Texas medical marijuana faces a steep uphill climb to implementation

In Texas, the thrill of a modest victory for medical marijuana advocates has since been muted by the thud of dull bureaucracy.

To close out 2016, the Texas Department of Public Safety met on a dreary December day in a dreary government building. Up for discussion: the implementation of the state’s Compassionate Use Act (now called the Compassionate Use Program), a very conservative medical marijuana law.

Signed into law in 2015 by Gov. Greg Abbott, the program will only serve patients with intractable epilepsy – many of them children – only after they get the approval of two qualified doctors, and they’ll only be allowed low-THC, high-CBD cannabis strains.

Initial plans for the CUP said that the state could issue up to 12 licenses for grow facilities, and those licenses would cost in the $6,000 range, which everyone considered a reasonable cost of doing business. Then late last fall, it came out that the amount would be raised to $1.3 million, and the state would issue only three licenses. DPS said the grow facilities would require 24-hour state trooper presence at all times, hence the cost. At the hearing, public comment ran thoroughly against these changes.

Comments covered two main topics: First, that a proposed statewide seed registry would force dispensaries to reveal their sources, creating possibilities for prosecution, since interstate commerce involving marijuana is illegal. Second, the licensing cost was just too expensive.

“We could do it,” said Pete Goodwin, director of business development in Texas for a marijuana tech company called Growblox Science. “We have investors with deep pockets.” But, he said, given the limited market in Texas, “it doesn’t make a lot financial sense.”

Terri Carriker, whose 14-year-old daughter Catherine has intractable epilepsy, spoke with desperation in her voice. Activists had worked so long and hard to get just this small amount of gain, and now the state was going to use red tape to bury her hope. “Having only three dispensaries is a little mind-boggling,” she said. “We have pharmacists on every corner that have opioids, but the pharmacies aren’t required to have trooper presence. It’s discriminatory.”

As mom after mom got up to testify, tears in their eyes, the members of the state DPS board looked on with concern. Two State Representatives, both Republicans, testified on behalf of the moms. Meanwhile, in a corner of the hearing room, RenEarl Bowie, the DPS’ assistant director, huddled urgently with his staff. After the comments he took the mic.

After further review, Bowie said, the seed bank idea would be eliminated. The licensing cost would be lowered to $488,520 for a two-year license, $318,511 for a two-year renewal. Bowie thanked the board, and thanked the public for their comments, and said he looked forward to working with everyone further. The board tabled a vote on the numbers until late February, meaning there would be a two-month period to further adjust the numbers.

From a business standpoint, the new fees still don’t make sense. “That’s still a half million bucks,” Goodwin murmured ruefully. But activists considered it a mild victory.

In the lobby, a small group of “epilepsy moms,” who had fought so hard for even this small concession, exchanged hugs of congratulation and tears of relief. DPS board member Manny Flores approached them and said that his daughter had used medical marijuana in Florida to deal with her illness, so he well understood its value. “CBD oil is the way to go,” he said to them. “We’re going to get it done. I’m with you.”

That $488,520 fee will be the highest in the country, says Heather Fazio of advocacy group Texans For Responsible Marijuana Policy. The mandatory police presence is gone, she said, but it’s been replaced by a twice-a-week mandatory inspection. “We’re preparing comments to let them know this is still unreasonable,” she says. “This is a tiny program with only three businesses. They’re regulating it more than plutonium, for God’s sake.”

Regardless, Fazio says, this seems like something close to a final amount. And someone, likely from out of state, will step up and pay the fee.

The next DPS rule-making meeting is Feb. 22. The next day, the department will begin accepting applications for dispensing licenses. However, DPS officials have decided they don’t have enough time to create an online application and will be hand-processing submissions.

Fazio says she expects a dozen applications, maybe more: “There are people who are willing to invest now and establish it as a long game. They’re ready to rock and roll under a comprehensive program.”

And regulators are on the clock: The bill requires DPS to license at least three dispensing organizations by Sept. 1.

A few weeks after the December hearing, I called Terri Carriker to see how she was feeling about the situation.

“They removed a trooper presence,” she said, “but they replaced it with some kind of an inspector. I wasn’t really sure what the purpose of the inspector is supposed to be. They’re supposed to have more than one inspection per week. What are they looking for? Week to week somebody isn’t going to be growing THC weed. I don’t get it.”

Now the Texas Legislature is in session again. Marijuana doesn’t sit at the top of the list of the state’s concerns, but it is on the agenda. There are a total of 11 marijuana-related bills up for consideration, ranging from full legalization to reduction in criminal penalties. There are also efforts underway to expand the medical-marijuana umbrella. When it comes to medical, Texas activists are using the word “tweak” rather than “expand.”

“Expansion to them is just the next step toward legalization,” Carriker said. “That’s been the big fight against it from the beginning.”

Carriker told me she feels something like survivor’s guilt: “Cannabis will be accessible to us but not to so many people who need it so desperately.”

That’s why she’s going to keep pressing while the Legislature is in session.

“I think we have a shot,” she said. “I think it’s a long shot, but we do have a shot. There is very guarded optimism. When we set out to get 339 (the CUA) passed, most of the people said ‘don’t get your hopes up.’ Everybody was really shocked when it happened, and I think it happened because people like me — conservative Christian moms — flooded the building with our kids. We’re not hippies! Nobody is trying to get high. We’re trying to help our children.”