TX Supreme Court denies DSHS motion for delta-8 injunction removal

“This morning, the Texas Supreme Court denied the State’s Petition for a Writ of Mandamus and its Emergency Motion asking the reinstatement of the injunction against it be vacated,” stated Texas Cannabis attorney Andrea Steel.

Steel further states that the injunction enjoined the effectiveness of the amendments made to the definitions of “tetrahydrocannabinol” and “marihuana extract” in the Texas 2021 Schedule of Controlled Substances (and ordered DSHS to remove them), and the statement on the DSHS website that “Delta-8 THC in any concentration is considered a Schedule I controlled substance.”

For reader clarity, the term enjoined when used in legal setting means to prohibit by a judicial order or to put an injunction on.

Attorney David Sergi working as the primary attorney for Hometown Hero told Texas Cannabis Collective today that this means delta-8 is unequivocally legal for sale, transport, and possession in Texas while our case remains a the court of appeals–which may be 6 months to a year.

Advocates for delta-8 brought a suit against the state in October when DSHS placed on their website that they were moving forward under the presumption that delta-8 was illegal in any concentration after multiple concerned shop owners were told that the substance was not legal to sell in their stores. Shortly after a judge oversaw an emergency hearing to decide whether a TRO would need to be put in place while awaiting a trial on merits to decide a temporary injunction was necessary. Shortly after, the judge denied the TRO.

Less than two weeks later, another judge oversaw the trial on the merits of the case regarding a temporary injunction. Shortly after the hearing on the merits, the judge issued a temporary injunction. Just two days later the state appealed and the injunction was overturned.

“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 at that point in time.

The appeals court gave a decision just shortly over a week later regarding the temporary injunction on delta-8 sales. The injunction against the rule changes made by DSHS would remain in effect.

The state then filed an emergency motion to the SCOTX, which was denied today.

The benefit of all of this right now is that as Steel points out, as we head into the holidays and New Year, countless Texans and people all over the country, including tons of Veterans, will maintain access to products providing significant relief. Plaintiffs and similarly situated companies will be able to keep their doors open and their employees will get to keep their jobs….AND the State gets to keep collecting taxes from these products.

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