Texas THC Lawyer

Here is an excellent article authored by Chairwoman Stephanie Klick discussing the proposed changes to the Texas Medical Marijuana Bill pending before the State House.

House Bill 1535 would remove the terminal qualifier for cancer, allowing access to the Compassionate Use Program for all cancer patients. The bill also adds chronic pain and PTSD (for veterans only) while empowering the Department of State Health Services to add new qualifying conditions through their administrative rule-making process. HB 1535 would also raise the cap on THC to 5% and create "Institutional Review Boards," which will facilitate research and track the impact of medical cannabis on patients participating in the program.

These are important improvements to the Texas Compassionate Use Program. We would like to offer our recommendations on how the program can further be improved.

  • ●  Allow Doctors to practice medicine by authorizing them to determine the optimal strength and dosage for each individual patient’s medical needs. This means there should be no list of qualifying conditions/symptoms nor any THC cap, both of which restrict a doctor’s ability to properly treat their patients.

  • ●  Move from percentage based dosing to weight based dosing like other prescription medicines. Doctors should be able to recommend how many milligrams of THC, CBD, or other cannabinoids a patient needs rather than using a complicated formula to determine weight from the percentage restriction.

  • ●  Protect doctors from federal interference by allowing them to "recommend" (not "prescribe") low-THC cannabis, which is still a Schedule I controlled substance. This is how all 36 states with effective medical cannabis laws operate.

  • ●  Establish patient protections to eliminate the threat of arrest, prosecution, or penalty in any manner. These protections cover any denial of right or privilege, civil penalty, or disciplinary action, by a court or occupational licensing entity. Parental rights should never be denied, and students cannot be subject to any form of discipline solely because of possession or use of their legal medicine.

  • ●  Authorize independent, third-party testing by certified labs for consumer protection and industry accountability. Currently, no independent lab can test medicine dispensed under the Compassionate Use Program.

The House Engergy and Commerce Committee voted today to expidite the approval process for federal legislation that finally may allow clinical cannabis research by allowing scientists to access marijuana and marijuana products manufactured in accordance with state-authorized marijuana programs.

The Marijuana Research Act of 2019 bill would expidite the approval process for federal cultivation applicants and by providing scientists with the option to utilize products manufactured by state-licensed sources. Under current policy, FDA-approved protocols involving cannabis are strictly prohibited from utilizing cannabis grown under a state license.

“As momentum grows in our effort to end the failed prohibition of cannabis, we also need to address failed drug laws like the ones that make it extremely difficult for researchers and doctors to study cannabis. With some form of cannabis legal in nearly every state, it’s inexcusable that the federal government is still blocking qualified researchers from advancing the scientific knowledge of cannabis,” Rep. Earl Blumenauer said. “The bipartisan support of our legislation in today’s committee markup is an important step in removing unnecessary barriers to medical cannabis research and ensuring that patients, clinicians, and consumers can fully understand the benefits and risks of cannabis.”

The MORE Act would remove cannabis from the Controlled Substances Act and erase some cannabis criminal records. The vote will come during the September work period according to an email Majority Whip Jim Clyburn’s (D-S.C.). This is a major step forward in cannabis reform. No federal decriminalization bill has ever gone this far. Stay tuned or update!

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

congress capitol marijuana

The House of Representatives passed a standalone marijuana reform bill for the first time in history on Wednesday. The chamber advanced the legislation—which would protect banks that service the cannabis industry from being penalized by federal regulators—in a vote of 321-103. All but one Democrat voted in favor of the bill. Republicans were virtually split, with 91 voting for the legislation and 102 opposing it. This is the first standalone marijuana reform bill to ever clear the House. The Bill must now be taken up in the Senate and passed before it can proceed to the President to be signed into law. 

Ever since the Governor signed HB 1325 into law, prosecutors and law enforcement agencies throughout the state have be scrambling to address the fact that crime labs are not properly equipped to test hemp. Marijuana and hemp belong to the same plant family, cannabis sativa, and are virtually identical.  Under previous Texas law, it was a crime to possess any amount of THC, whether it came in the form of hemp or marijuana.  Under the new law, hemp products that contain .3% THC or less, and meet other requirements under HB 1325, are now legal.  

The problem is that crime labs throughout the State lack the proper testing instruments necessary to measure the percentage of THC in suspect marijuana seized by law enforcement. Confronted with this problem, some counties have declined to prosecute marijuana cases until such time as proper testing procedures can be put in place.  District attorneys in Harris, Tarrant, Bexar and Dallas counties have all announced changes to the way their offices will handle marijuana possession, with many counties opting to no longer prosecute for small amounts. 

Smith County District Attorney, Jacob Putman, announced today that his office will continue to prosecute these cases. Putman told area law enforcement officers during the monthly Smith County Peace Officers Association luncheon that the Department of Public Safety estimates it will take about 10 months to equip their laboratories with what they need to determine the THC content of samples. In the meantime, DA Putman announced that his office will continue to prosecute marijuana cases. He added that “Some larger counties say they can’t. I believe that I can, but we are going to have to wait for some of these labs to get up and running.” Although “samples must be sent to a lab for analysis, Putman is confident they will be able to do so within a year, which is under the statute of limitations of two years for marijuana possession charges.” It now remains to be seen how criminal defense lawyers will respond to this policy as it applies to pending marijuana cases in Smith County. 

The Texas Department of State Health Services has added a Hemp Program link ot its website, but the link offers little guidenace for CBD consumers and retailers. Below is a summary. 

What is a consumable hemp product?

A consumable hemp product is a food, drug, device, or cosmetic that contains industrial hemp or hemp-derived cannabinoids, including cannabidiol (CBD). These products may not contain more than 0.3 percent concentration of tetrahydrocannabinol (THC). 

What is DSHS required to do under HB 1325?

When the submitted TDA state plan is approved by USDA, HB 1325 requires DSHS to: 

  • Establish a manufacturing licensure program for consumable hemp products. 
  • Create a registration process for retailers selling consumable hemp products containing CBD. 
  • Work with DPS on random testing for consumable hemp products containing CBD sold at retail. Random testing will not occur until the retail registration process is established after the TDA state plan approval. 

Implementation of HB 1325 will involve the development of rules, which will include a public input process. While DSHS rules development will begin before the TDA plan is approved, final rules cannot be completed until after the TDA state plan approval. Therefore, DSHS may only begin issuing licenses and accepting registrations after TDA's plan is approved by USDA and DSHS adopts rules consistent with the TDA approved plan. The approved plan may impact the implementation of HB 1325, including rules development.

What is DSHS’ role?

DSHS has oversight of food, drug, cosmetics and dietary supplement manufacturers, distributors and retailers, including those that may use or market hemp or cannabidiol (CBD) as an ingredient in those products. Local jurisdictions may also regulate retail sales of food, drugs, cosmetics and dietary supplements, but may not prohibit the sale of consumable hemp products.

DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement. Neither does DSHS administer the  Texas Compassionate Use Act

Can I manufacture consumable hemp products?

The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA. 

Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.

Can I sell consumable hemp products at retail now?

Yes, Section 11 of HB 1325 allows for existing retailers to possess, transport or sell consumable hemp products that become part of the retailers’ inventory prior to the effective date of DSHS rules resulting from HB 1325. The retailer must be licensed as currently required by law. Retailers selling consumable hemp products must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms or residual solvents. Additionally, consumable hemp products sold must not contain more than 0.3 percent THC. 

During routine inspection or complaint investigations, DSHS, within its statutory authority, may detain products, including dietary supplements, that are labeled as or contain hemp, including CBD, and that make unproven health claims, such as preventing, diagnosing, treating and/or curing a health or medical condition. Products that are being manufactured or handled in a manner that creates a health hazard for people who may use it may also be detained. 

Note: HB 1325 contains limitations regarding retail sales of out-of-state consumable hemp products. The products must be processed or manufactured in another state in compliance with:

  1. that state or jurisdiction’s plan approved by the USDA;
  2. in the absence of a state submitted plan, a plan established by the USDA; or,
  3. the laws of that state or jurisdiction if the products are tested in compliance with, or similar to those set out in Section 443.151 of HB 1325.

Upon approval of the Texas state hemp plan by USDA, DSHS will establish a process to register retailers selling consumable hemp products containing CBD. At that time, existing retailers selling consumable hemp products containing CBD and new retailers wishing to sell these products will be required to register with DSHS.

What is the federal status of CBD?

Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics or dietary supplements. 

Because the FDA also has authority to oversee food, cosmetics and dietary supplements, the FDA may take actions on its own relating to the ingredients in foods, drugs, cosmetics and dietary supplements.

What should a consumer know?

CBD is currently available as an FDA-approved prescription drug. DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement, and HB 1325 will not change those parameters. Questions regarding medicinal use of consumable hemp products (including CBD) should be directed to a physician.