Wednesday, December 17, 2014

A New, More Creative Crop of Marijuana Laws

   Back in the 1970's The Summit was the rock venue of choice in Houston. Bands as diverse as The Who and the Marshall Tucker Band played the place. A constant of those concerts was when the house lights dimmed the ganja was lit up.

    I was too young to catch The Who in 1975, but I was in the second deck when MTB played the place later in the decade. I cannot speak for the folks sitting on the floor near the band, but in the cheap seats there was no need for a suburban kid like me to light up. The second hand smoke from the marijuana being shared around me was enough to make my eyes water and head swim.

   It makes me smile to know the space is now occupied by Lakewood Church with weekly attendance of over 43,000. That any church, much less a mega-church of evangelical bent, is holding weekly services in a building once played by the dissolute like of Aerosmith is evidence that God is both forgiving and has a fine sense of humor. 

  But I digress. This is about marijuana, the law and purposed legislation in the biennial Texas legislative session beginning this spring. Grits for Breakfast posted a story yesterday about HB-507 introduced by Representative Joe Moody applicable to amounts of marijuana under 1 oz. Moody is a former prosecutor from El Paso. Grits details the rollout of the bill, the media coverage and gives some prognostication about passage. This post is really meant to applaud the creative approach used by Rep. Moody and provide some more fodder for thought as we await the beginning of the legislative session. 

   What is creative about the bill is by creating civil penalties instead of criminal, even a Class C, fine offense, the arrest, and consequences associated are largely eliminated. My practice is in a town with a 50,000 college students, most a high achieving, ambitious lot. Many commentators have railed about the waste associated with prosecuting low level amounts of marijuana. I see that waste every day in the trenches of the courthouse. I am sick of it. More importantly, I think the body politic is sick of it too. At least if the jury panels in my conservative county are any barometer of the body politic of Texas.

   As Grits has reported, the lege passed legislation back in 2007 allowing law enforcement to "cite and release" low level POM and Driving With License Invalid (DWLI) cases, but few agencies have taken the legislature up on this option. A conviction to POM carries with it an automatic 6 month suspension of driving privileges in Texas. How this plays out practically everyday in courthouses is illustrated by the chronic user in the societal tax payer wagon who either cannot or will not make bond. This dude is arrested, sits in county for a week to ten days, pleads guilty, is convicted with time served, released and has driving privileges suspended. A few days or months later, same dude is arrested for DWLI and the cycle continues. 

   As significant, are those who cannot make bail, who are factually innocent, but plead to get the heck out out of county.

   Just as profound are those in the community who are, or aspire to be, pulling the societal wagon rather than in the wagon being pulled. I am talking about college students and young professionals who smoke pot just like their parents or grandparents did in the Summit all those years ago. These folks have much to offer to their community. In a digital world, however, a deferred adjudication to a POM case can make the difference in,getting into medical school, graduate school, or sitting for the CPA exam. All over what many times is marijuana of a weight equivalent to the sugar substitute I pour into my ice tea. 

   Deferred adjudication probation under current Texas law is not panacea. Sure, an Order of Public Non-disclosure is available to those who successfully complete, but that is only partial amelioration of the arrest. Another thing: that some counties in Texas have pre-trial diversion programs while other do not makes no sense. Why should dismissal of charges, if otherwise eligible for a pre-trial diversion program, be determined by which side of a random county line (river, or road) they were stopped, searched and arrested on? 

   The Texas Juvenile Justice Code statutorily provides for the option of pre-trial diversion.  A legislative alternative would be to amend the Texas Code of Criminal Procedure with what they have a already recognized as a judicial alternative in the TJJC. If baby steps are needed - and I understand why - restrict applicability to offenses such as POM less than 2 ozs. and DWLI. These two offense alone make up approximately 20 % of the formally charged offenses in my county. 

   What I like about HB-507 is the civil aspect. It does not allow arrest.  The problem IS the arrest. Even if the POM is refused for formal filing by prosecutors the law provides a wait of two years (the statute of limitation period) to expunge the arrest (there are exceptions). Expunction has limitations. It is a good tool, but in a digital world even an expunged arrest can magically appear on a Google search. Just ask, at least in my experience, the (not) so good folks at These folks, who operate out of Belize, will tell you they are beyond the jurisdictional boundaries of Texas, and therefore Texas expunction laws. They will, however, happily let you know that for a "small fee" they can remove arrest records the State of Texas say are a nullity. 

   Collection of the civil penalties is a issue addressed briefly by Grits. I have thoughts to be expanded upon later. My larger point is to applaud the creativity of Rep. Moody. I hope to be heard on it as it winds it's way through the currents and eddies of the the legislative session .

   Good luck.

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