court ruling delta 8 not bannable by dshs unless legislature approves is delta8 legal in texas

The Texas Court of Appeals 3rd district ruled yesterday that the Department of State Health Services did not follow procedure and did not have the power to ban delta-8 by placing it on the controlled substances list.

Ask anyone lately and their opinions vary on the substance being sold on shelves known as delta-8 THC. Answers can range from saying it’s wonderful for people’s health to stating it’s a public health crisis waiting to happen. However, this case did not rest entirely on the validity of anecdotal claims made at the bench over the past years.

What was the delta-8 case about?

The case revolves around the Department of State Health Services’ (DSHS) action of modifying the 2021 schedules and declaring delta-8 THC as a Schedule I controlled substance on its website without following the Administrative Procedure Act’s (APA) rulemaking procedures.



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What took place in court?

The trial court placed a temporary injunction against amendments regarding the terms ‘tetrahydrocannabinols’ and ‘Marihuana extract’ in the 2021 Schedule of Controlled Substances. These amendments, as per the Commissioner, attempted to control Delta-8 THC derived from hemp due to its psychoactive properties, among other considerations. The Commissioner’s amendments to the 2021 Schedule of Controlled Substances also aimed to ensure that all forms of THC, except Delta-9 THC at concentrations not exceeding 0.3%, remain controlled substances in Texas.

Hometown Hero and other appellees challenged this action, asserting that it violated the APA and caused imminent and irreparable harm. Initially, the trial court found a valid claim under the APA against the Department and granted a temporary injunction to preserve the status quo before these actions took place. In court, they argued that these amendments were improperly made without following statutorily required procedures and sought to enjoin their enforcement.

The DSHS Plea to Jurisdiction: Sovereign immunity

Statutory Construction:

Standing:

Ultra Vires Claim:

APA (Administrative Procedure Act) Claim:

At the end, the appellate court affirmed the trial court’s decisions, stating the trial court did not err in concluding it had jurisdiction over the appellees’ APA claim against the Department. DSHS claimed it had sovereign immunity from claims against it, and that appelles had no standing making the trial court outside the jurisdiction of the case.

The appeals court also agreed with the trial court on the issuance of a temporary injunction, acknowledging there was some evidence to support the trial court’s finding of probable, imminent, and irreparable injury in the interim.



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So what does this mean?

The verdict signifies that state agencies must adhere to the established rule-making procedures as stipulated under the APA when making substantial changes that could impact personal rights or businesses.

DSHS had made claims at trial that the agency was able to skip over specific rules in given circumstances to change the state controlled substances list, and was allowed to add substances as they saw fit. But according to the verdict, the executive commissioner is required to adopt a rule to control a substance after considering certain statutory factors, indicating that the legislature intended for rule-making to occur to adopt such a rule. This implies that any action to control a substance like delta-8 THC should be carried out within the framework set by the legislature and following the proper rule-making procedures as laid out in the APA. The only time that a procedure outside of the legislative direction can take place is when the federal controlled substances list changes and the state has to adopt a new list to be in line with the federal list.

DSHS is given authority to object to changes when the federal list changes, and if DSHS had wished to keep delta-8 on the list it should have objected to the change and kept it in place. Even with that taking place, the agency would have been required to change the list again when the legislature changed the list by law using HB 1325 to exclude hemp of 0.3%THC(delta-9) and its derivatives.

The Texas legislature legalized hemp for the state in 2019 and wrote very specific language as to what was allowed. Delta-8 is a substance naturally found in hemp and could be considered a derivative of the plant. the legislature did not explicitly direct DSHS to pick substances it believed to be of issue within the plant and govern control of such substances as approved or not.

Will it go to the state supreme court?

There’s no absolute or definitive answer right now, though the likelihood is no. The AG office had initially asked the state supreme court to remove an injunction hear the case, of which in doing so skipped over the appeals court to request this. The result was the injunction was kept in place and directed to follow the path of going to the appeals court. Given the outline of the verdict, it’s highly doubtful that the state supreme court would reverse a decision that could wind up setting precedent that a 4th branch agency can usurp the power over it governed by the state legislature. The likelihood is that they may not take it unless there is a specific part of the case they want to overturn.

As well, given recent events that concern the AG he may not pursue this avenue as his attorney during the impeachment trial was Tony Buzbee. Buzbee has financial interest in ensuring that cannabinoids in Texas stay in place under the Texas hemp program.

2 Responses

  1. Due to the intense chemical processing of Delta 8 THC, it contains dangerous, toxic chemicals. This harkens back to the horrific problem we had with horribly contaminated vape pens and cartridges that caused various deaths and maimed countless more, virtually destroying consumers’ lungs.

    I tried Delta 8 once out of curiosity. That was enough. It was a milder high than from cannabis, and that was easily compensated for by consuming more. – The problem came later. I felt ill for three days afterward, similar to a bad alcohol hangover. I will never touch this stuff again.

    There have been many reports of health problems from consuming Delta 8. – It’s NOT cannabis and shouldn’t be treated as if it were. What most concerns me is Delta 8 becoming so ingrained in the cannabis industry, that we may soon have products that contain it without consumers’ knowledge, innocently thinking they are consuming cannabis.

    The only reason this inferior, difficult to produce product exists is the fraudulently enacted cannabis prohibition. If cannabis stores are going to deal in this product, they need to make the line between it and cannabis VERY clear, with large, prominent labeling so consumers who don’t want to go down the path can easily avoid it.

    1. It does occur naturally. IT can be created by a conversion process as well. One is legal and the other was recently deemed not legal. If you know of companies that are converting it and think they are a danger to the public, why not report them to save people from those dangers that you have evidence of? I would say that most cannabis advocates don’t like a snitch, but the type of snitch they don’t like is one that tattles on people doing no harm to the public. That is not the case that you are describing.