The Texas Supreme Court ruled Friday a group of hemp retailers were harmed when the Department of State Health Services effectively criminalized delta-8.<\/p>\n
But the court lifted a temporary injunction granted against the department \u2014 meaning for now, DSHS has the authority to classify delta-8 as a Schedule I controlled substance.<\/p>\n
In its finding, justices ruled the agency’s commissioner had the authority to change the classification.<\/p>\n
Schedule I substances are defined at the federal and state level as drugs with no accepted medical use and a high potential for abuse, and possessing or distributing them has criminal consequences.<\/p>\n
That’s despite the court also ruling the businesses likely faced loss of sales directly related to the state\u2019s reclassification.<\/p>\n
\u201cOur confidence in this conclusion is reinforced by the fact that manufactured delta-8-THC products have sprung back, and the hemp industry has operated and openly sold them without fear of department penalty, during the pendency of the trial court\u2019s temporary injunction,\u201d Justice Evan Young wrote for the court.<\/p>\n
So while the court ruled the businesses had standing, it reversed a lower court\u2019s pause on its enforcement. It\u2019s not clear if the underlying suit will continue after the high court\u2019s ruling.<\/p>\n
DSHS, however, can only impose civil penalties under the Texas Controlled Substances Act, not criminal. According to the Texas Supreme Court\u2019s opinion, the website notice has no independent legal effect, no one can be civilly penalized for violating the statement and DSHS says it won\u2019t enforce the website statement.<\/p>\n
In a statement Friday, the Texas Hemp Business Council \u2014 whose leader is also the chief strategist for plaintiff Hometown Hero \u2014 said the group is actively evaluating the Texas Supreme Court\u2019s decision and its potential implications for the case.<\/p>\n
“THBC remains prepared for the next phase of this case, including an expected appeal and will continue working to maintain the injunction and its full scope,” the statement reads.<\/p>\n
KERA News has reached out to DSHS for comment and will update this story with any responses.<\/p>\n
Road to legalization<\/p>\n
The 2018 U.S. Farm Bill redefined “hemp” and removed cannabis products with less than 0.3% delta-9 THC from the federal Schedule I. Texas<\/a> adopted the federal definitions the next year within its own 2019 Texas Farm Bill.<\/p>\n The Drug Enforcement Administration changed<\/a> its regulations in 2020 to comply with the farm bill. But DSHS, under former commissioner John Hellerstedt, objected to and refused to enforce the DEA\u2019s new rule.<\/p>\n DSHS issued a notice<\/a> on its website in 2021 classifying any amount of delta-8 THC and any amount of delta-9 over 0.3% as Schedule I controlled substances \u2014 effectively making them illegal.<\/p>\n Sky Marketing Corp., doing business as Austin-based hemp retailer Hometown Hero, and other retailers sued<\/a> DSHS to prevent the agency from enforcing the notice. The company alleged DSHS acted outside its authority when it reclassified hemp products and didn\u2019t follow the proper rulemaking procedures under the Texas Administrative Procedure Act or APA.<\/p>\n An Austin trial court issued an injunction<\/a> preventing the DSHS rule from taking effect. An appeals court affirmed the injunction, and DSHS appealed to the Texas Supreme Court<\/a>.<\/p>\n Friday’s ruling<\/p>\n Justices now side with DSHS, ruling the department is protected by sovereign immunity \u2014 a legal principle that protects the state and state agencies from suit \u2014 because Texas law gives the agency the authority to classify delta-8 as a Schedule I controlled substance.<\/p>\n The court also ruled the website notice isn’t subject to the Texas Administrative Procedure Act, dismissing the plaintiffs’ claim that DSHS didn\u2019t follow the proper rulemaking procedures when it issued the notice.<\/p>\n Justices also ruled the 2019 Texas Farm Bill did not legalize \u201canything more than the exceedingly trace amounts of delta-8 THC that naturally occur in hemp.\u201d The court acknowledged that the DSHS website notice could theoretically criminalize naturally occurring delta-8 \u2014 but the commissioner says this type of THC is tolerable under current rules.<\/p>\n \u201cThe legislature clearly defined \u2018hemp\u2019 to encompass the plant itself and the compounds as found in the plant,\u201d Young wrote. \u201cThe legislature gave that inch, but the vendors claim a mile\u2014that the legislature exempted all THC, even in non-naturally-occurring ways. We reject that contention, which would unsettle the structure of this highly regulated area of law and inject the judiciary into matters wholly occupied by the other branches.\u201d<\/p>\n The high court\u2019s ruling comes as, in a separate case<\/a>, a group of hemp businesses is asking a Travis County judge to block state rules that prevent stores from selling smokable hemp products and increase fees for those businesses. Judge Daniella DeSeta Lyttle lifted that ban with a temporary injunction and ruled Friday<\/a> that key parts of the hemp regulations will be blocked while the case proceeds.<\/p>\n Toluwani Osibamowo is KERA\u2019s law and justice reporter. Got a tip? Email Toluwani at\u00a0tosibamowo@kera.org<\/a>.<\/p>\n