The Criminal Defense Blog

 

blog pic

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

USDA releases interim rules for state hemp grow programs. Texas farmers can now apply for USDA approval to cultivate hemp. 

congress capitol marijuana


The House of Representatives passed a standalone marijuana reform bill for the first time in history on Wednesday. The chamber advanced the legislation—which would protect banks that service the cannabis industry from being penalized by federal regulators—in a vote of 321-103. All but one Democrat voted in favor of the bill. Republicans were virtually split, with 91 voting for the legislation and 102 opposing it. This is the first standalone marijuana reform bill to ever clear the House. The Bill must now be taken up in the Senate and passed before it can proceed to the President to be signed into law. 

 

The Washington Post reported that "A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent." "Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show." Does this data-mining by law enforcement amount to a search under the Fourth Amendment? If so, do citizens have an expectation of privacy when it comes to Facial Recognition Searches? 

A recent ABA commentary discssued the constitutional implications of Facial Recognition Technology. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States, the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable. (389 U.S. 347 (1967).) The Katz test provides a framework for analyzing Fourth Amendment issues.

On June 22, 2018, the US Supreme Court decided Carpenter v. United States. (138 S. Ct. 2206 (2018).) In Carpenter, the Court ruled on whether a person’s expectation of privacy covered the records of historical cell phone data (historical CSLI), which could reveal the person’s physical location or movements. Relying on KatzCarpenter held that a person’s Fourth Amendment rights were violated when the government received historical CSLI from cell phone companies without first obtaining a search warrant. 

In light of Katz and Carpenter, Factial Recognition Technology (FRT) that is used on a limited, short-term basis with strictly public systems should not implicate the Fourth Amendment because an individual’s face is open to the public. (Katz, 389 U.S. at 351–52; United States v. Dionisio, 410 U.S. 1, 14 (1973). See, e.g., De Lillo, supra, at 282.) Nevertheless, legal arguments against the warrantless use of FRT can be made on a variety of issues, including that the technology can be used to track an individual’s movement over an extended period of time, First Amendment rights may be chilled, and the technology is not available for public use and may implicate the Fourth Amendment.

As for FRT, Carpenter suggests that an individual’s public movements captured by FRT in an isolated incident do not implicate the Fourth Amendment. However, the same individual’s public movements viewed using FRT over an extended timeframe could reveal intimate details about the individual’s personal life that may be found to amount to a Fourth Amendment search, even though everything took place in public. 

In addition to Fourth Amendment concern, the Washington Post also noted the possible danger of misidentification by law enforcement agents who rely on FRT. "The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches, according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches." But what about the dangers of wrongful identification and arrest of suspects? Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin."

 

The Washington Post reported that "A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent." "Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show." Does this data-mining by law enforcement amount to a search under the Fourth Amendment? If so, do citizens have an expectation of privacy when it comes to Facial Recognition Searches? 

A recent ABA commentary discssued the constitutional implications of Facial Recognition Technology. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States, the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable. (389 U.S. 347 (1967).) The Katz test provides a framework for analyzing Fourth Amendment issues.

On June 22, 2018, the US Supreme Court decided Carpenter v. United States. (138 S. Ct. 2206 (2018).) In Carpenter, the Court ruled on whether a person’s expectation of privacy covered the records of historical cell phone data (historical CSLI), which could reveal the person’s physical location or movements. Relying on KatzCarpenter held that a person’s Fourth Amendment rights were violated when the government received historical CSLI from cell phone companies without first obtaining a search warrant. 

In light of Katz and Carpenter, Factial Recognition Technology (FRT) that is used on a limited, short-term basis with strictly public systems should not implicate the Fourth Amendment because an individual’s face is open to the public. (Katz, 389 U.S. at 351–52; United States v. Dionisio, 410 U.S. 1, 14 (1973). See, e.g., De Lillo, supra, at 282.) Nevertheless, legal arguments against the warrantless use of FRT can be made on a variety of issues, including that the technology can be used to track an individual’s movement over an extended period of time, First Amendment rights may be chilled, and the technology is not available for public use and may implicate the Fourth Amendment.

As for FRT, Carpenter suggests that an individual’s public movements captured by FRT in an isolated incident do not implicate the Fourth Amendment. However, the same individual’s public movements viewed using FRT over an extended timeframe could reveal intimate details about the individual’s personal life that may be found to amount to a Fourth Amendment search, even though everything took place in public. 

In addition to Fourth Amendment concern, the Washington Post also noted the possible danger of misidentification by law enforcement agents who rely on FRT. "The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches, according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches." But what about the dangers of wrongful identification and arrest of suspects? Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin."

 

The Texas Department of State Health Services has added a Hemp Program linkot its website, but the link offers little guidenace for CBD consumers and retailers. Below is a summary. 

What is a consumable hemp product?

A consumable hemp product is a food, drug, device, or cosmetic that contains industrial hemp or hemp-derived cannabinoids, including cannabidiol (CBD). These products may not contain more than 0.3 percent concentration of tetrahydrocannabinol (THC). 

What is DSHS required to do under HB 1325?

When the submitted TDA state plan is approved by USDA, HB 1325 requires DSHS to: 

  • Establish a manufacturing licensure program for consumable hemp products. 
  • Create a registration process for retailers selling consumable hemp products containing CBD. 
  • Work with DPS on random testing for consumable hemp products containing CBD sold at retail. Random testing will not occur until the retail registration process is established after the TDA state plan approval. 

Implementation of HB 1325 will involve the development of rules, which will include a public input process. While DSHS rules development will begin before the TDA plan is approved, final rules cannot be completed until after the TDA state plan approval. Therefore, DSHS may only begin issuing licenses and accepting registrations after TDA's plan is approved by USDA and DSHS adopts rules consistent with the TDA approved plan. The approved plan may impact the implementation of HB 1325, including rules development.

What is DSHS’ role?

DSHS has oversight of food, drug, cosmetics and dietary supplement manufacturers, distributors and retailers, including those that may use or market hemp or cannabidiol (CBD) as an ingredient in those products. Local jurisdictions may also regulate retail sales of food, drugs, cosmetics and dietary supplements, but may not prohibit the sale of consumable hemp products.

DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement. Neither does DSHS administer the  Texas Compassionate Use Act

Can I manufacture consumable hemp products?

The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA. 

Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.

Can I sell consumable hemp products at retail now?

Yes, Section 11 of HB 1325 allows for existing retailers to possess, transport or sell consumable hemp products that become part of the retailers’ inventory prior to the effective date of DSHS rules resulting from HB 1325. The retailer must be licensed as currently required by law. Retailers selling consumable hemp products must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms or residual solvents. Additionally, consumable hemp products sold must not contain more than 0.3 percent THC. 

During routine inspection or complaint investigations, DSHS, within its statutory authority, may detain products, including dietary supplements, that are labeled as or contain hemp, including CBD, and that make unproven health claims, such as preventing, diagnosing, treating and/or curing a health or medical condition. Products that are being manufactured or handled in a manner that creates a health hazard for people who may use it may also be detained. 

Note: HB 1325 contains limitations regarding retail sales of out-of-state consumable hemp products. The products must be processed or manufactured in another state in compliance with:

  1. that state or jurisdiction’s plan approved by the USDA;
  2. in the absence of a state submitted plan, a plan established by the USDA; or,
  3. the laws of that state or jurisdiction if the products are tested in compliance with, or similar to those set out in Section 443.151 of HB 1325.

Upon approval of the Texas state hemp plan by USDA, DSHS will establish a process to register retailers selling consumable hemp products containing CBD. At that time, existing retailers selling consumable hemp products containing CBD and new retailers wishing to sell these products will be required to register with DSHS.

What is the federal status of CBD?

Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics or dietary supplements. 

Because the FDA also has authority to oversee food, cosmetics and dietary supplements, the FDA may take actions on its own relating to the ingredients in foods, drugs, cosmetics and dietary supplements.

What should a consumer know?

CBD is currently available as an FDA-approved prescription drug. DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement, and HB 1325 will not change those parameters. Questions regarding medicinal use of consumable hemp products (including CBD) should be directed to a physician.


images

In Rehaif v. United States, the Supreme Court held 6-2 that in order to convict a defendant under 922(g), the government must prove beyond a reasonabnle doubt that the defendant knew he possessed a firearm and also that he knew he had belonged to a certian class of prohibited persons when he possessed it.” 18 U.S.C. § 922(g) makes it a federal offense for certian individuals to ship, transport, possess or receive any firearm or ammunition with the required interstate commerce nexus. Those prohibited classes of persons are: convicted felons (§ 922(g)(1)); fugitives from justice (§ 922(g)(2)); unlawful users or addicts of controlled substances (§ 922(g)(3)); mental defectives (§ 922(g)(4)); illegal aliens (§  922(g)(5)); dishonorably discharged servicemen (§ 922(g)(6)); and persons who have renounced their U.S. citizenship (§ 922(g)(7)). The penalty provision for a violation of § 922(g) appears at 18 U.S.C. § 924(a)(2), which provides that a person who "knowingly" violates § 922(g) "shall be fined as provided in this title, imprisoned not more than 10 years, or both."

Although 922(g) itself is silent as to the “knowingly” element, it is addresssed in §  924(a)(2), which provides: “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”The term “knowingly” in 924(a)(2) modifies the verb “violates” and its direct object, here, 922(g).  The non-jurisdictional elements of 922(g) are status, possession, and firearm or ammunition, and knowingly applies to each one.

The Court stressed that in felon-in-possession cases, Congress could not have intended to impose criminal liability on “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.” The Rehaif case involved 922(g)(5)(A), where the status is being an “alien” who is “illegally or unlawfully in the United States.”  The Court rejected the government’s argument that this is a question of law, not fact, and ignorance of the law is no excuse, because that maxim applies when the defendant claims to be unaware of a statute proscribing his conduct, not when a defendant has a mistaken impression concerning the legal effect of some collateral matter that results in his musunderstanding the significance of his conduct.  "The defendant’s status as an alien 'illegally or unlawfully in the United States' refers to a legal matter, but this legal matter is what the commenta­tors refer to as a 'collateral' question of law. A defendant who does not know that he is an alien 'illegally or unlaw­fully in the United States' does not have the guilty state of mind that the statute’s language and purposes require."

phone icon
facebook
twitter
instagram
snapchat
linkedin

 

The hiring of a lawyer is an important decision that should not be based solely upon advertisements.  Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only.  The information presented at this site should not be construed to be formal legal advice nor the formation of an attorney/client relationship.