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Delta-8 legal in Texas, for now. Travis County judge blocks State from criminalizing the cannabis extract

A Travis County judge granted a temporary injunction against the State to ensure selling or obtaining delta-8 is not a felony offense.

AUSTIN, Texas — Delta-8 tetrahydrocannabinol (THC) products are legal in Texas – for now – after a Travis County judge granted a temporary injunction against the State to ensure selling or obtaining delta-8 is not a felony offense.

This comes after an Austin CBD shop filed lawsuit against the Texas Department of State Health Services (DSHS) and its commissioner in response to a recent update stating delta-8 products are still considered an illegal substance in Texas.

Sky Marketing Corp., doing business as Hometown Hero, is seeking a temporary restraining order and temporary and permanent injunction. Its goal is to stop DSHS and other state and local agencies from taking “enforcement action” against businesses or individuals in possession of certain hemp products.

According to a document dated Nov. 1, a district attorney in Montgomery County has requested an opinion from the Texas Attorney General, Ken Paxton, on whether possessing or selling delta-8 THC products is legal.

DSHS updated its website on Friday, Oct. 15. According to the webpage, delta-8 THC products are still considered an illegal Schedule 1 controlled substance.

However, the lawsuit says hemp products, including those with THC, are no longer controlled substances because of an action by the Texas Legislature in 2019.

Under House Bill 1325, which passed in 2019, any consumable hemp products that have a concentration of less than 0.3% delta-9 THC are considered legal in Texas. According to DSHS’s Consumable Hemp Program guidance page, delta-8 in any concentration, in addition to delta-9 exceeding 0.3%, is illegal.

Hometown Hero was suing both DSHS and Texas DSHS Commissioner John Hellerstedt. The business was operating under the assumption that delta-8 was legal since it was a not a concentration of delta-9 THC with an excess of 0.3%.

The business previously told KVUE in an email that its request was "due to a lack of proper and required notice" by DSHS. 

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