Texas Divided

What’s the Future of Cannabis in Texas?

67% of Texans support the sale and use of recreational cannabis, but possession of any amount up to 2 ounces is a Class B misdemeanor.

By Keith Nelson Published in the Spring 2022 issue of Houstonia Magazine

For years, many Texans who preferred to deal with debilitating ailments with cannabis couldn’t do so in the state they call home.

When it comes to cannabis, Texas is divided. A recent survey from the University of Houston and Texas Southern University found that 67 percent of Texans support the sale and use of recreational cannabis, yet possession of up to 2 ounces of cannabis is a Class B misdemeanor and can land people in jail for up to 180 days. Despite that fact, multiple Texas hemp-preneurs have found ways to bring legal cannabis (in the form of Delta-8 and Delta-9 of reduced levels of potency) to Texas residents, including budding new businesses like Wild Montrose in Houston, which is Texas' first legal cannabis-centric dining experience. But despite recent advancements, Texas still lags far behind much of the rest of the country when it comes to access to legal cannabis.

The medical use of cannabis was legalized in Texas when Gov. Greg Abbott signed the Texas Compassionate Use Act into law in 2015. But it did not serve all who need the help. For years, many Texans who prefer to use cannabis to deal with debilitating ailments couldn’t do so in their home state.

“I know many people who struggle with that in the military, and cannabis is something that they lean on to help them, whether it’s with their anxiety or physical pains or whatever they got going on,” says Houston hip-hop legend Paul Wall. “They now have to travel outside to deal with that; that’s not fair to them.” 

Wall is one of many Texans who can attest to how the state’s onerous cannabis laws can negatively affect their lives. In December 2016, Wall and rapper Baby Bash were arrested in Houston and charged with first-degree felony intent to distribute between 4 and 400 grams of a controlled substance for throwing a large private gathering with the Houston cannabis community. They were facing life in prison until the ​​Harris County grand jury decided not to indict them three months later. 

He’s still feeling the repercussions for it. “If I want to apply for TSA PreCheck, they’re like, ‘denied’ because of the arrest,” he says. “Anytime I go out of the country for anything, it’s, ‘What happened right here? Where is the weed at?’”

Even Texas’s most progressive cannabis legislation is fracturing the state further. In June 2019, Abbott signed House Bill 1325, legalizing the cultivation and sale of hemp and hemp-derived products containing less than 0.3% Delta-9 THC. The new law sent ​​cannabidiol, commonly referred to as CBD, flying off the shelves.

“The entire CBD industry in Texas would not have made it through COVID, the shutdowns, and all of the craziness of 2020 without the hemp-derived cannabinoids of Delta-8 and Delta-9,” says Lukas Gilkey, founder and CEO of Hometown Hero CBD. “It would’ve meant the loss of thousands of businesses and tens of thousands of jobs. Hemp-derived Delta-8 and hemp-derived Delta-9 saved that industry.”

Hometown Hero CBD is an online direct-to-consumer cannabis retailer based in Austin, and ​it saw just how much Texans wanted hemp products. Gilkey told Houstonia that Texas accounts for roughly 46 percent of the company’s sales and that 60 percent of its sales are for Delta-8 THC, a less potent compound of cannabis than Delta-9 THC, the primary compound responsible for the high that people traditionally get from smoking marijuana. The passage of HB 1325 seemingly legalized Delta-8 until the Texas Department of State Health Services (DSHS) decided in October 2021 to continue considering Delta-8 a Schedule I controlled substance because it was interpreting HB 1325 as legalizing only hemp products containing under 0.3% Delta-9 THC. The DSHS does not believe that extends to other forms of THC, including Delta-8.

That decision laid down an existential gauntlet for companies selling Delta-8, prompting them to take the popular product off their shelves, continue selling it under a cloud of legal uncertainty, or combat the Delta-8 ban by suing the DSHS. Hometown Hero CBD is one of the companies that decided to take the fight to court and won a temporary injunction on DSHS’s Delta-8 ban, thus allowing it to continue to be sold legally in stores until an upcoming appeals court hearing. 

Jay Maguire, executive director of the Texas Hemp Federation, tells Houstonia that not only did HB 1325 legalize hemp-derivative products, of which Delta-8 is one, but that DSHS is intentionally “misinterpreting” the law for political reasons.

“They know very well that our position is correct," he asserts. "They are responding to political pressure from the people in the Legislature who want these products banned and who lost out federally and when they passed HB 1325.”

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