How Texas Accidentally Legalized Marijuana
Is Marijuana Legal? No, but . . .
In an attempt to jump in on the hemp gold rush (i.e. make lots of money) and legalize the cultivation, manufacturing, transportation and sale of hemp products, Texas legislatures have indirectly handcuffed police agencies and prosecutors in their ability to prosecute marijuana charges.
You may have never seen a drug lab report, but as a Cannabis and Criminal Defense Attorney, we have seen many. If there is THC in the tested substance, it is marked positive. In other words the THC is qualified, but not quantified (think pregnancy test, you either are or are not). Currently, Texas law enforcement agencies and their accompanying labs do not possess the necessary instruments to test the amount of THC in any given marijuana product. Without a quantified amount of THC, police and prosecutors do not know if the seized product is in fact illegal marijuana and punishable under the Texas Controlled Substance Act or legal hemp, which has since been removed from the Texas Controlled Substance Act.
District Attorney offices and law enforcement are scrambling (much like Tennessee and Virginia earlier in the year). The hope is to have the necessary marijuana testing equipment in the next year. The reality is it could take substantially longer. It’s also going to cost a lot of money, like a few million.
Other labs (outside of Texas) that can quantify THC, can only do so on a limited basis and this does not include lotions, oils, and edibles. Also for any lab report to be admissible under Texas law, the testing lab has to be accredited by the State of Texas. Currently, we are unaware of any labs capable of testing THC amounts in marijuana that are also accredited.
How Texas counties are handling marijuana criminal charges
To date, Harris County, Ft. Bend County, Waller County, Nueces County, Travis County and Tarrant County have issued public statements they will not be arresting and prosecuting low amount marijuana cases. Felony marijuana amounts, will be looked on a case-by-case basis. Montgomery County, Brazoria County Galveston County, Brazos County, Grimes County and Bexar County have taken the opposite approach, issuing statements they will continue to prosecute all marijuana arrests.
An Accused’s Right to a Speedy Trial.
The problem counties like Montgomery will run up against, is not only the aforementioned marijuana testing and lab issues, but the Constitutional requirement afforded to all accused, the right to a speedy trial. A prosecutor can not ask for a one or two year reset on a case and not violate this Constitutional right . . .if defense attorneys are on their game.
Texas Evidence Requirements for Forensic Testing
Some of these counties have said they will seize the marijuana, hold it, eventually test it and file charges at a later date. This again is likely to have evidentiary problems. Forensic analysis have to meet the requirements set forth by the Texas Court of Criminal Appeals in State v. Kelly. Our belief and with the unexpected twists, turns and newness of it all, proper marijuana testing procedures and protocols are unlikely to be followed, either because it is impossible or because law enforcement agencies won’t know better.
So while marijuana is not legal in Texas, those responsible for arresting and prosecuting have an uphill battle to say the least.
If you need a Houston Drug Criminal Defense Lawyer, contact the Adamo & Adamo Law Firm
Crimination Camps
Barbed wire, watchtowers, and guards.
Unjust punishment and dehumanization.
Uninhabitable conditions.
Propaganda and financial incentives.
Mass incarceration.
Confinement without trial.
Many Americans living in the United States during the 1930s and early 1940s, didn’t think much about Germany. Little weight was given to secondhand reports. Confirmed reports were thought to be exaggerated and beyond-belief. It wasn’t until 1945 that Americans began to grasp the devastation left behind. By then it was too late. Millions had perished.
Unfortunately, we are often too late. Philosophical studies have concluded human beings are overwhelmingly cooperative. Our need to cooperate can lead us to turn a deaf ear on issues that don’t immediately impact us. Out of sight, out of mind. It isn’t until we are personally affected that we find ourselves in disbelief. Desperate for a solution to unjust punishment.
But, this isn’t about philosophy and this isn’t about the Third Reich, We aren’t going back in time. We don’t have to because all of the above can be found right here in the American justice system; the Texas justice system; the Harris County Justice system.
The Rise of Bail: The Beginning
Bail is an old-school tool originally used to assist in ensuring a person accused of a crime would appear for court. The theory was if a person put up their own money they were more likely to show up. Seems logical, although an outstanding warrant also seems logical.
Eventually, “entrepreneurs” discovered there were financial incentives tied to bond and formed bonding companies. A bonding company guarantees the bond for a non-refundable fee around 10% of the bond amount (although some bonding companies have been known to charge as much as 100% of the bond). If the accused fails to appear the bonding company is on the hook. Meaning, the original use of bail doesn’t even apply in today’s system.
When a person is arrested, they appear in front of a magistrate who assesses bail. Harris County magistrates rubber-stamp the amount from a bail schedule. While Texas law allows for personal recognizance bonds (zero money down), they are only used 7-8% of the time in Harris County. Once the bail amount is set, the accused (or accused’s family) is responsible for getting the necessary funds together to post bail.
In Harris County it is estimated up to 77% of the jail is made up of persons accused (emphasis on accused) of crime and
awaiting trial. Many of these accusations (emphasis on accusations) are low-level, non-violent offenses. Those unable to afford bail are left to sit. Mass incarceration.
Looking for the quickest exit, jail residents ignore collateral consequences attached to a criminal conviction by pleading guilty to crimes they did not commit. Doing so ensures they can get back to their homes, families, and jobs. It is a primary reason 95% of arrests end with a plea of guilty and is used to keep the court’s docket moving. Confined without trial.
In the last ten years, there have been nearly 200 deaths reported in the Harris County Jails. Knowing 77% of the jail is made up of Houstonians awaiting trial, 150 of those deaths are likely people with no business being in jail at all. These deaths have come at the hands of other inmates, uninhabitable conditions, disease, suicides, understaffed jails, and negligence.
The Axis Powers: Bail and Bail Conditions
The eradication of the presumption of innocence does not end once bail is posted. Certain accusations, carry with them bail conditions. Conditions the Texas Court of Appeals has held are necessary to secure the accused’s presence at trial, the safety of the victim, or the safety of the community. Burson v. State, 202 S.W.3d 423, 425 (Tex. App. – Tyler 2006, no pet.).
Take the real-world example below. One person has been convicted of Driving While Intoxicated and sentenced to a year probation. The other has been arrested for Driving While Intoxicated, posted bond, and been given bond conditions. Neither person has any prior criminal history. Disturbing is the inability to tell the difference.
Progressive leaders and civil right lawyers have recently made a strong push to rid of bail. As a result, many states have turned to personal recognizance bonds for an alternative. While this is a step in the right direction, as bail slowly diminishes pre-trial bond conditions are becoming more prevalent. When one door closes, another opens. Interlock devices, like the example from the DWI above, are cash cows with huge financial incentives.
Assume every person accused of DWI in Texas was ordered to have an interlock device as a condition of bail:
- Number of DWI arrests in Texas in 2015: 65,609
- Average Length of Time DWI is on court’s docket: 3 months
- Avg. Interlock Monthly Maintenance and Calibration Fee: $60
- (Monthly Fee * Docket Length) * # of DWI arrests = Total Interlock Fees.
- ($60 * 3) * 65,609 = $11,809,620.00 a year in interlock fees.
Throw in installation fees and that number grows.For interlock providers and investors business is good. Real good. As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late.
As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late. Act, before someone you care about, has their number called. Act, before your number is called.
The Old School Way
A former basketball player has come and gone from the nearby office. Once a tough kid living in unforgiving circumstances, he was shown an alternative way, one that doesn’t end in prison or death. The visitor is just one of many that drop by weekly to say hello, seek advice, or give thanks to the person responsible for saving their life. Inside the office, the décor mirrors the resident, the result of removing an Italian from New York into the heart of the South fifty years ago. If the main course is spaghetti, the dessert is apple pie. Nearly forty-five years of devotion to criminal law spill over the edge of the Texas-sized desk in the form of statutes, files, and ineligible yellow legal pads.
With each blog deadline approaching, I walk next door and ask,
“Want to write a blog this month?”
I know the answer. He has much to tell, but the old school in him won’t allow it.
“I don’t blog.”
Since joining his practice nine years ago, I have been fortunate to soak up seven years experience as an Assistant District Attorney during the Johnny Holmes era. I can smell the cigar smoke on Judge Jimmy Duncan’s breath as he denies another objection. I can hear the former client’s voice seeking advice on entering witness protection. The lawyer had acquitted him of one murder; the government was willing to pardon him of fifteen. I can feel the emotional argument in front of the Texas Court of Criminal Appeals. Yes, I am fortuitous to share offices with someone who constantly reminds me “he has forgotten more than I know.”
True to his word Sam Adamo (Sr.) has not blogged, nor do I expect a blog anytime soon. However, if you were a young (or older) attorney seeking advice, here are some things he would tell you.
I. “You can’t lose a client you never had.”
I remember one of the first cases I brought in. A consultation was scheduled, and the potential client was on his way. The contract was as good as signed. Toward the end of the meeting, the potential client said, “I plan on retaining your firm, but am meeting with two other attorneys. I’ll call you later tonight.” That call never came. The next day, I slammed open his office door, “Can you believe I lost that client.” Staring down at the Texas Penal Code he said, “You can’t lose a client, you never had.”
II. “That’s the Old School Way.”
We had just finished a two-week trial on an accusation carrying a punishment range of twenty-five to life. The jury acquitted our client, found him guilty of a lesser-included offense and assessed the minimum. For any criminal defense attorney, this was a victory, but our client’s family was still reeling from the one-word verdict. Standing in the elevator, another old-school attorney entered. He watched a portion of the trial and was no stranger to defending citizens accused of serious crimes. Unprovoked, he looked to the family and said, “Now that is why you hire those guys.” Sr. looked at me and said, “that’s the old-school way.”
Before social media and the Law Hawk. Before Google and Lexis Nexus, there were lawyers on the ground, front and center, paving the road for the next generation. Influential groups like the Harris County Criminal Lawyers Association didn’t exist, and when they eventually formed carried little weight with government officials.
Whatever your niche is criminal, family, civil, there is another lawyer available at the click of a mouse. You will have consultations where the potential client has met or will meet with other attorneys. You will also field phone calls from potential clients looking for new representation. In short, there will be opportunities to voice your opinion about other attorneys. Keep it positive and keep it brief. Focus on what you can do, as opposed to what you feel the other lawyer cannot. The “other lawyer” has likely done more for you than you will ever know. “That’s the old-school way.”
III. “You can’t buy trust.”
Trust takes seconds to break and forever to repair. Be honest with judges and honest with district attorneys. It isn’t necessary to reveal all your cards but don’t tell the district attorney the sky is green when the dash-cam shows it is blue. Doing so will damage your credibility, hurt your case, and harm future cases.
Earn your client’s trust by communicating (and getting results). Tell them email is the best way to reach you (it typically is). Not only does email provide an effective means of communication, but also serves as useful evidence should the need arise. Gain your client’s trust by understanding their overall goal. You can’t provide a solution if you don’t know the problem.
Bonus: “Find one thing.”
People are different. Some we get along with better than others. In your practice, you have come across (or will come across) a client you have difficulty tolerating. When that happens, you need to find one thing you like about them and hold on to it. At trial, that “thing” will act as your guide while delivering a genuine message to the jury.
IV. “Win as if you’re used to it.”
If you have ever watched a sporting event, it is clear when the winner doesn’t win much. As a criminal defense lawyer, it is easy to get lost in fighting for the underdog. You’ve taken on the system, won, and now want to let the world know. No problem there, but do so with class. The district attorney you just humiliated on social media will be handling another one of your client’s cases shortly.
V. “Trust yourself.”
Watch other attorneys in trial. Go to CLEs. Pour over court transcripts. Ask questions. Learn. Get involved. Investigate. Over prepare, be confident, trust your instincts and above all trust yourself.
With many outstanding lawyers in Houston, this list will grow. Add on.
You Are Committing a Felony: Cannabis Oils in Texas
Cannabis oils in Texas
Cannabis oils are illegal in Texas. In fact, you are committing a felony and don’t even know it.
Maybe it’s for a bachelor party.
Maybe it’s for a business trip.
Maybe you are looking to escape the Texas heat.
Whatever the reason, you have just touched down at Denver International Airport and you are determined to emphasize the “High” in “Mile-High.”
Just make sure what happens in Colorado, stays in Colorado.
You be surprised how many vape pens, cannabis oil cartridges, and edibles find their way into visitors golf bags, ski bags and luggage. While legal in Colorado, the cannabinoid oil that fuels the vaporless pen is a felony in Texas. The paraphernalia itself is a misdemeanor.
What is Cannabis Oil?
Cannabis oil (also known as: marijuana oil, hash oil or wax) is a thick, sticky, resinous substance made up of cannabinoids, such as THC and CBD. It is obtained by separating the resins from cannabis flowers using a solvent extraction process. Cannabis oil is not only the most concentrated form of cannabis, but also the most potent. In other words, it does the job and can be found at any dispensary in Colorado.
What is the Punishment Range for Possession of Cannabis Oil in Texas?
This marijuana derivative is a controlled substance in Texas, falling into penalty group 2. For example, possess less than a gram and face up to two years in a state jail facility and up to a $10,000 fine. Possess more than one gram and face the possibility of a third-degree felony, up to ten years in prison and up to a $10,000 fine. Possess more than four grams and face the possibility of a second-degree felony, up to 20 years in prison and up to a $10,000 fine.
So if you find yourself in Colorado to hit the slopes, take in a Broncos game or add twenty-five yards to your driver, make sure what happens there stays there.
See Texas Health & Safety Code Section 481.002(26), 481.103, and 481.1031.