It’s officially over.
The 88th Texas Legislative Session concluded yesterday May 29th, 2023.
Also referred to as Sine Die, which means adjournment "without a day" specified to reconvene.
But in Texas, we know the 89th Legislative Session will come around January 2025 as we are one of four states that meet bi-annually.
The other 46 states hold Legislative Sessions annually.
If you’re wondering why Texas meets bi-annually and the majority of the states meet annually, it’s because “Back in the 1800s, it was difficult and dangerous for the significant travel, so they decided to meet every two years. Because of this, Texas has longer legislative sessions than other states.”
Regardless of the why, it’s our reality here in Texas.
And so the next opportunity to see cannabis advance in legislation won’t come for another two years.
As much as I’d like to speculate what will happen, it’s a little too soon to tell since the dust hasn’t fully settled.
What I would like to do is put a pin here to remind you that there is legislation and then comes regulation.
Legislation is an umbrella of rules and laws that affect everyone equally.
Regulations are published by agencies to clarify their interpretation of the law and how a law will be implemented.
So there are a few things actually at play both in the State of Texas as well as Federally that we will be keeping our eyes on very closely.
A lawsuit between the State of Texas and Hometown Hero in regard to Delta 8 THC is set to have a hearing sometime in 2023.
The DEA came out on May 4th suggesting “New Rules Are Coming For Synthetic Cannabinoids, Including CBD And Delta 8 THC”.
With that said, let’s review the Texas Legislative process, and look into what happened during this Session as well as discuss some of the outcomes and implications.
The bill is the most common type of legislative document and is the only means by which a law may be enacted, amended, or repealed.
A bill is first introduced by a legislator in the legislator’s own chamber (Senate or House), which is considered the bill’s originating chamber.
Once the bill passes the originating chamber, the bill moves to the opposite chamber for approval before proceeding to the Governor.
Texas politics are a bit more intricate as our Lieutenant Governor has quite a bit of power.
Not only does the Lieutenant Governor hold the second-highest executive office in the government of Texas.
The occupant controls the work of the Texas Senate and controls the budgeting process as a leader of the Legislative Budget Board.
The Lieutenant Governor appoints all the committee chairs of the committees in the Senate, determines where the bills are going to be sent to what committees and the timing.
That might not appear so powerful at first glance, but remember every bill has to come through a Senate committee before it gets a final vote.
The steps in a bill’s progress are basically the same in each chamber, with many opportunities for the amendment or defeat of the bill.
There were over 30 something bills related to cannabis that were introduced.
The reality though is that not all bills will be reported out of committee and are considered to have “died” in committee.
So of the bills introduced, I’m only going to focus on the ones that were the most influential this session and/or made it out of committee.
Some pertained to medical marijuana also known as TCUP (Texas Compassionate Use Program.)
HB 1805 authored by Representative Stephanie Klick sought to expand the Compassionate Use Program by adding chronic pain as a qualifying condition and to increase the THC content from 1% by weight to 5%. It would have also allowed the Department of State Health to designate qualifying conditions rather than having our legislatures decide them every two years.
I should note that it did pass the House with 127 yeas, 19 nays, and 2 present not voting, it just never made it through the Senate.
But the fact that this bill in particular made no progress is quite unsettling.
I believe that we need a proper medical marijuana program in place before the State even considers adult use/recreation.
So this lack of advancement pushes Texas back another two years from working towards full cannabis adoption.
Another big question mark is what is the State of Texas going to do with the recent round of applications they opened up to bring on more licensees for TCUP.
I heard there were over 200 applications, at a minimum of $20,000 a piece non-refundable.
For those of us bad at math, that’s $4 million dollars?!
I also wrote a bit more about the medical marijuana program in Texas in one of my latest posts called Legacy or License.
The point is if the State was going to broaden the program to a higher THC % of qualifying conditions, taking on more licensees made sense.
But with the program making no advancements this session and the pool of patients trickling growth, I am eager to see how many licenses they open up and to whom they end up issuing them to (if any).
I really should do a full post on the inner working of the TCUP program because when you dissect it and compare it to other medical marijuana programs, it’s not even fair to really call it that due to how much red tape surrounds it.
Regardless, it is the official program of the State and it’s what we’ve got to work with.
And TCUP advancing only helps the overall cannabis adoption and narrative.
This leads me to decriminalization, another hot topic in cannabis.
Section 481.120 of the Texas Health and Safety Code
Makes intentionally or knowingly delivering marijuana a criminal offense of varying severity based on the amount of marijuana delivered.
Section 481.121 of the Texas Health and Safety Code
Makes the possession of marijuana a criminal offense of varying severity depending on the amount of marijuana possessed.
Section 481.122 of the Texas Health and Safety Code
Makes the knowing delivery of a controlled substance, including marijuana, to a person younger than 18 years of age a felony in the second degree.
Chapter 12 of the Texas Penal Code outlines the potential penalties for criminal offenses of varying degrees.
TLDR; Depending on how much you have, and where you find yourself in the State, possession of anything >.3% Delta 9 THC.
Decriminalization means that local law enforcement is choosing not to enforce certain laws.
Major cities like Austin, Dallas, and Houston are decriminalized, but as a State, it can come with some pretty hefty penalties if you’re caught violating the Texas law.
Specifically, SB 281 authored by Representative Joe Moody made progress in passing through the House.
His bill would remove criminal penalties for the possession of up to one ounce of marijuana or cannabis concentrate and reclassify them as a Class C misdemeanor, a citable offense not subject to arrest and carrying a fine of up to $500.
For historical reference, the Texas House of Representatives passed similar cannabis decriminalization bills during the last two legislative sessions, but both times the legislation failed to gain approval from the state Senate.
And then there was SB 264, Authored by Senator Charles Perry.
This was the bill that took up the most of my attention this session, as it had the most impact directly on my business RESTART.
So to paint the picture, the 2018 Federal Farm Bill and 2019 Texas House Bill 1325 legalized hemp on the State and Federal levels.
They both defined legal hemp as cannabis with <0.3% Delta 9 THC.
(Also fair to highlight that the legalization of hemp was really intent on promoting hemp as an agriculture crop and the truth is that consumables have surpassed that market and become front and center.)
As such, it’s been an ongoing argument over the interpretation of that law, specifically introducing cannabinoids like Delta 8 THC and hemp-derived Delta 9 THC to market.
And look I get it, the State of Texas (and even the Federal government) still consider cannabis with high THC a controlled substance, and here we are figuring out how to get legal psychoactive cannabis products direct to consumers out in the market.
It’s been interesting tracking the legalities because some states have taken a total outlaw approach like Colorado which illegalized Delta 8 in 2022, but then States like North Carolina allow for the purchase, sale, possession, and use of Delta-8-THC as long as it is derived from hemp that contains <0.3%.
Ultimately until there are clear Federal guidelines, like that DEA update I mentioned earlier which could address this in more clarity, the decision on how to handle is left to the states.
Which brings us back to Texas.
Perry’s bill used language that lumped all the THC isomers together and capped the total amount allowed in hemp at <0.3%.
The specific language from the bill said “a person may not manufacture, sell, or purchase a consumable hemp product in this state: that contains synthetically derived tetrahydrocannabinols, as defined by department rule, including synthetically derived acids, isomers, or salts of tetrahydrocannabinol;”
And if you’ve been tracking me and my content, then you know that I’m very public about the difference between using the word “synthetic” and “synthesis”, which I believe is the correct word we should be using.
I am also anti-synthetics.
Synthetic cannabinoids are a class of chemicals that are designed to mimic the effects of THC, like K2 or Spice.
But Delta 8 THC is a naturally occurring cannabinoid found in cannabis.
However, it occurs in very small quantities in the plant.
This is why it is produced through a chemical reaction called isomerization.
In this process, CBD (cannabidiol), which is abundant in hemp, is chemically converted into Delta 8 THC.
And I’ve said it multiple times, chemically deriving compounds is a common practice in pharmaceuticals so why do we raise concern when the same science is applied to cannabis?
I want better regulation, not elimination.
And that’s the tone coming from the Texas Hemp Coalition, the nonprofit advocacy group that I’ve been a part of for the last 3 years and the organization I became President of earlier this year.
As a cannabis business owner, licensed operator, Texan, and advocate, the reality of this bill passing would have devastated our local industry here not just for the retail owners and brands, but for the consumers as well.
It also would have taken the industry back instead of forward.
This is why I’m proud to represent an organization made up of operators from cultivation and manufacturing, to lab testing and retail.
We collectively represent the leaders in Texas hemp and from the moment this legislation was introduced worked in tandem with State officials to protect this industry at all costs.
Out of all the bills, I was grateful to see this one die in the Senate which reinforced our efforts and protected our industry for the time being.
On the flip side of that, there was another piece of hemp legislation that we were hoping to see pass HB 2818, authored by Representative Brisco Cain, Representative Jon Rosenthal, Representative Tracy King, Representative Diego Bernal, Representative Janie Lopez, and Representative David Spiller.
This bill would have expanded higher education and non-profit research permits, giving the agency the ability to promulgate rules based on federal updates, and addressed transplant issues in regard to immature plants.
So in summation, all these bills could have helped or hurt the cannabis industry at large here in Texas and instead everything remained as it was from the 87th Legislative Session that took place in 2021.
There was another bill that was introduced that clearly did not pass, but it’s worth mentioning and reminding you.
HB 4918 was authored by Representative Brisco Cain, Representative Jon Rosenthal, Representative Diego Bernal, Representative Mihaela Plesa, and Representative Penny Morales Shaw and would have repealed the ban on manufacturing smokable hemp, allowing farmers to manufacture smokable hemp products in Texas.
For reference, The Texas Supreme Court unanimously reinstated the statutory ban on the processing and manufacturing of smokable hemp products in July 2022.
This just goes to show how much regulation plays a role in this double-headed monster that is moving cannabis policy forward in the State of Texas.
And so we’re clearly not out of the smoke yet.
Just becuase we won in some cases and lost in others this session, we still have quite a few opportunities to see the industry impacted both locally and federally.
The Farm Bill, which legalized hemp on the federal level in 2018 is expiring at the end of 2023 and at this time there doesn’t look to be much progress made on when the amendement to that will be coming out.
It’s also a long piece of legislation that encompasses far more than just hemp.
So with all of that said, how we move forward and what the industry is going to look like tomorrow is up in the air.
People are asking me when some of these things are going to get ironed out and it’s honestly out of my purview.
We have a few thing to keep track of and a big takeawy is that the State of Texas is not ready to advance cannabis legislation.
I think the fact that TCUP made no progress and the State also opened up additional licenses is something to wait and see how it gets handled.
I think we have some court cases and Federal updates that will help determine for better or for worse the boundaries and parameters around cannabiniods like Delta 8 THC.
I think we need to stay aware, and be prepared.
Governor Greg Abbott was just re-elected to another 4 year term which concludes in 2026.
And Lieutenant Governor Dan Patrick was also re-elected to another 4 year term which concludes in 2026.
I’m left wondering with all the power Dan Patrick has, is cannabis progressing contingent on his authority?
This was not how the 88th Legislative Session was playing out in my head when we kicked things off in January, but I do think the industry is stepping up and using their voices loud and clear.
I’ve gotten much more involved and while it appears that things are constantly in flux, it’s been eye opening participating in the grand scheme of politics and while difficult to communicate and at minimum comprehend, it’s been a humbling and rewarding experience navigating how to go about making change strategically and in partnership with the process.
As much as I wanted to see progress in legislation this year, I’m seeing waves of progress with consumers day to day, and that I know, even if it seems insignificant, is helping influence the politicians.
Cannabis is bipartisan, or bipotisan as I like to refer to it.
And we’re seeing support from across the aisles.
It’s just, politics is politics and the quicker you embrace that, the better suited you will be to address the situation at hand.
Why do you think Texas is holding out on adult use/recreation?
Will Texas cannabis have a better fighting chance during the 89th Legislative Session?
Is Texas waiting for Federal guidance on some of these issues?
And will Texas have to wait til Dan Patrick is out of office to see cannabis progress?