Texas smokable hemp ban temporary injunction heard by 3rd Court of Appeals

The Texas smokable hemp ban temporary injunction was heard by the Third Court of Appeals on Austin’s Zoom Oral Argument for Case# 03-20-00463-CV live stream.

This hearing does not pertain to the trial itself and the merits of the trial, but solely to the temporary injunction for the smokable hemp ban in Texas. If the appeals court upholds the ban, then everyone awaits the ruling of the district court while the ban is not in effect for that time. If the appeals court does not uphold the temporary injunction on the ban, then the ban will be back in effect and the hemp industry will have to wait for the trial court to state its findings on the topic of smokable hemp bans.

Shane Pennington appeared on behalf of the plaintiffs and Charles K. Eldred appeared on behalf of the appellants which is the State of Texas.

State Attorney Charles Eldred stated that plaintiffs never asked for the manufacturing process ban to be considered invalid. Eldred continued with noting that some of their rules were required by legal statute (manufacturing and processing of smokable) and that all of the DSHS rules were enjoined together when they should not have been.

Judge Gisela Triana did note that the plaintiffs did ask the court for the statues to be enjoined together and that the manufacturing and processing of smokable hemp were requested by the plaintiffs.

Eldred stated, “in my opinion, The court should not have enjoined the manufacturing and process prohibitions without also enjoining the statute…the plaintiffs are not entitled to that relief because they did not ask for that relief, they did not ask for those prohibitions to be found invalid.”

Eldred stated that all DSHS has done with the retail and sales ban is nothing more than the regulatory agency pulling together statutes from several areas to make it easier for people to find the complete regulation in one place. He notes that manufacture means to make a product for retail sale and purchase.

Judge Kelley then asked if Chapter 443 was clear in that it distinguished between manufacturing and selling and creating separate licenses for manufacturesr of consumable hemp and registartion for sellers?

Eldred explained to the court that smokable consumable hemp is defined as food. That manufacture is defined differently for 4 different areas. Smokable hemp is defined as food because of the definition of manufacture for food.

“No other smokable product is known as food in any other known law. But this law very specifically calls a smokable product a food, and it may not make any sense to people but that’s what the law says,” Eldred told the court.

Pennington pointed out before getting to specifics about what Eldred brought up and that he wanted to frame things, such as the court not needing to reach the merits.

Penning then stated, “It is a well-settled rule the court is familiar with, that when there is a judgement and there are not findings of facts and conclusions of law and where the trial court has not said the basis of its ruling and where there are multiple potential bases for that ruling, the appeals court will uphold the trial courts judgement on any basis supported by the record and will presume the trial court made the finding necessary for that judgement, and the result of that and implication of that for the appellants is that for a judgement to be reversed on appeal, they must attack each potential basis for the trial court’s ruling if they don’t and only attack one, the presumption that favours the trial court having made the findings necessary to support its judgement on the alternate ground means that this court should affirm.”

Justice Goodwin points out that a plain and intelligible statement had to be given to the trail court for relief. The statement was that the statute was unconstitutional. On the TI the trial court said I’m going to enjoin the rule and deny-in-part. Then Goodwin asked what the deny in part waas about.

Pennington stated that there were two claims and asked for declaratory relief along those lines. To preserve the status quo asked for TRO and TI barred defendants from enforcing the rules. The reason for that is that the statute the legislative band is not self-executing, in other words, the way that it is worded is a command the agency make a rule, and in the absence of a rule, there is irreparable harm in the background that hasn’t been activated.

“Out of caution, we asked the court to enjoin them so the department couldn’t make a back rule of enforcement,” Pennington told Goodwin

Pennington then explains that the denial portion was that both don’t need to be done to stop the enforcement of the rules and preserve the status quo of the time before the rule went into effect. The defendant could have asked for findings of fact and conclusion of law and clarify this and it wasn’t done. They did not attack each potential basis and the trial court concluded with that and the appeals court should uphold that instead of having to look at all merits instead.

Pennington continued that there is an issue not addressed and that was the temporary injunction to prevent harm was dissolved, and there was a window of a few days where the issues requested, all because of a letter. It created a no zone of protection for even the most important liberty rights while the plaintiffs prepare for a court an emergency motion to reinstate that order. This did end up causing harm (monetary) because attorney’s for the plaintiff had to scramble to get in front of the court for an emergency motion. For the actual clients, this places a burden.

He concluded this point by noting that implicating that manufacturing means to distribution and retail sales ban to accomplish a manufacturing ban does not make any sense.

The court then that asked both Pennington and Eldred, “how do we apply a broad prohibition from a carved exception. Are you familiar with any other statutes that do that?“

Pennington responded with no and claimed they cited briefs from cases with public utilities that involved this and they would lean in their favor. there The state responded with a no as well.

Eldred then continued to state that the plaintiffs have been trying to rewrite their argument and change the argument in court to an argument that is about constitutionality. He reiterated that DSHS is not extrapolating the rule of manufacturing.

“From the beginning, though the plaintiffs in the case have put forth that their case was no only on the smokable hemp retail and sales ban implemented by DSHS, but also the constitutionality of the manufacturing ban set forth by the legislature,” Eldred stated.

The court will take in this information and announce the judgement on the temporary injunction appeal in the future.