Texas Judge Rules that Marijuana Use in Colorado, Where It Is Legal, Should Not Result in Penalties in Texas, Where It Is Not

While a small number of states around the country have removed most legal restrictions on marijuana, Texas continues to classify it as a controlled substance. Beyond penalties under Texas drug crime law, marijuana use can result in professional sanctions, especially when a person’s career requires state licensure. State professional licensing boards require licensees to follow certain ethical or disciplinary rules. Last year, a Texas administrative law judge (ALJ) made an unusual recommendation in a case involving a teacher facing a license suspension for admitted marijuana use. The ALJ recommended that the teacher face no discipline because the alleged offense occurred in Colorado, where marijuana use is not illegal. Tex. Educ. Agency v. Roland, SOAH Docket No. 701-16-4719.EC, prop. dec. (Tex. SOAH, Jan. 10, 2017). The Texas Education Agency (TEA) ultimately decided not to pursue disciplinary proceedings.Under Texas law, the offense of possession of marijuana ranges from a Class B misdemeanor, for possession of no more than two ounces, to a felony punishable by life imprisonment if the amount exceeds 2,000 pounds. Tex. Health & Safety Code § 481.121. In Colorado, voters approved Amendment 64 in 2012, which amended the state constitution to make “marijuana…legal for persons twenty-one years of age or older.” Col. Const. Art. XVIII, § 16.

Teachers in Texas must have an “educator certificate” issued by the State Board for Educator Certification. Maintaining this certificate requires compliance with the Texas Educators’ Code of Ethics (COE). The complaint in Roland alleged violations of Standards 1.7 and 1.10 of the COE, which require that educators “comply with state regulations, written local school board policies, and other state and federal laws;” and that they “be of good moral character and be worthy to instruct or supervise the youth of this state.” 19 Tex. Admin. Code §§ 247.2(1)(G), (J). Other professional codes of conduct make more specific mention of drug laws. Physicians licensed in Texas, for example, may be subject to disciplinary proceedings for offenses involving “substance abuse or substance diversion…whether or not there is a complaint, indictment, or conviction.” 22 Tex. Admin. Code § 190.8(2)(R)(xii).

In 2015, the respondent in Roland was working for a public high school in El Paso, Texas. A former school district employee reportedly sent several emails to district administrators that February, alleging that another teacher was selling drugs. The emails provided a list of names, including the respondent’s, with no specific allegations against them.

An administrator interviewed the respondent, and she “stated that she occasionally did smoke marijuana,” but she had not done so for several months. Roland, prop. dec. at 5. While breath and urine tests were negative, a hair test was positive for marijuana. At the ALJ hearing, the respondent testified “that she had consumed an edible product containing marijuana during Christmas break 2014-2015, while on vacation in the state of Colorado.” Id. at 6.

The ALJ recommended against disciplinary action, noting that there was no evidence that the respondent used marijuana at school, or even within the state of Texas. Since marijuana use is legal in Colorado, no crime was committed. On the question of “worthiness to instruct,” the ALJ compared using marijuana in Colorado to “legally gambl[ing] in Nevada.” Id. at 11.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown is a board-certified marijuana crime attorney who has practiced in West Texas for more than two decades, defending people against alleged state and federal charges. You can contact us today online or at (432) 687-5157 to schedule a confidential consultation with an experienced and skilled criminal justice advocate.

More Blog Posts:

Texas Police Departments End Use of Drug-Testing Kits with History of False Positive Results, Texas Criminal Lawyer Blog, November 2, 2017

Federal Appellate Court Identifies Additional Consequence of Conflict Between Federal and State Marijuana Laws, Texas Criminal Lawyer Blog, November 2, 2017

Law Enforcement Tactic Originally Authorized for Anti-Terror Operations Reportedly Being Used in Drug Enforcement Instead, Texas Criminal Lawyer Blog, June 25, 2017


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