EDIT: Updated with information from Lukas Gilkey at Hometown Hero
On Wednesday afternoon, DSHS filed a notice of appeal on the delta-8 decision that was handed down Monday morning of this week.
That action from the state puts delta-8 and other hemp-derived THC isomers back on the state’s 2021 list of controlled substances.
“The Texas Rules of Appellate Procedure provide a mechanism to the Attorney General’s Office to automatically suspend a temporary injunction duly entered by a co-equal branch of government. This forces the Plaintiffs to then seek redress with the appellate court. As long as this rule stands in Texas, the state of Texas and its agencies can ignore any injunction covering any subject matter entered by any trial court in the entire state of Texas simply by filing a notice of appeal and invoking the rule with the correct requesting language. This is not how due process works in America,” cannabis attorney Chelsie Spencer told Texas Cannabis Collective on Monday when the injunction was put out on Monday morning.
The appellate court will have to be reached by the plaintiffs in the case to have the appeal put back in place. If the appellate court will not hear the appeal for the injunction to be implemented again, everyone will have to wait until the final trial on the merits. The case was originally heard for the temporary injunction on Friday, November 5th.
Lucas Gilkey of Hometown Hero posted a video about what is transpiring, on YouTube late Thursday morning.
“The state is required to respond to our motion by Monday the 15th, and we should receive a ruling shortly after. So it’s not hugely complex. So when we get an injunction granted, the state automatically is triggered. It’s my understanding. It’s triggered to file an appeal, and then the appeal has to go to the appellate court,” Gilkey states in the video.
Gilkey continued with a quote from another article where the headline was that DPS has not arrested at all for this. He reads aloud that the article states “So far, the Texas Department of Public Safety, the state’s law enforcement agency, has yet to make one arrest. Quote, DPS will continue to base its enforcement efforts on current statutes, said Erica Miller, a DPS spokesperson. And because there’s no law against the substance, there have been no arrests by state troopers.”
A reminder though can be given that DPS is not the only agency in the state with the power to arrest people, local police and county sheriff’s offices may be operating under different instructions as the Montgomery County DA vocalized their opposition to the current law the legislature passed. As well, during the hearing last week, a shop owner came forward as a witness to testify that the city of Copperas Cove was threatening legal action against him for selling the products.
Gilkey concluded on the topic later in the video that we should have a ruling shortly after that November 15 deadline.
As stated in the original temporary injunction, “The order concludes IT IS FURTHER ORDERED, ADJUDGED, and DECREED that a final trial on the merits is set for January 28, 2022.”
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