Marijuana Legalized in Washington and Colorado; Houston Lawyer Discusses Impact on Texas’ Legalization Efforts through Legislative Process, Political Mobilization

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On November 6, voters in Colorado and Washington approved measures legalizing marijuana for recreational use, making them the broadest laws legalizing marijuana in the nation. Houston marijuana defense lawyer Matt Horak, a member of the National Organization for the Reform of Marijuana Laws Legal Committee, discusses what it would take for similar laws to pass in Texas.

"As a criminal defense attorney, I've seen too many lives destroyed — not by marijuana use, but by unjust laws," said Matt Horak, Houston marijuana defense lawyer.

Colorado and Washington voters passed the broadest measures in the nation legalizing marijuana in their respective states on November 6. Colorado Amendment 64 and Washington Initiative Measure No. 502 legalize cannabis for recreational use by those over 21 years of age. Their successes will inevitably lead to unprecedented efforts in other states, including Texas, to legalize marijuana. In Texas, there is no provision for people to petition the state and put a measure on the ballot for a public vote, like there is in Washington and Colorado. The only way to change the law is through the Texas Legislature.

"Making legalization a reality will require organizing and applying political pressure," said Houston marijuana defense attorney Matt Horak, a member of the legal committee for the National Organization for the Reform of Marijuana Laws (NORML). "Texans value their personal freedom. They don't want the government in their business, and there's no reason for the government to be locking people up for using a natural product. But advocates will need to organize to be able to show popular support and lobby their legislators to change the law."

In Colorado and Washington, advocates collected signatures on petitions. Once they collected enough valid signatures and submitted them to the state, it was automatically on the ballot. Supporters began a voter outreach campaign to gain public approval, identify supportive voters and make sure they cast their ballots. On Tuesday, a majority of voters approved the measure, making it a state law. This process is called an initiative.

In Texas, there are no initiatives for state law. The electorate gets to vote on state constitutional amendments, but only after two thirds of legislators in both the Texas House of Representatives and the Texas Senate agree to put them on the ballot. The only other way for laws to pass in Texas is through the traditional legislative process, where a majority of legislators in each house vote to approve a bill and the governor then signs it.

Currently, legalizing marijuana legislatively may seem unlikely in Texas, Horak said. It's unclear where most legislators stand, but in the last legislative session in 2011, bills to allow for medical marijuana use and reduce possession charges to a Class C misdemeanor did not even get a hearing.

However, widespread opposition among lawmakers does not match popular opinion, Horak said. Huffington Post and Gallup polls in the last year have shown majority support for legalizing marijuana. In the Huffington Post poll, 51 percent of respondents said they believe marijuana should be taxed and regulated like alcohol. Millions of responsible adults use marijuana, Horak said — about 25 million over the course of a year.

The primary concern of opponents is that legalization will lead to increased drug use among teens. However, regulating marijuana like alcohol could make it much more difficult to obtain by those under 21 because photo ID will be required, Horak said. Additionally, he said, black market profitability would diminish and young drug dealers would go out of business. Currently, 18 states and the District of Columbia have enacted laws allowing marijuana for medicinal purposes. Studies indicate medical marijuana can be helpful in treating symptoms of multiple sclerosis, epilepsy, cancer, and many other serious conditions.

Despite its medical benefits and popularity, marijuana remains entirely illegal in Texas. The state arrested 77,000 people in 2009 for possession of marijuana alone. A 2010 Harvard University Department of Economics study estimated that Texas spends over $2 billion per year enforcing marijuana laws. Legalizing marijuana would allow law enforcement efforts to focus on actual crimes. As a border state, Texans are particularly aware of the horrific violence in Mexico, which is a direct result of prohibition. The White House Office of National Drug Control Policy estimates that about 60 percent of drug cartels profits are from marijuana. Legalization would immediately demolish these profits, taking the industry away from criminals and raising millions in tax revenue. Texans want to secure the border, and more and more people now understand that prohibition has failed to keep us safe. Due to these factors, legalizing marijuana in Texas could soon become the focus of a national effort among activists.

"As a criminal defense attorney, I've seen too many lives destroyed — not by marijuana use, but by unjust laws," Horak said. "People don't want to bear the costs or see the violence that prohibition brings. But legalization supporters need to turn that positive public opinion into action."

Turning popular support into legislative action requires organizing, Horak said. There are organizations that people can join to band together for support, like the Texas NORML chapter or the Texas Coalition for Compassionate Care, which lobbies for safe access to medical marijuana.

"Elected officials need to see support and know their decision has political backing behind it," Horak said. "Being part of an organized effort will also help supporters solidify their efforts behind one legislative bill. To choose which bill, supporters must determine which approach is best. One method might be taking a more incremental approach, like decriminalizing marijuana or legalizing marijuana for medical purposes."

Organized efforts could also determine if any compromises need to be made. For instance, in Washington, opponents of legalization did not have factual backing for any claim that marijuana had serious negative health consequences for users, but were successful in convincing the public that driving while under the influence of cannabis was dangerous. Supporters added a provision with strict driving while intoxicated requirements. Some said the requirements went too far, but it muted safety concerns and some former law enforcement officials actually appeared in television ads supporting legalization as a result of the addition. While many are concerned about people driving impaired from marijuana, Texas DWI laws already address this problem, Horak said.

The legislature only meets once every two years, in odd-numbered years, for six months. The next session starts in January 2013. While it may be impossible to get a bill passed in the next session, it's never too early to start talking to legislators, Horak said. Supporters could identify legislators that are supportive or open to persuasion and those who will be roadblocks, and mobilize against opponents politically in the 2014 elections.

Some might scoff at the idea that the Texas Legislature would legalize marijuana, but Texas has become known as a state that resists federal overreach, Horak said.

"The federal government has repeatedly overstepped its limitations under the 10th Amendment by raiding state-compliant dispensaries in states like California, arresting and prosecuting those who comply with state laws, and Texans should resist," Horak said. "Like the Prohibition of Alcohol in the early 20th century, states are leading the effort to overturn federal overreach."

Matt Horak is a criminal defense lawyer in Houston. He regularly represents clients accused of charges relating to marijuana, including possession, sale and trafficking. Horak is also a member the legal committee for the National Organization for the Reform of Marijuana Laws (NORML). NORML is an organization that advocates for the repeal of marijuana prohibition so that responsible use of cannabis by adults is no longer subject to criminal penalty.

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