A Form of THC Is Now Legal in Texas – Wait, What?
Due to loopholes in federal and state law, Texas consumers are now able to purchase cannabis products that contain a certain form of THC, which is the chemical in cannabis responsible for making a person feel high.
Like many across Texas, you may be thinking, “Wait – isn’t marijuana illegal in our state?”
The answer is both yes and no. While Delta-8-THC is technically legal, Delta-9-THC remains criminal. In case you missed it: the difference is in the numbers “8” and “9.” In this article, we’ll explain exactly what that means – and everything else you need to know about the law and THC in Texas.
*UPDATE: Because of Texas Legislation, the article below may not be fully accurate at the time of reading.
What is Delta-8-THC, and why is it legal?
To understand Delta-8-THC, we must start with Delta-9-THC, which is what most people think of, and refer to commonly as, simply, “THC.”
Delta-9-THC has long been known to lawmakers as the chemical that naturally occurs in cannabis flowers and causes psychoactive effects. Both Texas and federal law prohibit the personal use or sale of substantive amounts of Delta-9-THC. In fact, when Governor Abbott legalized CBD in 2019, he stipulated that no cannabis product could be sold with a Delta-9-THC concentration of 0.3 percent or more.
What he did not do, however, was specify the legal—or illegal—quantity of Delta-8-THC.
Because of this gap, cannabis entrepreneurs have recently found a way to bring a form of THC to Texas markets. They discovered that if they chemically extract all THC from cannabis plants, they can then spray back on Delta-8-THC, a compound that is nearly identical to Delta-9-THC in chemical structure (an “isomer”), with the location of one bond being the difference. Though this one difference makes Delta-8-THC less potent than Delta-9-THC, it can still get you high.
In the most recent 2021 legislative session, some Texas lawmakers fought to add a new law criminalizing all forms of THC, including Delta-8. However, this law failed to pass, so as of now, Delta-8-THC remains legal.
What does Delta-8-THC look like?
Like CBD or THC in other states, Delta-8-THC is legally sold throughout Texas in many forms, including:
If you purchase Delta-8-THC cannabis flowers at the store, they will look (and smell) just like “normal” marijuana buds. However, that plant will have been through a chemical extraction process (often called “remediation”) that removes all forms of THC from the plant and then adds the legal form of THC, Delta-8, back onto the flowers.
What if a cop thinks my Delta-8-THC is actually illegal marijuana?
This is where things get tricky. If you’re caught with a Delta-8-THC product, some police officers may assume you’re in possession of good old-fashioned marijuana, which contains Delta-9-THC, and therefore is illegal. In Austin, marijuana has essentially been decriminalized, but that is not true in most other parts of Texas.
In fact, it’s quite possible that a police officer could arrest you for possession of marijuana or possession of a controlled substance, even if you’re actually in possession of legal Delta-8-THC instead. If this happens to you, the best thing to do is hire a competent criminal defense attorney who can insist that the prosecution tests your cannabis product to show it contains minimal to no Delta-9-THC (and is therefore legal).
What are my rights if a police officer asks to search me for drugs, legal or otherwise?
It’s very important to remember that if a cop requests to search your home, backpack, vehicle, etc., you have the constitutional right to say no.
Let me say it again: you can (and should) refuse any police search. If you do grant permission for the police to search you, you cannot later argue that the search was unfair or illegal.
In some circumstances, police officers are legally allowed to search you without a search warrant or your permission, such as if you are in the process of being arrested for another crime. (For a full breakdown of search and seizure law in Texas, click here.) That said, if you consent to a search, you take away the need for the police officer to later prove that their search was legal and justified.
Delta-8-THC implications for probable cause
To make an arrest, conduct a search, or obtain a warrant, a police officer must be able to prove they had “probable cause.” This is the standard at which enough evidence exists to reasonably assume someone has committed a crime.
For example, in the past, if an officer claimed to smell marijuana when pulling you over for a speeding citation, they could legally search your car, even without a warrant, as the odor of marijuana constituted probable cause. (Though, again, you should still say no if the police ask if they can search you. Yes, they may search your car anyway, but because you said no, they’ll later have to prove they had a valid legal reason to search.)
However, the legalization of Delta-8-THC and other CBD products is complicating the typical police department tactics of conducting a probable-cause search upon the mere sight or smell of weed. It is new legal terrain, but qualified criminal defense attorneys can now make a compelling argument that the smell of marijuana does not automatically provide probable cause, as there is no way for the police officer to know if what they’re smelling is illegal. Since THC itself doesn’t contribute a unique odor to the cannabis flowers, the smell is the same regardless of whether the flower has:
Time will tell with regard to how this argument holds up in the courts.
What do I do if I’ve been arrested for marijuana possession or another drug charge?
Though getting arrested can be a terrifying experience, it doesn’t have to mean your future is over, especially when it comes to nonviolent crimes like drug possession. A qualified criminal defense lawyer can help ensure you receive the best possible outcome on your case. For instance, capable attorneys will know how to examine the details of your arrest to see if at any point your rights were infringed upon. If you find yourself in trouble—wrongfully or not—you don’t have to go through it alone. The most important thing you can do is reach out for help.
Delta-8-THC has blurred the lines of legality in the cannabis industry, which makes having a skilled attorney who knows the nuances of the ever-changing policies all the more important.