Texas Looks at Legalizing Medical Marijuana

Recent polls show that 84 percent of voting Texans believe the state should legalize marijuana for some uses, but an outright repeal of the prohibition against the drug is unlikely to happen anytime soon in the state.

Policymakers are focused on expanding medical marijuana use and reducing penalties for possession of small amounts of the drug, according to panelists discussing the politics of marijuana at the South by Southwest festival on Saturday.

State Sen. José Menéndez, D-San Antonio, and Texans for Responsible Marijuana Policy director Heather Fazio explained why the medical marijuana and possession laws in Texas need to change at a “Politics of Marijuana: What’s in Store for Texas” panel, one of several Cannabusiness discussions at the festival this year.

Moderated by Texas Tribune reporter Alex Samuels, the panel also featured Jackson County Sheriff A.J. Louderback, legislative chairman of the Sheriffs’ Association of Texas, which is fighting the marijuana reform bills that Fazio and Menéndez hope the Legislature will pass this year.

Menéndez doesn’t want to talk about legalizing marijuana for recreational use, and said he’s “laser-focused” on legalizing medical marijuana.

Thirty-three states and the District of Columbia have legalized use of marijuana for medicinal purposes, but in Texas doctors may prescribe only low-THC cannabis to patients with intractable epilepsy, under the Texas Compassionate Use Act of 2015.

“I think that the current Compassionate Use Act in Texas is worthless,” Menéndez said. “We say to cancer patients, ‘I’m sorry, you’re not worthy of it. HIV patients, sorry. Glaucoma, multiple sclerosis, Parkinson’s, cystic fibrosis, cerebral palsy, Alzheimer’s, hepatitis C, you name it, you’re just not worthy.’

“I think it’s the doctors and the patients who should make the decisions about what they put in their body to make them better, not legislators,” Menéndez added.

The issue is personal for Menéndez, whose wife has multiple sclerosis. He said that if the state allows doctors to prescribe narcotics and opioids to help patients cope with pain, he doesn’t understand why the state won’t let doctors prescribe marijuana, which is safer.  

“Yesterday, as we’re talking to the pain specialist in my wife’s hospital room, and he’s like, ‘OK, I need to get you off the opioid painkillers, the narcotics, so that you can go home,’ and I asked him, ‘Hey, if there were medical cannabis products available, would it help?’ And he said, ‘Yes,’” Menéndez said.

Menéndez’s Senate Bill 90 would expand the Texas Compassionate Use Act to give doctors the discretion to prescribe marijuana to any patient whom they believe could benefit from it.

It remains to be seen whether the bill will make it to a vote during this year’s legislative session, which ends May 29. Menéndez filed a similar bill during the 2017 legislative session, but it never received a committee hearing. Its companion bill in the House had nearly 80 co-sponsors, and did make it through committee in that chamber, but it was never scheduled for a vote. The Texas Legislature meets every other year.

Three other bills that would expand the Act in some way, including two by Republican lawmakers, have been filed this session. If none make it through this year, reformers will have to wait until the Legislature meets again in 2021 to try again to expand the Act.

Fazio said there is also bipartisan support for reducing penalties for low-level marijuana possession, noting that the Texas Republican delegates at their state convention last year adopted marijuana decriminalization as a party platform.

“It is officially in their platform for the Texas GOP that there should be no jail time associated with small amounts of marijuana,” Fazio said. “Instead, there should be a small fine and people should be able to go on with their lives. They know that this is going to keep people in school and keep them in the workforce and that’s what’s going to keep Texas strong.”

Fazio said that 60,000 to 70,000 people are arrested for simple possession of marijuana every year in Texas, and that about two-thirds of them are convicted, which can affect access to education, employment, housing and driver’s licenses.

In the same 2018 University of Texas/Texas Tribune Poll that found 84 percent of Texans support legalizing marijuana for some uses, 69 percent of respondents said they support reducing punishments for marijuana possession, including 62 percent of Republican respondents and 79 percent of Democratic respondents.

Lawmakers have proposed several bills this session that would reduce criminal penalties for possession of small amounts of marijuana or eliminate those penalties altogether, and there is some movement on this legislation.

House Bill 63, filed by El Paso Democrat Rep. Joe Moody, would make it so that anyone who possesses one ounce of marijuana or less would not face a criminal offense, but merely a civil fine of $250 or less.

That bill received a public hearing in the House criminal jurisprudence committee this month, but the committee has not voted on it yet.  

Fazio said that there will have to be a conversation about legalizing marijuana outright in Texas “very soon,” but her coalition is focused on reducing penalties, because that’s where it has found “common ground.”

“We are living in such incredibly polarized political times,” Fazio said. “Where we can find agreement with our neighbors, we have to move forward with that, and marijuana is bringing people together. It’s a beautiful thing.”

The Sheriffs Association of Texas, however, does not support any bill that would decriminalize simple possession or expand marijuana access to patients, and Lt. Gov. Dan Patrick, who plays a major role in deciding which bills the Senate will pick up, generally sides with the Sheriffs Association on major law enforcement issues.

Louderback said that law enforcement is wary of such measures, because of the “formula” for the progression of marijuana legalization in the U.S.

“It’s widely thought by many that the pathway to the ultimate goal of legalization for recreational marijuana … starts with the medical platform,” Louderback said.

The sheriff said that drug cartels are “growing stronger” in states such as Colorado that have legalized marijuana.

In 2017, Colorado Attorney General Cynthia Coffman announced the indictments of a “massive” illegal marijuana trafficking ring, which she said was a “prime example that the black market for marijuana has not gone away since recreational marijuana was legalized in our state, and in fact continues to flourish.”

“These trafficking rings are not just operating in the shadows, they are invading and are often conducting their illegal activity in plain sight under the guise of being a legitimate business,” Coffman said in a statement.

Louderback said he’s also concerned about the strength of commercial strains of weed and the fact that it is “easily ingested in many different ways,” which he says is a big problem for schools in states that have legalized pot.

Louderback said that state prosecutors are already taking marijuana matters into their own hands, changing the way they handle simple possession arrests, and that there’s “clearly going to be some changes” to marijuana laws in Texas during the next several legislative sessions, depending on “state leadership in the House and Senate.”

“So, obviously, the public plays a huge roll in this and the election process,” Louderback said.

For now, Texans who are looking to legally smoke will have to head across the border — not to Mexico, but to another U.S. state — all of Texas’s neighbors: New Mexico, Oklahoma, Arkansas and Louisiana, have already legalized medical marijuana.