Speculating on Texas' pot policy timeline

The Baker Institute Blog at the Houston Chronicle recently posed the question "When will marijuana be legalized in Texas?" - IMO a bit of a presumptuous query but one optimistically explored in a link-rich post. Rob Kampia of the Marijuana Policy Project thinks Texas may legalize pot by 2019. Mark Jones of the Baker Institute thinks outright legalization couldn't happen until at least 2023. I agree more with Jones on the timeline, but not necessarily his reasoning.

Jones starts out okay, rightly observing that the two states which have moved to a legalize, tax and regulate model are both places where citizens can propose statutes on the ballot via referenda. We don't have that in Texas (thank heavens!). Whatever laws pass must win approval from both chambers of the Texas Legislature and a new sitting governor. As such, if it ever occurs, Texas' version of "legalization" will happen in stages over multiple sessions, not all at once as it might after a ballot initiative. Jones views the matter through a purely partisan lens, concluding:

In Texas, the legalization of the sale and consumption of marijuana would require the passage of a law. At least until January 2023, and quite possibly even after that date, Republicans will possess a majority of the seats in the Texas House and Senate. And for these Republican legislators, a vote in favor of drug legalization would have a negative impact on their probability of winning in the GOP primary. Finally, if and when Democrats return to majority status in the Texas Legislature, we should not expect the Democratic delegation to be unanimously in favor of marijuana legalization, at least not in the short to medium term. In sum, similar to Texans who today want to legally play the slots, blackjack or craps, Texans who want to smoke pot legally will, at least for the next dozen years or so, need to travel to another state or country to do so.

Where Jones' analysis goes south is his odd assumption that "legalization" or other drug-policy reform couldn't happen while Texas is run by Republicans. He thinks 2023 will be the first gubernatorial race Texas Democrats can win but cautions that pot legalization won't be high on their priority list. But that reading ignores divisions within the GOP that play out along the pro-free market, less-government, "Right on Crime" axis touted by the Texas Public Policy Foundation. There are Republicans in the Texas Legislature who are perfectly comfortable suggesting the state reduce criminal justice costs by reducing the number of things we criminalize.

Jones doesn't appear fully aware how much criminal-justice reform legislation has passed since the GOP first came to power in Texas. Heck, often advocates themselves have been surprised, both by reforms that inexplicably had legs and more modest proposals that seemingly couldn't buy a break. Any Bayesian prediction of the odds must be moderated by the rodeo truism: There's never been a horse that can't be rode, never been a cowboy can't be throwed. A fractured, ultra-conservative GOP presents opportunities for peeling off factions, much like when Democrats controlled Texas as a one-party state a generation or two ago.

Grits believes framing the debate in terms of "legalization" does a disservice to the much-more moderate proposals likely to actually make it out of committee in 2015. In the near term, the issue isn't so much "will Texas legalize" but "will Texas reduce penalties for low-level pot possession?" Right now, possession of less than two ounces of marijuana is a Class B misdemeanor in Texas, meaning in theory the defendant faces a threat of up to six months in the county jail. Because the defendant's liberty is at risk, the county must pay for an attorney if they're indigent. Changing low-level pot possession to a Class C fine-only offense - or, some have suggested, a non-criminal "civil" citation akin to those given out by red-light cameras - would move low-level non-violent offenders out of the jail, save counties money on lawyers, and possibly even generate a new stream of fine revenue from future ticket writing.

There are probably 76+ votes in the Texas House of Representatives right now for making possession of less than 2 ounces of pot a Class C, ticket-only offense. In fact, that's been true for several sessions. In the past, though, House leadership, both under Speakers Tom Craddick and Joe Straus, have been loathe to allow members to take a floor vote. Somehow get the measure out of the Calendars Committee and before the members and I think Mr. Jones may be surprised that more than a few House Republicans would vote for penalty reduction.

It's possible the 21 votes needed to reduce pot penalties could be found in the Senate, too, but not at present to "legalize." Ironically, it'd be easier to get the penalty-reduction measure through the Senate if, say, a Lt. Governor Dan Patrick were to get rid of the 2/3 rule and require only 19 (out of 31) votes to get a floor vote, as he's sometimes discussed.

Texas would do well to get that far (reduce penalties to a Class C for less than 2 oz) by 2017 or '19; next year would be possible but optimistic. Whenever it happens, that would be a huge get. From there, to me it depends on what happens in Colorado and Washington. If it turns out to be no big deal and a new source of tax revenue we're just missing, legalization by 2023 is perhaps on the outer edge of possible. That's not because Democrats might be back in power by then but because the Lege will covet the money and public opinion is rapidly changing. On the other hand, if there's some horrible, unforeseen harm that befalls those states, that might push things back. Any prediction on such matters beyond a five year time horizon IMO is tantamount to fiction writing.

Texas could eventually alter its marijuana policies to the point where they could be dubbed "legalization," but only after a series of false starts, half-measures and incremental steps that will each take time to pass and implement. It's not uncommon for far less controversial legislation to take two or three sessions (4-6 years) or more to pass. And marijuana bills will not fly under the radar.

Bottom line, I agree with Jones' first three points but not his last two. It's definitely significant that Texas does not have initiative and referendum and must pass any new law through the legislative process. That means marijuana reform likely must pass in stages, not in one fell swoop. OTOH, that doesn't mean it's impossible under Republican rule, just that Republicans must be split on the issue. And lo and behold: They are.