The state of Texas has a long history of regulating cannabis use. Since 1915, when the first city ordinance was passed banning cannabis in El Paso,[i] the legal landscape in Texas and the rest of the country continues to evolve at different rates. This has resulted in widely varying defined legal guidelines and consequences from the use and possession of cannabis. These legal guidelines/laws related to cannabis continue to be enacted, repealed, and debated in the Texas Legislature today, evidencing strong public sentiment for more accepted, legally permissible uses of cannabis and cannabis products. In recent years, most major cities in Texas have launched programs and adopted policies that reduce, or even eliminate, penalties for the possession of cannabis.[ii] While the Texas Legislature has been slow in changing its position formally in the enactment of laws, a number of bills in the Texas House and Senate being considered during the 2023 session show that a spark continues to create a legal landscape that would foster the participation of Texans and the State of Texas in the lucrative and public-serving cannabis industry.
Recreational use of cannabis in Texas remains restrictive, with law enforcement being inconsistent even between Texas cities. The medicinal use of cannabis in the Texas Compassionate Use Act (the “Act”, 2015), provides for the medical sale and use of cannabis for individuals with specific defined illnesses.[iii] The Act was originally intended for patients with intractable epilepsy and was expanded in 2019 and 2021 to include other physical and mental illnesses (cancer, multiple sclerosis, post-traumatic stress disorder).[iv] Currently, the Act permits a qualified physician to prescribe “low-THC cannabis” (1% by weight tetrahydrocannabinol (“THC”)) for a greater number of conditions.[v] Even with this, Texas is still considered to have one of the most restrictive medicinal cannabis programs in the nation and currently forecloses the prescription of medicinal cannabis permitted in many other states.[vi]
The 2023 Texas Legislature is advancing legislation that would amend the definition of “low-THC” cannabis to a level more consistent with other states and further expand the scope of conditions that medicinal cannabis treatment may be prescribed. Specifically, H.B. 1805 (the “Bill”) seeks to change the definition of “low-THC” cannabis to an increased amount (10 mg/dosage unit, an increase from the current definition of up to 1% by weight).[vii] [viii] Enactment of the Bill into law would expand treatment eligibility to those diagnosed with (a) a condition of chronic pain that a doctor would otherwise prescribe an opioid and (b) a debilitating medical condition designated by the Department of State Health Services.[ix] On April 12, 2023, the Bill was approved by the House of Representatives by an overwhelming majority (127-19) and, as of April 18, 2023, it has moved to the Senate and is under review by the Committee of Health and Human Services.[x] The enactment of the Bill would have a significant positive impact on the Texas cannabis industry and potentially the Texas economy, as legal blocks that prohibit capture of a market share in this growing industry by Texas businesses would be removed.
As support for less restrictive cannabis regulation grows, with a vast majority of Texas voters supporting medical use (82%) and recreational use (67%), and laws/regulations continue to evolve, a greater opportunity for cannabis and cannabis-related business and commerce to grow in Texas on par with benefits enjoyed by other states, appears on the horizon.[xi] With only three licensed medical cannabis dispensaries in the state,[xii] plenty of room remains for entry and growth of new cannabis and cannabis-related industry in Texas as the Texas legal landscape surrounding cannabis evolves.
The Dykema Cannabis Industry Group will continue to monitor and provide updates on the status of cannabis laws in the State of Texas. If you have any questions about this article or about the current state of Texas cannabis laws, please contact Denise Mayfield (Austin, San Antonio) or Antonio Cifuentes (Dallas).
[iii] Tex. Health & Safety Code § 487.001 et seq.
[iv] Texas State Law Library – Cannabis and the Law – https://guides.sll.texas.gov/cannabis/compassionate-use#:~:text=The%20Texas%20Compassionate%2DUse%20Act,THC%20cannabis%20to%20qualified%20patients.&text=This%20chapter%20of%20Texas%20law,cannabis%20to%20certain%20qualifying%20patients.
[v] Tex. Occ. Code § 169.001 et seq.
[vii] Tex. H.B. 1805, 88th Leg., R.S. (2023).
[x] Texas Legislature Online – https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB1805
[xi] The Hobby School of Public Affairs at the University of Houston, Texas Legislative Issues 2023 – Marijuana, p. 2 – 3 (2023).