Leading Texas marijuana legislator says 2015 session will be best chance yet for medical cannabis

group NORML Supporters from around the state, photo credit: Texas NORML

On Wednesday, Nov. 12, Rice University’s Baker Institute Drug Policy Program hosted an event entitled “Is Texas Ready for Medical Marijuana?” featuring speakers with expertise in this area including: State Rep. Elliott Naishtat, Postdoctoral Fellow in Drug Policy, Katharine A. Neill, Ph.D., and Physician at Seton Medical Center, Neeraj Shah, M.D., among others. Officers and other members of Houston NORML and other NORML chapters from across the state were in attendance. Video of the full event is embedded below and available on the Baker Institute’s website here.

State Representative Elliott Naishtat, who has led efforts for sensible policy on cannabis in the Texas Legislature for many sessions, said December 12 he intends to file a bill in the upcoming session that would create a medical necessity defense for medical marijuana users, and he is “cautiously optimistic” about passage. He said he also anticipated other bills to be filed that include varying approaches to ending outright prohibition in the state, from creating narrow medical exceptions to full legalization.

“The key to change…is community organizing and grassroots pressure,” Naishtat said. “We, you, must work through supportive organizations and reach out to legislators back home and in Austin for the purpose of educating and enlightening them about the benefits of and need for medicinal marijuana legislation.”

Naishtat’s bill will be similar to one he filed in the 2013 session, he said. A person accused of marijuana possession using medical marijuana can assert an affirmative defense in court. The person must be using cannabis to ameliorate a bona fide medical condition. He or she must have the recommendation of a licensed physician (a doctor may recommend marijuana use, but cannot prescribe it).

The defense asserts medical use as an affirmative defense, meaning the defense must prove it with a preponderance of evidence. The judge will be able to allow or deny use of the defense, Naishtat said. If the judge allows the defense and the defendant sufficient proves it, the judge dismisses the charges.

Currently, there are no medical exceptions to Texas laws on marijuana possession. A person possessing a small amount of marijuana (two ounces or less) for medical purposes will face the same repercussions as anyone else: a Class B misdemeanor, punishable by a fine up to $2,000, up to 180 days in jail and a criminal record.

In the 2013 session, Naishtat filed the bill, as he had five times before. In the last session, though, it received a hearing in the House Public Health Committee for the first time. Though it did not get a vote, Naishtat said the hearing was “important incremental change,” and that its chances of passage in the upcoming session, which begins January 5, are greater.

Vincent Lopez

The hearing featured powerful testimony, Naishtat said, including that of Vincent Lopez. Lopez is a muscular dystrophy patient and user of medicinal marijuana. In 2013, he founded the Patient Alliance for Cannabis Therapeutics (PACT), an organization that allows patients a safe place to share their stories and helps patients advocate. Lopez spoke Wednesday about coming out of the “cannabis closet.”

“In stepping out of the cannabis closet, I had always been familiar with the feelings of fear and intimidation, but nothing compared to the weight I was carrying by not coming out, by not saying anything, by living life in secret,” he said. “No longer could I live in silence knowing I had an answer in cannabis for the painful muscle spasms, the stiffness and contortion I endure, the loss of appetite and sleep.”

Other patient advocates at the event included AmyLou Fawell, president of Mothers Advocating Medical Marijuana for Autism, and Terri Davis Carriker, founder of Embrace Moms, a support group for Christian mothers whose children suffer from medical conditions and disabilities.

Carriker, the mother of a twelve-year-old with epilepsy, outlined the multiple treatments her family had attempted, including 20 different drugs. Her daughter still has 10 or more seizures per day and has severely regressed developmentally, with very limited communicative abilities. The drugs have debilitating side effects, she said.

“She’s been so drugged she couldn’t crawl across the room or hold her head up, so aggressive we had to separate her from other kids, she’s had risk of vision screening. One time her liver began to fail.” “Early reports are showing amazing results in these hardest-to-treat kids…To disallow it is to fail these vulnerable individuals far more than the medical community has. In my opinion, it is tantamount to medical neglect.”

Amy Lou Fawell

Fawell told the story of a mother in Texas with a severely autistic 19-year-old son, “Max,” suffering from grand mal seizures. The son was prescribed with drugs that caused extreme aggression in the son so severe the mother regularly locked herself in her room to protect herself. She tried a marijuana patch with results that have been “nothing short of a miracle,” Fawell said.

The mother is currently committing a felony to enable her and her son to live a functional life, Fawell said.

“Surely in Max’s case, breaking the law is necessary to prevent a harm worse than the one the law is aimed at preventing,” she said. “What’s criminal is to withhold this God-given plant from children who are sick, suffering and dying.”

Medical testimony will also be critical to any bill passing. Neeraj Shah, a Seton Medical Center physician in Hays County and San Antonio, said there have been no deaths associated with marijuana, and animals experiments indicate the lethal dose of marijuana for humans is about 2,000 pounds.

“The only way (for marijuana) to kill someone is to literally drop it on their head from a helicopter,” Shah said.

Leslie Grady McAhren, executive director and director of research at CG Corrigan Inc., a nonprofit licensed medical cannabis provider based in Albuquerque, New Mexico, said studies show a 28.4 percent decrease in opiate deaths in states with medical marijuana, like New Mexico.

“It’s remarkable that drugs like Oxycontin, Percocet and Vicodin can kill people, but we’re still prescribing them when medical cannabis can be an option,” she said.

McAhren, however, cautioned that as Texas moved forward, it should carefully craft policy. She cited New York and New Jersey as states with problematic medical marijuana laws. New Jersey limits strains, decreasing biodiversity. New York focuses on concentrates, which can mean prescribing patients unnecessarily high doses, she said.

The political makeup of the incoming Legislature is an obstacle, Naishtat said. The House will have a 98-52 Republican majority and the Senate a 19-11 Republican majority, with one vacant seat expected to go to a Republican in a special election this December. Many are primarily concerned about winning a GOP primary, where voting for marijuana legalization puts them at risk at looking “weak on crime,” Naishtat said.

Supporters need bipartisan support, said Katharine Neill, a postdoctoral fellow at the Baker Institute. She cited the recent failure of a medical marijuana initiative in Florida, which she said “got caught up between the two parties.”

“There are conservatives who support medical marijuana, either because they think it’s the right thing to do if they believe people should have access to this medicine, or from a fiscal point of view, where they want to stop spending money arresting people for marijuana,” Neill said.

Supporters must also be clear in their messaging that medical marijuana has board implications that could help a wide spectrum of patients, said Jeronimo Saldaña, legislative and organizing coordinator for the Drug Policy Alliance’s movement building team.

“We’re not talking about getting high or smoking weed, we’re talking about folks trying to live a more normal life,” he said.

Naishtat said he expected other bills to be filed, including:

  • A bill that would allow patients suffering from intractable epilepsy to possess up to 2.5 ounces of ingestible (nonsmokeable) cannabis, received from a dispensary licensed by the Department of Public Safety;
  • A broader medical marijuana bill for severely ill patients;
  • A bill, likely from State Representative Harold Dutton of Houston, that would decriminalize marijuana possession, setting civil penalties; and
  • A bill legalizing marijuana entirely.

A bill has been filed by Rep. Gene Wu of Houston that would reduce possession of 0.35 ounces or less of marijuana to a Class C misdemeanor.

These different policy approaches are important and deserve analysis, said William Martin, director of the Baker Institute’s Drug Policy Program.

“Decriminalization is a significant advance over policies based on prohibition and punishment, but as long as cultivation and sale remain illegal, criminals decide to whom and what to sell, and they get to keep the money,” he said.

The Legislative session begins January 13.

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