Texas Court Enters Injunction Regarding Delta-8 THC

I am pleased to announce that the District Court in Travis County, Texas entered a temporary injunction (TI) this morning in our pending lawsuit against the Department of State Health Services (DSHS) regarding its improper scheduling of delta-8 THC from hemp. A copy of the TI is below. The Court order states:

1. The Court hereby enjoins the effectiveness going forward of amendments to the terms ““tetrahydrocannabinols” and “Marihuana extract” in the 2021 Department of State Health Services’s Schedule of Controlled Substances. More specifically, DSHS shall remove from its currently published Schedule of Controlled Substances the most recent modifications of the definitions to the following terms: “*(31) Tetrahydrocannabinols” and “*(58) Marihuana extract,” and any subsequent publications of the same (if any) until further
order of this Court.

2. The Court hereby enjoins the effectiveness going forward of the rule stated on DSHS’s website that Delta-8 THC in any concentration is considered a Schedule I controlled substance.

I am proud to be part of the legal team with co-counsel Andrea Steel, David Sergi, Katie Frank, Scott Field, and David Gonzalez, representing hemp advocates Sky Marketing Corp dba Hometown Hero, Create a Cig Temple LLC, Darrell Suriff, and David Walden. Special thanks to Lukas Gilkey, owner of Sky Marketing, and our incredible witnesses at Friday’s hearing, Jay Maguire, Darrell Surriff, Jonathan Hamer, Mitch Fuller, and David Walden.

The case continues and matters are rapidly evolving so stay tuned. For the moment, the DSHS list of controlled substances for 2021 is enjoined as to delta-8 THC from hemp and the 2020 list is effective, which removes from hemp and all of its derivatives, extracts, cannabinoids, isomers, etc. from the schedule of controlled substances.

Here is the Temporary Injunction:

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Here is the notice published to LinkedIn today by my colleague, Andrea Steel: 

BREAKING: The District Court has GRANTED the Temporary Injunction in our lawsuit against the Texas Department of State Health Services (DSHS) for acting outside of its authority (ultra vires) and for violating the Administrative Procedures Act!!

This means that TEMPORARILY the amendments to the definitions of “tetrahydrocannabinol” and “marihuana extract” that were made in the 2021 Texas Schedule of Controlled Substances are to revert back to the 2020 definitions. This also means TEMPORARILY the DSHS website portions about delta-8 are not effective.

This TEMPORARY INJUNCTION remains in place until a final trial on the merits or further order of the court. NOTE – things can are very fluid and can still change day to day so make sure you are relying on credible sources for further information.

November 8, 2021

Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.