AUSTIN (KXAN) — Tuesday the Texas House gave final approval to a bill that reduces criminal penalties for Texans who have small amounts of marijuana in their possession. Now the bill is headed to the Texas Senate. 

The vote Tuesday was 103-42 in favor of the bill. 

This came after Tweets from Lt. Gov. Dan Patrick earlier in the morning who said the bill will be “dead in the Texas Senate.”

House Bill 63 is an amended version of the bill authored by Representative Joe Moody (D- El Paso). Last week, the House adjourned early, postponing this bill and several others.

Moody explained to the Texas House Tuesday on the third reading of the bill that he worked “diligently” with Governor Greg Abbott’s office on the amendments to the bill. Moody expressed frustration that Patrick took to Twitter to express his disapproval for the bill rather than talking out his concerns with those behind the bill. 

“Mr. Patrick is the odd man out here and the ball is in his court,” Moody said Tuesday. Moody also tweeted that Sen. John Whitmire, the dean of the Texas Senate, told him “I don’t believe it’s dead and I’m going to do the best I can (to round up support). I’m trying to see if we have the votes in the Criminal Justice Committee to get it to the (Senate) floor.”

Moody went on to explain that this bill is not legalization of marijuana, as Colorado has done. 

“22 states and the District of Columbia have passed bills like this and the sky hasn’t fallen there,” Moody told legislators Tuesday. 

Moody noted in his opening remarks that marijuana was legal in Texas before it became a state and for 70 years after that.  He continued that criminalizing marijuana began in 1915 in Texas, in Moody’s hometown of El Paso. 

“Police at the time said it was something used by Mexicans, and state law soon followed what El Paso did,” Moody told lawmakers Tuesday. “Possession of marijuana was a felony carrying up to a life sentence until the Legislature made most possession a misdemeanor in 1973.”

Moody explained that was the last debate on marijuana in the Texas House. 

“After 45 years we have 28 days left to see another watershed moment on this policy,” Moody said Tuesday. 

“I think having nearly a two-thirds vote of the Texas House — and maybe the vote goes up tomorrow– that speaks volumes that it’s time to change this policy,” Moody said Monday. He said barring unforeseen circumstances, the Texas House should pass this bill over to the Senate Tuesday. 

Moody acknowledged in comments to the press Monday that Lt. Gov. Dan Patrick has “drawn a line in the sand” and hasn’t shown support for this bill. 

Tuesday, Patrick tweeted that HB 63 would be “dead in the Texas Senate.”

“I join with those House Republicans who oppose this step toward legalization of marijuana,” Patrick added.

Moody explained that Texas State Senator José Rodríguez ( D- El Paso) has filed a companion bill in the Senate, but that bill still looks like the original version of HB 63. Moody believes that the version the House approved Monday is what’s most likely to become law. 

Representative Moody’s office expected the bill to pass Monday with a majority of the votes. His office explained that the amendment to this bill has started some new conversation and that lawmakers who were previously on the fence about it are now more comfortable with it. 

What’s in the amended bill

The amended version of the bill reduces penalties for possessing an ounce or less of marijuana to a Class C misdemeanor and removes jail time as a punishment for those offenses. It will also offer a pathway to removing those charges from criminal records.

But, the bill was even further changed on Monday. Moody explained that after his office met with Gov. Greg Abbott’s office that morning, they made an amendment to the amendment on this bill. This amendment to the amendment still allows those who have low-level marijuana possession charges to have their records expunged if they fulfill their probation requirements, but says that instead of automatically wiping their records, the offenders have to ask for expungement. The bill still classifies possession of an ounce or less of marijuana as a Class C misdemeanor for which officers are required to issue citations (as opposed to making arrests), however, the amendment to the amendment clarifies that the requirement to withhold making arrests doesn’t apply if the offender is facing other charges besides possession. 

Moody acknowledged Monday that this version of the bill was not what he had originally hoped it would be, but he is insistent that even this version of the bill is long overdue for Texas. 

“The amendment in front of you is not legalization, it is not even decriminalization,” he said, taking pains to make sure lawmakers did not confuse this with the several other marijuana-related laws in this legislative session.

“Although this compromise is not as far as I’d like to go, I’m not going to sacrifice the good for the perfect,” he said. 

Big differences from the original bill

The original version of the bill would have downgraded the possession of small amounts of marijuana from a criminal penalty to a civil one, but Representative Moody said he had to make compromises on the original bill in order to get the support from opponents of the bill and law enforcement. 

“We did it in a way that alleviates major collateral consequences for offenders and also saves law enforcement resources and time and prosecutors resources and time,” Moody told KXAN last week. “So I think we achieve a lot of the same goals, using the same construct, to get it to that point.” 

In March, the bill passed out of House Committee on Criminal Jurisprudence on a 5-2 vote. 

Texans for Responsible Marijuana Policy, a nonprofit that works on marijuana reform in Texas, says HB 63 has bipartisan support from 45 state representatives. 

At present, Texas law classifies possession of two ounces or less of marijuana as a Class B misdemeanor, which carries a fine of up to $2,000, 180 days in jail, drivers license suspension, and a permanent criminal record. In addition to lowering the charge to a Class C misdemeanor, HB 63 would allow the charge to be removed from criminal records if all probation requirements are met. It would also allow those charged to keep their driver’s licenses. 

Representative Moody explained that another bill will need to be passed to allow those charged to keep their drivers licenses in Texas. Representative James White has introduced a bill which would tell the federal government that Texas is not going to suspend drivers licenses for low-level marijuana possession and that the federal government should not hold up federal funds when Texas does so. Moody explained that other states have successfully done this.  

“Texas arrests more than 60,000 people annually for the simple possession of marijuana,” said Heather Fazio, director of Texans for Responsible Marijuana Policy, a group that supports HB 63. “Meanwhile, only 10 percent of burglaries are cleared (or solved) in our state. Victims of real crime deserve a justice system that is dedicated to protecting life, liberty, and property — not prosecuting people for marijuana.”

Fazio says that more than  20 states have eliminated jail time for marijuana possession.  

Groups that have opposed an earlier version of this bill include the Texas Police Chiefs Association and the Sheriff’s Association of Texas. KXAN has reached out to these groups to see if they support this amended version of the bill.

The Texas Police Chiefs Association (TPCA) explained that the only piece of the bill they oppose now is the mandate that officers can only issue citations for Class C marijuana offenses. They told KXAN Monday that they are comfortable with the new proposed penalty groups in the bill.

TCPA said that they still take issue with even to the amendment to the amendment on the bill, saying that they oppose any version that does not allow officer discretion to arrest which is what they have with “most all other Class C Misdemeanor offenses.”

Steve Dye, Police Chief for Grand Prairie and Committee Chair for TPCA on Marijuana Legislation, explained that TPCA supports a Class C Misdemeanor charge for the possession of a small amount of marijuana.

“While one ounce of marijuana is still a substantial quantity, Texas Police Chiefs advocate treatment, education/awareness, and rehabilitation for this addictive drug,” Dye said.

He continued that while most small amounts of marijuana are already being handled through officer citations, TPCA does not support the requirement that only a citation may be issued for Class C marijuana charges.  

“This mandate would remove officer discretion and their ability to be procedurally just in evaluating each circumstance on its own unique merits and effecting an arrest when other criminal activity is afoot or incarceration is the most appropriate recourse to protect the public and ensure defendant accountability,” Dye said.