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State legislators weigh lighter penalties for marijuana possession

Asher Price
Austin American-Statesman
In this 2019 photo, Dave Wienecke of Texas NORML attends a Texas House subcommittee hearing on bills that would expand access to medical marijuana in Texas.

Measures aimed at loosening prohibitions on marijuana possession received hearings in a Texas House committee as lawmakers across the political spectrum appear ever more inclined to revise low-level drug penalties.

The passel of bills that came before the Texas House Committee on Criminal Jurisprudence on Tuesday would reduce penalties for small amounts of marijuana possession through a variety of proposals, including:

• Eliminating arrests altogether.

• Preventing loss of driver's license.

• Lowering the penalty to a Class C misdemeanor.

• Opening the way to an expungement of a criminal record.

• Lowering the penalties for possession of marijuana concentrates, which can be used in cooking marijuana brownies.

Three dozen other states, to varying degrees over the past decade, already have loosened pot penalties, as libertarians, criminal justice reform-minded liberals and fiscal conservatives anxious about the high cost of imprisonments have banded together.

Most of the bills scheduled for the committee were brought by urban Democrats, though at least one — House Bill 99, by state Rep. Steve Toth, R-The Woodlands — was authored by a suburban Republican. His bill would reduce the penalty for and criminal consequences of possessing 2 ounces or less of marijuana.

Witnesses who appeared before the committee Tuesday were predominantly supporters of the legislation. Testimony continued late into the night.

David Bass, speaking in favor of one of the bills that would require police measure only the illicit materials when making an arrest, told lawmakers that instead of reaching for pain-killing pills after three cancer surgeries in recent years, he preferred making marijuana brownies. 

He then proceeded to walk them through a recipe, explaining that possession of 4 grams of cannabis might be a misdemeanor, but when that same amount of marijuana is combined with butter, eggs, sugar, flour and chocolate and baked, its possession can lead to long prison time because law enforcement charges by possession of total weight of marijuana-related products.

Millions of dollars are at stake for the state in these bills.

A fiscal note for House Bill 169, which is sponsored by state Rep. Senfronia Thompson, D-Houston, which would reduce marijuana penalties, for, among other things, possession in a drug-free zone, pegs the net positive impact on the state's general revenue related funds from the reform at $100 million by 2026.

"Reducing the penalties for criminal offenses is expected to result in fewer demands upon the correctional resources of counties or of the state due to a decrease in the number of individuals placed under supervision in the community or sentenced to terms of confinement in state correctional institutions," according to the fiscal note attached to the bill by Jerry McGinty, director of the state Legislative Budget Board. "The penalty reductions are also expected to result in a decrease in total court costs assessed."

Supporters of the reform bills contend that a legal marijuana industry would generate millions of dollars in new tax revenue — at a time when economic fallout from the coronavirus pandemic has sapped state coffers — and that eliminating or reducing penalties for low-volume marijuana possession would inject fairness into the criminal justice system.

But getting the bills into law won't be easy. Politically connected social conservatives and some law enforcement groups have helped derail such efforts in the past and are likely to come out in opposition once again.

Among the most far-reaching bills is House Bill 441, by state Rep. Erin Zwiener, D-Driftwood, which would reduce the penalty for the possession of 1 ounce or less of marijuana from a Class B to a Class C misdemeanor and the Class B misdemeanor punishment for possession of marijuana would be associated with possession of more than one ounce but not more than of 2 ounces.

(A Class B misdemeanor is punishable by a fine of not more than $2,000, confinement in jail for a term not to exceed 180 days, or both. A Class C misdemeanor is punishable by a fine of not more than $500; punishment can also include up to 180 days of deferred disposition.)

The Zwiener bill also would allow the records related to the offenses of possession of 1 ounce or less of marijuana or possession or delivery of drug paraphernalia to be expunged under certain conditions. The bill would require a person who requests expungement related to possession of 1 ounce or less of marijuana or possession or delivery of drug paraphernalia to pay a fee in the amount of $30.

Gov. Greg Abbott "needs to sign these bills so we can have quality of life,” LaTonya Whittington, of Cannabis Reform of Houston, told lawmakers.

The bills were left pending in the committee Tuesday.