Since Texas lawmakers in 2019 legalized some forms of the cannabis plant but not others, marijuana prosecution cases around the state have been thrown into disarray, and enforcement can vary greatly depending on where you live.
A new Texas law sought to bring the state in line with a 2018 federal law that legalized hemp while keeping marijuana illegal. The result: widespread confusion.
Here’s how Texas law currently stands on marijuana and other cannabis-derived products.
Marijuana and hemp are often indistinguishable by look or smell because they both come from the cannabis plant. The difference amounts to how much of the psychoactive compound THC, or tetrahydrocannabinol, they contain.
Marijuana is classified as a cannabis plant or its derivatives that have a THC concentration of more than 0.3%. If the substance has less THC, it’s considered hemp.
Cannabidiol, or CBD, is a nonpsychoactive compound of cannabis. Businesses may sell it throughout Texas as long as its THC concentration is less than 0.3%. Supporters claim it can alleviate conditions such as anxiety, depression and insomnia. The U.S. Food and Drug Administration hasn’t evaluated many of those claims and has approved only one CBD treatment so far, Epidiolex, to treat seizures related to a rare genetic disease. It’s also approved three products that contain synthetic THC or THC-like chemicals.
Delta-8 is a psychoactive substance that is naturally produced in small amounts by cannabis plants. When concentrated in a lab, delta-8 can produce a similar “high” to marijuana, leading to its popularization.
It is still illegal to use or possess marijuana under Texas law — and has been since 1931. What changed in 2019 is that hemp is considered different from marijuana.
Manufacturing, however, is a separate issue. While hemp is legal to buy, sell and possess, the Texas Department of State Health Services bans the processing and manufacturing of smokable hemp within the state. That ban was upheld by a Texas Supreme Court ruling in June 2022, according to the Dallas Observer.
Medical cannabis is legal in Texas in very limited circumstances. Through the Texas Compassionate Use Program, Texans with a variety of conditions — such as epilepsy, autism, cancer and post-traumatic stress disorder — can access cannabis oil with less than 1% THC by weight. Medical cannabis can treat the symptoms of some of these diseases or reduce the side effects of other treatments, such as alleviating the nausea and loss of appetite associated with chemotherapy or reducing nightmares in patients with PTSD.
The fate of delta-8, however, is unclear. CBD businesses initially began selling delta-8 in Texas because its low THC concentration qualifies it as “lawful marijuana extract” under HB 1325. But in 2021, DSHS attempted to halt sales by classifying delta-8 as an illegal substance.
Delta-8 remains legal in Texas as an ongoing lawsuit against DSHS determines whether the agency can outlaw delta-8. A district court judge ruled DSHS didn’t follow Texas’ rule-making requirements when it listed delta-8 as an illegal drug and therefore can’t enforce the order making the drug illegal. The injunction will last only until there’s an official decision in the case. Hometown Hero, an Austin-based dispensary involved in the legal battle, did not respond to a request for comment, but said in a January 2022 YouTube video that no court date had been set for the case.
In May 2021, a federal court in California ruled in a separate suit that delta-8 products fall under the legal definition of hemp — and are therefore federally legal — so long as their THC concentration remained under 0.3%.
There are too many unanswered questions to make definitive claims about whether cannabis-derived products are safe or not, though the FDA says it’s currently working to gather more information about the safety of cannabis use. The Texas Medical Association has also called for more comprehensive study about the safety of cannabis-derived products and their efficacy as a medical treatment.
The Mayo Clinic, a medical nonprofit, writes that medical marijuana and CBD products are generally safe and well tolerated, and there is some evidence to show that it may treat the symptoms of specific diseases, such as multiple sclerosis.
However, any cannabis-derived products besides Epidiolex, Marinol, Syndros or Cesamet are not FDA-approved or evaluated to treat any disease or condition. The FDA warns they may also interact with other medications, leading to reduced efficacy or adverse side effects. It may also worsen the symptoms of mental health conditions, such as depression or bipolar disorder, according to the Mayo Clinic.
Cannabis-derived products may also cause side effects of their own, especially when used in large amounts. The FDA cautions that CBD products can cause liver damage, changes in mood and appetite and may impact fertility. There have also been reports of delta-8 products causing hallucinations, vomiting and loss of consciousness. In September 2021, the Centers for Disease Control and Prevention released a health advisory warning that it had observed an increase in health emergencies associated with delta-8 usage as the drug became more popular. Many of the cases involved children being exposed to the drug, which is often sold in gummy and other candy forms.
Another safety concern is the potential contamination of non-FDA-approved products. Some CBD and delta-8 products can contain unsafe levels of household chemicals and other contaminants, such as heavy metals and pesticides. Some products labeled as CBD have also been found to contain THC, according to the Mayo Clinic. In April 2021, the U.S. Cannabis Council, a coalition of individuals, organizations and businesses advocating for the legalization of cannabis, tested 16 samples of delta-8 products sourced from across the country, including Texas. The testing, though limited, found that each of the products tested contained an illegal amount of THC, and several of the products contained copper, nickel and other toxic heavy metals.
The lack of a standardized formula is in part what makes it difficult to determine the general safety of using cannabis-derived products. Because THC and CBD concentration can vary so widely in product to product, it makes it hard to conduct reproducible trials on the effectiveness of the drug because it's difficult to get a consistent dose every time, according to Texas-based neurologist Sara Austin.
In pharmaceutical-grade products such as Epidiolex, the FDA-approved seizure medicine, the dosage can be standardized across all products and tested in clinical trials. The same isn’t true of medical marijuana in Texas, in which case it’s up to individual doctors to decide how much to prescribe based on recommendation, rather than scientific data, Austin said.
You should not use THC or CBD products if you’re planning to drive. CBD can cause sleepiness or drowsiness, according to the FDA, and can impair your ability to drive.
In 2019, the U.S. Surgeon General also cautioned that marijuana usage during pregnancy and breastfeeding can disrupt fetal brain development and may lead to lower birth weight.
Nineteen states and Washington, D.C., have legalized recreational marijuana possession, according to U.S. News. In those states, marijuana use and possession is still regulated, but people are not criminally or civilly punished under state law.
As of May 2022, 10 states, including Texas, allow access to CBD products with low THC concentrations. Seventeen states allow higher THC concentration marijuana use for medical purposes, according to the National Conference of State Legislatures. Three states — Idaho, Nebraska, and Kansas — have no public cannabis access program.
In 27 states and Washington, D.C., possession of small amounts of marijuana for personal use has been decriminalized. Under many of these state laws, it is still illegal to use marijuana recreationally, but prosecutors do not press criminal charges. Instead, offenders face civil penalties, which usually include fines or drug education programs. However, in Texas, people arrested or cited for marijuana possession may still face legal penalties depending on the amount.
As of July 2022, 14 states have banned either delta-8 specifically or all unregulated forms of THC, which includes delta-8, according to NBC News.
In Texas, possession of up to 2 ounces of marijuana is a Class B misdemeanor, which can be punishable by up to 180 days in jail and a $2,000 fine.
Possession of 2 ounces to 4 ounces of marijuana is a Class A misdemeanor that can result in a fine of up to $4,000 and up to a year in county jail. Possession of any amount more than 4 ounces would result in a felony charge.
Possession of drug paraphernalia — such as pipes or bongs, but not marijuana itself — is a Class C misdemeanor, which is punishable by a fine up to $500, but no jail time.
During the 2021 legislative session, both Republicans and Democrats in the Texas House made renewed attempts to lessen criminal penalties for marijuana possession. Some of the bills introduced included getting rid of jail time for possession of small amounts of marijuana and eliminating automatic driver’s license suspensions. Some passed the House, but none were successfully signed into law.
Both Gov. Greg Abbott and Beto O’Rourke, the Democrat running against him in the race for governor, have voiced support for decriminalizing marijuana, with O’Rourke campaigning on legalizing the drug.
In its official platform, the Texas Republican Party supports the federal government moving cannabis from a Schedule I drug — drugs with a high potential for abuse and no medical usage — to a Schedule II drug — drugs that have accepted medical uses but still have a high potential to be abused. While this change would federally recognize cannabis use as a medical treatment, it would still remain illegal for recreational use at the federal level.
Many Texas prosecutors, Republicans and Democrats alike, are dropping low-level marijuana possession charges and declining to pursue new ones altogether.
Before the hemp law passed, law enforcement agencies in Harris, Dallas, Bexar and Nueces counties had already stopped arresting many people found with small amounts of the drug on a first offense. Instead, they may offer diversion programs to keep defendants out of jail or issue citations for people with a misdemeanor amount of marijuana.
In June 2019, the Texas Department of Public Safety — the state’s largest law enforcement agency — ordered its officers not to arrest people but to issue citations if possible in misdemeanor marijuana possession cases, which still carry a penalty of up to a year in jail and a $4,000 fine.
The Austin City Council voted unanimously in January 2020 to end most arrests and fines — and ban spending city funds on testing — for possession of small amounts of marijuana. Those policies were codified this May, when Austin voters approved a ballot measure effectively decriminalizing marijuana.
Other cities, such as El Paso and Plano, have begun using “cite-and-release” policies, in which people found possessing small amounts of marijuana will be cited instead of arrested. These policies don’t completely decriminalize marijuana — those cited may still face fines and potential jail time — but they do reduce arrests and immediate jail time.
In Bexar County, cite-and-release policies saved $2.6 million in taxpayer money between July 2019 and December 2020 by reducing the number of people held in county jail for misdemeanor marijuana offenses and the number of cases being prosecuted by the local district attorney, according to KSAT.
After the 2019 bill was passed that legalized hemp in Texas, Gov. Greg Abbott and other state officials insisted that the bill didn’t decriminalize marijuana. But the law was still followed by a large decline in marijuana arrests across the state as some counties stopped prosecuting marijuana possession cases and others lacked the testing capabilities to differentiate between marijuana and legal hemp.
Prior to June 2019, when the law went into effect, Texas prosecutors filed upwards of 5,000 misdemeanor marijuana possession cases a month. That then steadily declined, dropping below 2,000 cases a month by November 2019.
Between January and May of 2022, 1,745 marijuana possession cases were filed per month on average, according to data by the Texas Office of Court Administration.
Polls have shown that support for some form of marijuana legalization has stayed strong throughout the past few years.
In a June 2018 University of Texas/Texas Tribune Poll, 84% of the state’s voters would legalize pot, either just for medical use (31%), in small amounts (30%) or in any amount (23%).
A May 2022 by The Dallas Morning News/UT-Tyler found similar support for legalization: 83% of Texas voters would support legalizing marijuana for medical use and 60% would support legalizing recreational use.
Disclosure: National Conference of State Legislatures (NCSL) and Texas Medical Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
Join us at The Texas Tribune Festival, happening Sept. 22-24 in downtown Austin, and hear from 300+ speakers shaping the future of Texas including Joe Straus, Jen Psaki, Joaquin Castro, Mayra Flores and many others. See all speakers announced to date and buy tickets.