Juvenile felony charges for vaping THC on the rise in El Paso

This is the first in a four-part series on THC vaping among minors. El Paso Matters will run one story a day through Wednesday. Check elpasomatters.org for future stories.

As a young and anxious El Paso teen facing isolation and depression, Tony turned to marijuana as a way to cope.

The small cylindrical cartridge filled with THC — the psychoactive component in marijuana — that Tony used was easy to hide and emitted little to no odor. But it eventually had Tony, who uses they/them pronouns, facing felony charges for possession of a controlled substance after a drug-sniffing police dog made its rounds at Pebble Hills High School and detected the pocket-sized device.

Now the 15-year-old is part of a growing, and alarming, number of high school, middle school and even elementary school students who are facing penalties usually reserved for some of the most severe offenses.

Throughout El Paso, there has been a dramatic rise in minors facing serious criminal charges for possession of THC vape pens in the last couple of years, according to data obtained by El Paso Matters through public records requests.

Between 2021 and 2022, the number of minors under the age of 17 charged with felony possession of THC more than tripled from 199 to more than 700, El Paso County Juvenile Probation Department data shows. In the first five months of 2023 alone, more than 650 kids and teens – some as young as 10 – faced these charges.

Now, the Texas Department of Public Safety is dealing with a backlog of cases as the agency struggles to get these vape pens tested to ensure they don’t contain legal hemp, which can have low levels of THC.

While possession of up to 2 ounces of marijuana is a misdemeanor in Texas, possession of THC concentrates used in vaping devices is considered a felony punishable by two years to life in prison depending on the amount. Texas is one of only seven states in the country where possession of even a small amount of THC concentrates comes with such steep charges.

A minor just a few miles away in New Mexico would only face a civil infraction and 48 hours of community service for the same offense.

‘Once kids came back to campus, there was this humongous wave of social and emotional problems, a lot of depression, a lot of anxiety. And my kid was one of them.’

“What happened after COVID, once kids came back to campus, there was this humongous wave of social and emotional problems, a lot of depression, a lot of anxiety. And my kid was one of them,” Tony’s Dad told El Paso Matters. “We had no idea that it was an automatic felony because of the concentration of THC in the cartridge. If it had been a joint or even a few joints, it would not be so severe.”

El Paso Matters is not naming Tony or their father to protect their privacy.

For this in-depth report involving interviews with parents, legal experts, educators and researchers, El Paso Matters analyzed data to find out how prolific THC vaping has become among minors; the laws around marijuana and efforts to transform the criminal justice system; the sometimes unsuccessful attempts at addressing substance use in minors; and the emerging research on preventing cannabis use among young people in the constantly evolving landscape of legalization in the United States.

In El Paso, the issue appears to transverse socioeconomic boundaries, with schools serving as the epicenter where youth are getting caught vaping THC and referred to law enforcement.

“This is going on on every campus, and it’s a wide range of kids,” criminal defense attorney Omar Carmona said. “I’m seeing a lot of accomplished kids facing these charges. Kids with great grades that are involved with extracurricular activities and have a fairly great reputation on campus – even they’re using it.”

Emails obtained by El Paso Matters from local school districts describe students being found under the influence in class and admitting to using a THC vape pen. Some were caught vaping at football games or in school bathrooms, while others got caught up in a random drug search. In at least one instance, El Paso Independent School District administrators found a student, who was suspected to be under the influence, in possession of seven vape pens labeled as containing two grams of THC each.

At least 60% of juvenile arrests for THC were conducted by school resource officers, but the number of arrests that took place in schools is likely much higher since local law enforcement will assist districts without its own police force.

Carmona said that in many cases, parents are not aware of the severity of the consequences that come with THC possession charges, which often lead to a host of new problems for youth as they are introduced to the criminal justice system.

‘We’re seeing a lot of good kids that are ending up in an alternative school environment and believe me when I tell you they are miserable.’

After a minor has been charged with possession of THC, their case is typically referred to the county juvenile probation department. At school, many students face additional disciplinary consequences, including placement in alternative school and being barred from extracurricular activities.

“We’re seeing a lot of good kids that are ending up in an alternative school environment and believe me when I tell you they are miserable,” Carmona added.

In Tony’s case, they were allowed to remain in their normal classes under Pebble Hills High School’s vaping first offender program. They were required to wear a uniform to school – something not required of other students

“It was kind of like a scarlet letter kind of thing, like, ‘Look what they’re wearing. They must have fucked up,’” Tony’s Dad said. “What was the point of that? To humiliate them? How was that helping them learn their lesson?”

Even before the arrest, Tony dealt with depression and anxiety and was in therapy for self-harming.

“Part of the reason we insisted on therapy was the cutting,” their Dad said. “So we’ve been on edge about it. We’ve had to keep an eye on them a lot more closely, but it’s harder to do that when both mom and dad are working.”

It took months before Tony got to the desk of a juvenile probation officer for an interview. During that time, the uncertainty of what was going to happen next sent Tony’s mental health spiraling.

“They’re angry about it now, but angry because we’re still clueless. … So some of these issues start compounding themselves in my kid,” their Dad said before the interview.

Now Tony will be taking part in a specialized diversion program for minors who have been charged with possession of THC for the first time.

The diversion program was created in late 2022 by the El Paso County Attorney’s Office and the Juvenile Probation Department in response to the rising number of cases.

El Paso Assistant County Attorney Emily Dawson said the majority of the minors referred to juvenile probation for THC are first offenders, like Tony, who have never faced legal trouble before.

“Our primary focus in my office, since we began to see this increase, was education and services for these kids,” Dawson said. “If they come in with multiple offenses, obviously, that is something that’s going to get referred to the court process. But if they’re a first offender … we will generally refer them into diversion when they come into our system, and that’s because our goal is to get them services and counseling and back to their regular activities as a kid.”

The diversion program also allows the county to avoid having to run tests on the substance inside a vape pen.

“Since the diversion program is voluntary and the juvenile does not admit guilt, we do not send the vapes for laboratory testing since the case will be closed if they complete the program successfully,” Dawson said.

Under Texas law, hemp products like CBD with less than 0.3% THC are legal. Law enforcement officials will typically test the substance to see if it contains THC in order to file charges. Before the charges can be prosecuted, the court must prove the substance contains more than the legal limit of THC.

The El Paso Police Department has a contract with National Medical Services labs to test for THC, but Officer Andres Rodriguez said they are currently unable to tell if it is within the legal limit.

“Right now we don’t know if it’s CBD or it’s not because our lab test doesn’t show a percentage,” Rodriguez said during a recent presentation with the El Paso Advocates for Prevention Coalition. “It just shows positive or negative. So we have all these cases that are getting stacked. Meanwhile, the city is trying to hire a lab that can test a percentage, but that’s a little more expensive.”

Under the diversion program, juveniles are required to take part in counseling sessions and pass a drug test. Dawson said that if they complete it successfully, they will have the opportunity to have their record sealed.

If they fail the drug test, the juvenile may be required to go through a longer diversionary program that could last up to six months, or sent through the court process.

If a minor is found guilty and adjudicated they may need to do probation. Dawson said the standard term in juvenile probation is six months, but some can remain in the program until they are 18 years old.

Under probation, minors may be required to abide by a curfew, submit to random drug screenings and may even be required to wear an ankle monitor if they are considered a flight risk.

Records show that out of the over 1,800 cases referred to juvenile probation for THC in the last four years, 25% were dismissed, 33% are still pending and 36% went through a diversion program. The remaining 6% were adjudicated, the term used in juvenile court for convicted.

Of the 780 cases that were on probation or went through a diversion program, just under 90% were completed successfully.

While there is a common misconception that a juvenile record is wiped clean once the person turns 18, Carmona said that isn’t actually the case.

“In an overwhelming majority of cases (the records are) eligible to be sealed, but the parents or the kid, when he or she becomes an adult, have to petition the court to seal the record. So it’s not an automatic thing,” Carmona said.

Carmon explained that if left unsealed, these juvenile criminal records can still affect a person’s ability to get a job, join the military or qualify for financial aid.

As pot became easily accessible to adults in New Mexico, some parents and educators have wondered if these licitly sold cannabis products are leading to a rise in youth vaping THC.

But Dawson said the county had already seen a sudden rise in THC possession charges among minors before New Mexico legalized marijuana in 2022.

“The increase in kids vaping and getting arrested for THC charges really started slightly before the pandemic,” Dawson told El Paso Matters. “So we can’t tie it to legalization in New Mexico because it was already happening. But what we can tell you is it has also continued to increase since that point, and it’s generally occurring at the schools.”

In 2017, 16 minors under the age of 17 were arrested for possession of THC vaping cartridges, according to Dawson, and 40 were arrested in 2018. In 2019, the number jumped to nearly 250.

Dawson noted that the number of juvenile vaping-related THC charges dwindled during the pandemic lockdowns, but started to pick up again as students returned to in-person classes. Only 65 minors were charged for possession of THC concentrates in 2020, data shows.

While the vast majority of students facing felony charges for vaping THC are 13 or older, a growing number of younger kids have been added to the list in recent years.

In 2021, the youngest children charged with a felony for a THC vape pen were 11. In the first three months of 2023, at least five 10-year-olds were charged with felony THC possession.

Still, officials noted that these cases are likely outliers.

The recent rise in young people vaping THC isn’t unique to El Paso. Research shows vaping has been increasing as the most popular method of consuming marijuana among adolescents in the U.S.

About 15% of students in the U.S. between the ages of 9 and 19 admitted in 2022 to vaping THC at least once in their lives, and about 8% had done it in the previous 30 days, according to the Center for Disease Control and Prevention’s National Youth Tobacco Survey.

Additionally, the number of high school seniors who admitted to vaping THC at least once rose from 12% in 2017 to 28% in 2022, according to the ongoing Monitoring the Future drug use study — which surveys an estimated 50,000 U.S. students every year. The survey also found that in 2022, 15% of high school seniors admitted to vaping THC at least once in the previous 30 days and 2% said they did it daily.

Still, the survey found that the vast majority of students in the U.S. disapprove of vaping THC, though it can vary by age, with a disapproval rate of 80% in 8th grade, 73% in 10th grade and 68% in 12th grade.

Dawson noted that the rise in juveniles who are vaping THC may simply be because of ease of access.

“It’s unfortunately very easy to get a hold of any THC device,” Dawson said. “In many cases now, because of how online children are, they can talk to drug dealers via things like Instagram and get it delivered to their house. It is true that some of it is probably coming in from places like New Mexico and Colorado, but what we know is that it is readily accessible.”

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Claudia Silva was born and raised in El Paso and studies journalism at New Mexico State University. She's covered a number of topics, from education to arts and culture, in both Texas and New Mexico. More by Claudia Silva