Are Texas Hash Statutes Unconstitutionally Vague?

Posted on: April 10, 2012

Recent discussions of current events have directed our attention to Texas Statutes purporting to prohibit the possession of so-called “hash.” In Texas, possession of hash is classified as a felony of varying degrees of severity depending on how much is possessed by aggregate weight.

In the overwhelming majority of states, simple possession for small amounts of hash derived naturally from the marijuana plant is treated exactly the same as possession of marijuana, punishable as a misdemeanor. Even Oklahoma, known for its draconian drug laws, merely treats hash the same way as it treats marijuana. It comes as no surprise to me, then, when cannabis consumers routinely react with shock, horror, and disbelief to learn they are being charged with a felony by simply possessing derivatives of their beloved plant.

I really don’t know the legal definition of “hash” as our Texas criminal statutes have attempted to define it. Indeed, the definitions tend to get squishy in the criminal laws in all the states trying to distinguish components derived from only the marijuana plant. Could it be because a rose by any other name is still a rose?

The due process clause of the Fifth Amendment requires that criminal statutes give reasonably certain notice that an act has been made criminal before it is committed. Every person should be able to know with certainty when he or she is committing a crime. A statute is void when it is vague either as to what persons fall within the scope of the statute, what conduct is forbidden, or what punishment may be imposed. I believe we should now be asking if our Texas statutes pass this constitutional muster as they are written.

Texas Health and Safety Code Sec. 481.103 – Penalty Group 2, defines so-called “hash” (although they do not call it that) as:
“Tetrahydrocannabinols, other than marijuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacology (goes on to list delta 1, 3, 4, and 6 tetrahydrocannabinols and their optical isomers); compounds of these structures, regardless of numeric designation of atomic positions, since nomenclature of these substances is not internationally standardized.”

Well now, that certainly clears things up. That should give every citizen of normal intelligence fair and reasonable notice that beating or grinding the kief out of their misdemeanor quantity of Cannabis makes it a felony, right?

In determining a statute’s plain meaning, we read the words and phrases in context, and construe them according to the rules of grammar and common usage. Perhaps one of our grammatical scholars can tell us if other than marijuana being offset by commas is meant to exclude some form of marijuana that does not contain the same active components from which so-called “hash” is derived naturally from the cannabis plant. Or can the definition still be fairly read to mean all forms of Tetrahydrocannabinols, whether synthetic or natural, are excluded and therefore lawful?

This issue has been raised before. Back in 1974 the Texas Court of Criminal Appeals attempted to address this very issue. In Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974) an appellant from Harris County challenged this language under then Section 4.02 of Texas Controlled Substances Act that said “Tetrahydrocannabinols other than marijuana and synthetic equivalents…” The court went into a strained interpretation of the legislative intent of the statute and concluded that perhaps they should add these pesky commas to offset and specifically exclude marijuana from so-called “hash.”

However, it appears from the record this was a direct attack on the plain meaning of the statute rather than a challenge that the statute itself was unconstitutionally vague. It is important to note that in 1974 the court pointed to Schedule-1 for further clarification. At that time it contained “Tetrahydrocannabinols” with an identical definition except the “other than marijuana” phrase upon which they relied heavily on their interpretation of legislative intent that Texas meant to exclude marijuana and not the extracted active components. Tetrahydrocannabinols no longer appear in the lists of Texas Schedule-1 narcotics and are now only discussed in Schedule-2. Finally, in 1978 there was a direct Federal constitutional challenge on the vagueness of the statute arising out of the Western District of Texas. The 5th Circuit court of appeals held:

“By her petition for writ of habeas corpus appellant raised the issue presented here, that the Texas Controlled Substances Act is unconstitutionally vague because of its failure to give adequate notice of the proscription of and penalties for possession and delivery of hashish. The contention centers on the punctuation and structural make up of Section 4.02(c), Subsection N of the Texas Controlled Substances Act… Petitioner’s attack on the statute under which she was convicted is without merit. The Petitioner has improperly read the statute, and under this reading, concluded that it does not encompass the activity in which she was engaged and that the way the statute was interpreted by the Texas Court of Criminal Appeals stretched it beyond its literal language, thus failing to give fair warning to the Petitioner. The statute, fairly read, gave notice to the Petitioner that her conduct was prohibited, even prior to its construction by the Texas Court of Criminal Appeals. Even more importantly, however, the Texas Court of Criminal Appeals had already construed the statute so as to reach the conduct in question prior to the date of the transaction. Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974). Thus, the criminal law in question was not so vague as to deny Petitioner her federal constitutional rights.”
Rogers v. Estelle, 571 F.2d 1381

Here, the court totally dismissed the void for vagueness challenge based upon the prior holding in Texas that fair notice was given with the non-marijuana Schedule-1 Distinction that no longer exist in Texas in the New Texas Health and Safety Code. And again, this was in 1978, where the public attitudes about marijuana were somewhat different than they are today. It is my opinion we should raise this challenge again when the right case comes along. Meanwhile, I guess we are all left with our gratitude that we have a government that would be so clear about the rules they use to lock their citizens away.

David B. Sloane, Attorney
DFW NORML Public Information Officer
http://www.sloanelaw.com