30 Jan 2013
New laws, and proposed laws, concerning marijuana have become commonplace across the country. Two states (Washington and Colorado) recently legalized “recreational use” of the drug, and over a dozen states have medical marijuana laws on their books. Although similar legislation has been introduced and rejected by Texas lawmakers for a number of years, the proposals keep on coming.
The most recent version was introduced this term by Representative Elliott Naishat (D-Austin). HB 594 is not a medical marijuana bill, or for that matter a decriminalization bill, in the usual sense. Medical marijuana legislation tends to focus on (a) decriminalizing use of the drug for specified medical conditions, (b) providing standards for the issuance of prescriptions by a physician, and (c) setting forth, or requiring the establishment of regulations setting forth, the conditions for its cultivation and distribution. And even decriminalization laws generally provide at least some parameters for the use of the drug.
HB 594 does none of these things. What is says is that a recommendation by a licensed physician for the use of marijuana is an affirmative defense to a possession charge. It goes on to provide that a physician may not be investigated, criminally, civilly or administratively, for discussing the benefits of marijuana use with a patient.
The bill presents some potential problems, including, but not limited to, the following:
- There is no distinction in the text of the bill between possessing a small amount of marijuana for personal use, and larger amounts (which are currently classified as felonies). It applies to any charge under section 481.121(a) of the Health and Safety Code, which refers merely to possession of a “usable quantity” of marijuana.
- The bill does not provide any mechanism for obtaining marijuana legally, and without running afoul of the drug sale laws.
- The bill contains no restrictions on when and where marijuana may be used that would affect the applicability of the affirmative defense. Indeed, even in states that have decriminalized the use of the drug, smoking pot in public, for example, can still be prosecuted as an offense.
The majority of the pundits suggest that any new marijuana legislation in Texas which seeks to legalize medical marijuana, reduce penalties, or (as in this case) effectively decriminalize its use in limited situations, are doomed to failure given the current political climate. In the case of HB 594, it appears that even those who might otherwise be in favor of changes in the criminal laws relating to marijuana may have difficulty supporting this particular proposal.
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