May 9, 2026
Professor Emeritus of Law at Baylor University Ron Beal filed an amicus brief referring to the ruling as “shocking, ” and a “gross violation of the rule of law,” among a few others jabs aimed at the state’s highest court.
For some background, Baylor University has posted on their law school website the following information, “Professor Beal has developed an expertise in Texas administrative law. He has authored numerous law review articles that have been cited as authoritative by the Texas judiciary, taught training courses for administrative law judges and lectured in advanced courses for practicing lawyers.”
This isn’t just some random professor within the Texas system. This is a man that the courts consider the authority. And then the man wrote this amicus brief on his own volition without prompting within several days of the ruling. That means this ruling is seriously inappropriate and he knows it.
The entire ruling has numerous tensions and conflicts going on within it that lead up the brief Beal responded with. First is that the court acknowledges a real statutory conflict, then dismisses it as unenforceable. The court concedes that there is “at least some theoretical tension” between the 2021 Schedules and the 2019 Texas Farm Bill because naturally occurring delta-8 THCand the derivatives in hemp were decontrolled by statute, but the 2021 Schedules appear to re-control it.
Regarding naturally occurring delta-8 the Court then says this doesn’t matter because the Commissioner “represented to the Court” that she wouldn’t enforce it against naturally occurring delta-8, and such amounts are nearly undetectable anyway. So what is the resolution when the commissioner does decide to enforce it in the future?
Then regarding any other foms, the legislature put derivatives inside the definition of hemp. The Commissioner put derivatives inside the definition of controlled synthetic substances. The same word is doing opposite legal work in two overlapping statutory schemes, and the Court never reconciles this. It simply decides the Commissioner’s use wins because she has broad discretion.
Here’s an even bigger problem with that: Texas courts, including this one, have consistently held that statutory interpretation begins and ends with the plain text when that text is clear and unambiguous. The Court even quotes this principle in the opinion itself.
But then it does something textualism doesn’t permit: it appeals to legislative intent and social policy weight to override the plain text. Specifically it says:
That is purpose-based reasoning, not textualism. The Court is saying “we don’t think the legislature meant to do this,” which is precisely the move strict textualism is supposed to prohibit. You don’t get to invoke legislative intent when the text is inconvenient and demand literal interpretation when it supports your result. The Court applied textualism when it helped the state and purposivism when the text helped the vendors, in the same opinion, without acknowledging the switch.
The Court invokes the canon that legislatures don’t “hide elephants in mouseholes” to reject the vendors’ reading that the 2019 Farm Bill implicitly legalized all delta-8. Fair enough. But the Court applies this principle only one direction. The Commissioner’s 2021 action also represented a significant regulatory change with major economic consequences for a newly licensed industry. She didn’t just clarify existing law; she effectively re-controlled a substance that businesses and regulators had treated as legal for over a year, and the department had issued licenses for that business activity. Which implies the commissioner approved of such business.
If the elephant-in-mousehole canon guards against sweeping change by implication, it should cut against both the legislature’s alleged implicit decontrol and the Commissioner’s implicit re-control. The Court applies it only against the vendors.
The opinion notes that the department issued hemp licenses (including to Sky Marketing in September 2021, the same year as the disputed schedules) and that businesses operated openly for over a year under the assumption that delta-8 was legal. The Court acknowledges all of this. Yet it characterizes the 2021 amendments as a “clarification” of existing law rather than a reversal of the regulatory posture the department itself had adopted. If the department was issuing licenses for delta-8 businesses while delta-8 was supposedly already illegal, it wasn’t clarifying the law, it was changing course.
The Court repeatedly emphasizes that the Commissioner’s §481.034(g) objections are “final unless altered by statute,” meaning courts can’t review them. Then it proceeds to review her actions in considerable depth, concluding she acted within her authority. If the finality clause truly rendered her decision unreviewable, the merits analysis in Section III is dicta. The Court appears to want it both ways: reaching the merits to shore up its reasoning while also asserting the result is jurisdictionally compelled.
The Court’s stated basis for reversing the injunction is sovereign immunity, the vendors’ ultra vires claims fail, so the state is immune, end of story. That’s a jurisdictional conclusion. Once a court decides it lacks jurisdiction, technically it’s supposed to stop there. It doesn’t need to also go through the whole “and here’s why delta-8 is correctly scheduled” analysis.
The Court did that analysis anyway. So the question becomes: was all that reasoning about derivatives vs. synthetics, the Farm Bill, the mousehole canon, was any of that necessary to the decision?
If the answer is no, it’s dicta. Persuasive, coming from the highest court in Texas, but not strictly binding precedent the way a holding is.
The Court ruled the DSHS website statement wasn’t an APA “rule” because it had no independent legal effect and couldn’t be enforced on its own. But earlier in the same opinion, the Court cited a similarly situated business receiving a criminal enforcement threat tied directly to that same department position on delta-8 along with civil penalties combined with economic loss, and used it to establish that the vendors’ injuries were real and coercive enough to grant standing.
A statement cannot be too legally inert to qualify as a rule and simultaneously coercive enough to constitute a concrete injury. The Court never reconciled this. It used the enforcement threat when it needed standing to exist, then abandoned it when the APA claim required acknowledging the statement had legal weight. Beal called the Court’s reasoning on this point exactly what it was: “a pie in the sky declaration.”
Beal goes further. He argues the problem isn’t just the website statement, it’s the schedule modifications themselves. Under Texas Government Code §2001.036(a), a rule has no legal effect until filed with the Secretary of State. Beal asserts that filing never happened, meaning the 2021 Schedules the Court spent pages defending were legally void from day one. The Court’s opinion never addresses the filing requirement at all. For Beal, ignoring clear and unambiguous statutory language to avoid that conclusion is nothing less than a “shocking, gross violation of the Rule of Law” that renders “the APA a joke” where “the words mean nothing.”
The practical consequence is severe: if Beal is right, DSHS cannot simply remand and cure the defect. The “rule stays in effect during remand” provision under §2001.040 only applies to rules already legally in effect. A rule that was never validly filed was never in effect. DSHS would have to complete the entire rulemaking process from scratch. As Beal put it, this Court “literally rewrote the law and avoided embarrassment by ignoring a literal reading of it.”
For Texas administrative law, the stakes extend well beyond delta-8. Beal warned that the opinion will “severely affect administrative law in general” by signaling that agencies can bypass the APA whenever a court decides their regulatory scheme feels sufficiently specialized. It is, in his words, “a very sad day for Texas jurisprudence.”
Stay tuned for updates and report on what possible paths forward exist in this situation.
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