difficult issue for elected officials from deep red districts to support. The arguments presented in opposition to penalty reduction and medical expansion, which mainly came from law enforcement groups and some conservative legislators during House and Senate floor debates, reflected a persistent tendency to conflate these reforms with full-bore commercial legalization, and either an inability or unwillingness to understand the marijuana plant itself and the different policy schemes in question.
Modest marijuana gains for Texans
One of the two bills to succeed in the legislature, HB 1325, authorizes the production of hemp and hemp-related products. This is a big win for farmers who can now grow a profitable product that is related to marijuana but contains zero psychoactive properties (legally hemp cannot contain more than .3% THC, making it impossible for someone to get high from ingesting it in any form or quantity). Past efforts to legalize hemp production in Texas failed, but in 2018 Congress passed the Farm Bill, legalizing hemp production at the federal level and likely persuading some previously skeptical state lawmakers.
Since the federal law change, trendy CBD products claiming to be derived from hemp plants have popped up all over the state, and have created confusion for consumers and law enforcement regarding their legality. HB 1325 clarifies that such products are legal (although there is no sure-fire way to determine that the CBD in a product comes from hemp and not marijuana), and subjects them to state regulation. Hemp is finally—and correctly—being treated as a product distinct from marijuana. Still, hemp will be much more closely regulated than other crops, both federally and in Texas, for the foreseeable future.
The other bill to pass, HB 3703, is a very limited expansion of the state’s very restrictive Compassionate Use Program (CUP). The CUP was signed into law in 2015, and under the original program only patients with intractable epilepsy could access a low-THC (.5% or less) CBD oil, and only after getting approval from two specialists. The bill’s language also required that doctors “prescribe” the cannabis oil, rather than “recommend” it, a problem because doctors violate federal law by formally prescribing the medicine. HB 3703 specifies that the “prescribe” language is limited to the context of the CUP, ostensibly protecting doctors from federal prosecution, removes the two-specialist requirement, and expands the list of qualifying conditions to include all epilepsy disorders, spasticity, multiple sclerosis, ALS, neurodegenerative diseases such as Alzheimer’s and Parkinson’s, terminal cancer, and autism.
By expanding the number of conditions that qualify for access to CBD under the Compassionate Use Program, and by easing some of the restrictions on obtaining a prescription, HB 3703 is a step toward improving the state’s limited medical cannabis program. But the arbitrary dose restriction of .5% THC remains in place, rendering the legalized medicine ineffective for a sizable portion of patients with qualifying conditions. Notably, PTSD was not listed as a qualifying condition, despite the large veteran population in Texas and impassioned lobbying from advocates to have it included. The low cap on THC means that those suffering from PTSD would be unlikely to benefit from the medicine authorized by the CUP anyway, because PTSD is a condition which research suggests benefits from a combination of THC and CBD. But its inclusion now would have increased the likelihood that it would be included as a qualifying condition under any future program expansions that remove the arbitrary THC cap.
Thirty-four states now have comprehensive medical marijuana programs that provide relief to millions of patients. Other bills that were introduced this session (most notably Rep. Eddie Lucio’s HB 1365), if passed, would have put Texas more in line with the rest of the country. Instead, Texas remains the largest of 12 states with limited cannabis programs, programs not typically considered medical marijuana programs because of how restrictive they are, and is now surrounded by four states (NM, AR, OK, and LA) that grant citizens greater access.
Finally, while it did not pass, a bill to reduce penalties for marijuana possession made it further along the legislative process than at any point since 1973. HB 63, which would have reduced the penalty for possession of an ounce or less of marijuana from a Class B to a Class C misdemeanor, with the possibility of avoiding a criminal record, passed overwhelmingly in the House but Lt. Governor Dan Patrick refused to allow the bill a vote in the Senate, despite Governor Abbott’s having signaled his support for marijuana penalty reduction.
Over 62,000 people were arrested for marijuana-related offenses in Texas in 2017. Ninety-seven percent of those arrests were for simple possession. The Texas Legislature’s failure to enact reform on this issue means those arrests, and the costs to taxpayers and collateral consequences associated with those arrests, will continue for at least two more years. Meanwhile, Harris, Travis, Bexar, Dallas, and several smaller counties have taken or are considering taking steps to reduce the impact of a marijuana arrest, indicating that the state government is increasingly out of step with local jurisdictions.
The legalization of hemp production, the small expansion of the Compassionate Use Program, and the House’s overwhelming approval of reducing penalties for marijuana possession, are significant wins for reform proponents. Still, it is disappointing and disheartening that thousands of Texans will continue to face the possibility of an arrest and criminal record for possession and that thousands others continue to be denied access to a substance that could bring them medical relief. But policy change is a slow process, especially in a large state with a part-time legislature that meets for only six months every two years. Over the last four legislative sessions, marijuana reform moved from the fringe to the mainstream, and there have been meaningful gains, rhetorically and politically if not always substantively. If current trends continue, and I suspect they will, that substantive change will eventually make its way through the Texas political process, albeit more slowly than some of us would like.