It’s easy to get confused when it comes to Texas’ pot laws, and the use of Delta 8 THC, particularly, has been controversial. If you’ve been to smoke shops or CBD stores lately, you may have spotted Delta 8 gummies, brownies, and other products lining the shelves.
In this article, we’ll tell you everything you need to know about this cannabinoid, including what it is and whether it’s legal to buy, use, and sell in Texas.
What Is Delta 8 THC?
Delta 8 THC is short for Delta 8 tetrahydrocannabinol, a psychoactive substance that’s naturally occurring in the Cannabis sativa plant—the same plant that produces marijuana and hemp, and over 100 other cannabinoid substances.
However, Delta 8 THC is not found in large amounts within the Cannabis plant, and therefore Delta 8 THC products are manufactured by concentrating large amounts of the substance from hemp-derived cannabidiol—or CBD.
Proponents of Delta 8 THC claim that these products can alleviate various conditions, including:
Despite these claims, the U.S. Food and Drug Administration has so far only approved one CBD treatment—Epidiolex, for the treatment of seizures brought on by a rare genetic disorder.
Three other products—2 of which contain synthetic Delta 9 THC, while the other contains THC-like substances—have also been approved. These products are usually used for the treatment of nausea brought on by chemotherapy in cancer patients.
Why Delta 8 THC Is So Popular in Texas?
The main reason Delta 8 THC is so popular in Texas is that it has become known as the legal way to attain the euphoria, relaxation, and high that marijuana provides.
While marijuana, and any cannabinoids containing a Delta 9 THC concentration of over 0.3%, are illegal for recreational use, the laws for Delta 8 THC have not been as clear.
This has led to many CBD stores and smoke shops in Texas stocking Delta 8 THC products—including gummies, vapor pens, and oil tinctures—openly on their shelves.
Is Delta 8 THC Legal in Texas?
Currently, there are no laws prohibiting the use of Delta 8 THC, but there are also no laws legalizing its use. This leaves Delta 8 THC consumption in a legal gray area in Texas, with decisions actively being challenged in court.
For now, Delta 8 THC remains legal in Texas, however, this may change, and there are circumstances in which a person can still be arrested and prosecuted for the consumption of this substance—we outline these circumstances further down in this article.
Passage of the Federal Farm Bill in 2018 and Delta 8 THC
In 2018, the Federal Farm Bill was passed, legalizing the growing of hemp containing less than 0.3% Delta 9 THC. A year later, Texas’ House Bill 1325 allowed the sale of said hemp products.
Delta 8 is derived from hemp, so it should fall into the same category. This led most people to believe that Delta 8 is legal, too.
However, the Department of Health and Human Services later announced—albeit in a quiet and therefore controversial manner—that Delta 8 was instead classified as a scheduled I controlled substance—a category that contains drugs with no proven medical use, for example, heroin. They tried to ban the sale of Delta 8 THC in Texas until the court granted a temporary injunction prohibiting the ban.
Since the Federal Farm Bill was passed, Delta 8 THC products have been introduced in a variety of ways, often stocked on store shelves across the state. The production of these products is largely unregulated, and the products themselves have not been evaluated or approved for safe use by the FDA.
Will the Delta 8 THC Stay Legal in Texas?
According to the DSHS, Texas laws allow “…consumable hemp products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC),” and “all other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I Controlled Substances.”
The FDA argues that there are several ways in which Delta 8 THC products can put public health at risk. They argue that some products are mislabelled, for example, and can lead to misinformed consumers making choices that harm them.
Between December 1, 2020, and February 28, 2022, the FDA received over a hundred reports of adverse events in patients who consumed Delta 8 THC products—55% of which required intervention, evaluation by emergency medical services, or hospital admission.
But businesses that sell hemp and THC products in Texas, and proponents of Delta 8 THC, are actively fighting back. They believe that the DSHS’ sudden decision puts hundreds, perhaps thousands, of jobs at risk, and that Delta 8 THC does offer medicinal benefits.
The final court trial for the DSHS case had been scheduled for January 2022, however, this was canceled. Another court case could take place in 2023, with some lawmakers determined to bring back the ban on Delta 8 THC. That said, businesses and THC advocates will almost certainly fight back.
For now, it is legal to purchase, sell, and consume Delta 8 THC products in Texas.
Prosecuting the Consumption of Delta 8 THC in Texas
There are a few circumstances in which you could be prosecuted for the consumption of Delta 8 THC in Texas, even though general consumption is currently legal.
If you are on bail in Texas, the judge will have imposed certain conditions by signing an Order Setting Conditions of Bond. Bond conditions are zero tolerance and violating them can quickly result in being jailed. One common bond condition is the prohibition of consumption or possession of any cannabinoids—which includes Delta 8 THC.
Probation and Parole
If you are on probation or parole, there are going to be conditions that you must abide by. A common probation condition is that you may not consume or possess cannabinoids. Breaking probation or parole conditions can end up in arrest, revocation, and sentencing or reimprisonment.
“…not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body…”
Delta-8 Use and Drug Testing
Drug testing will fail if there is a trace of Delta 8 THC in your system. Drug tests cannot detect the differences between Delta 8 THC and Delta 9 THC cannabinoids.
Routine drug testing is usually done for those who are serving probation, or while they are on bail. In these circumstances, the probation or bail condition likely prohibits the use of any—meaning all—cannabinoids. In such a case, it wouldn’t make a difference whether you’ve used Delta 8 or Delta 9 THC, as either would be considered a violation.
The Best Strategy if Arrested for Possession of Delta 8 THC in Texas
Police officers won’t be able to tell the difference between Delta-8 cannabis and Delta-9 cannabis, because they are virtually indistinguishable unless you examine them in a lab. For this reason, you can still be arrested for possession of an illegal substance if you’re found with Delta-8.
Getting arrested and charged is a stressful experience for anyone, with consequences ranging from legal costs to criminal convictions.
If you, or a loved one, have been arrested for possession of Delta-8 THC in Texas, it’s important to remain calm and get in touch with an experienced criminal defense lawyer as soon as possible.
When it comes to drug possession charges, Michael & Associates have dealt with everything, from misdemeanors to felonies. We’ll fight to get you the best outcome possible, so don’t waste valuable time—get your free case review today.
Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.