When Texas Governor Greg Abbott signed a bill into law that legalized the cultivation of hemp in the state, dozens of district and county attorneys announced that they would stop prosecuting low-level marijuana cases. These prosecutors were not taking a stand on the issue of marijuana legalization, they were choosing to avoid pursuing cases they did not believe they could win. Crime labs in Texas are not currently able to determine with accuracy the THC content of marijuana, which means that prosecutors are not able to prove beyond a reasonable doubt that the substance a marijuana defendant was caught with was marijuana and not hemp.

The Texas Forensics Science Commission has been working on the problem with the Drug Enforcement Administration, and a new testing method is expected to be available to prosecutors in early 2020. According to the agencies, the new test will be able to determine whether a substance has a THC concentration higher than 1%, which is more than is permissible in hemp. Most of the marijuana at the center of narcotics cases has a THC level far higher than 1%.

Private labs are also working on a new marijuana test. A lab in Austin has developed a machine that breaks down plants and provides detailed information about the cannabinoids present. The lab currently does testing work for multiple states, including California, Virginia and Tennessee, and it has offered to provide the same service to Texas. The company says that it is also prepared to sell the machines.

Low-level drug charges stretch an already overburdened criminal justice system and distract prosecutors from more important cases. When their clients are charged with petty narcotics crimes like marijuana possession, experienced criminal defense attorneys may urge prosecutors to dismiss the charges entirely or settle for a small fine even if more sophisticated forensic testing methods do become available.