What is Delta-8 THC and is it Legal in Texas? [2022]

Over the past couple of years, a once little-known cannabinoid called delta-8 THC has surged in popularity due to its similarities to marijuana — especially in states where marijuana (containing delta-9 THC over .3%) is illegal, like Texas. Walk into any smoke shop or CBD retailer in Texas and chances are you will find this product lining the shelves in forms such as gummies, vape cartridges, or tinctures.

While many Texans are praising what some call "marijuana lite" or "diet weed," the legality of delta-8 cannabinoids is in a gray area, and the production of it is largely unregulated. In this article, the attorneys at Varghese Summersett walk you through what exactly delta-8 is, the legality of delta-8 consumption, and the future of delta-8 in Texas.

Delta-8 is a cannabinoid derived from hemp that gives similar effects to marijuana such as euphoria and relaxation. While delta-8 is not exactly the same as marijuana, the two cannabinoids are very similar in chemical structure. Marijuana is a THC compound named Delta-9 because of the double bond on the ninth carbon atom, as opposed to the eighth carbon atom in delta-8. The placement of this bond still gives users a "high," however, it is much less potent than regular delta-9 weed. It is important to note that delta-8 THC is not a substitute for CBD, a non-intoxicating substance also derived from the marijuana plant, as delta-8 still has intoxicating effects.

Delta-8 cannabinoids have become popular because it is viewed as a legal way to attain the high that marijuana gives. While the legality of delta-8 will be discussed later, a legal oversight has allowed delta-8 to be produced, sold, and used "legally" in dozens of states, including Texas. With the strict laws prohibiting the usage of cannabis in many states like Texas, delta-8 is viewed as a legal alternative to weed. Many stores in Texas are selling delta-8 THC without any legal or governmental regulation, allowing consumers to get high from edible gummies, vapor pens, and oil tinctures.

The short answer to this question is yes, for now, although finish this article to find out how you can be arrested for and prosecuted for delta-8 THC in Texas. While there are no laws expressly prohibiting the usage of delta-8 cannabinoids, there are also no laws outright legalizing its usage. This leaves delta-8 in a legal grey area which is currently being duked out in court. In October 2021, The Texas Department of Health and Human Services updated its website to clarify for the public that delta-8 was a Schedule 1 substance and, therefore, illegal. CBD and hemp retailers challenged it in court, saying this contradicted what they thought was now legal under federal and state hemp laws. Lawsuits were filed attempting to block DSHS from criminalizing delta-8, and retailers got a temporary injunction on the state's ban, which so far has been upheld by an appeals court. DSHS asked the Texas Supreme Court to step in and reinstate a ban on the products, but the high court refused the request to hear the case. A final hearing was set for January 2022, but it was cancelled and never took place. So for now, delta-8 is legal in Texas.

Stores across Texas began selling delta-8 THC after the passage of the 2018 Federal Farm Bill, as well as House Bill 1325 in 2019, which legalized the growing of hemp that contains less than .3 percent THC. Delta 8 falls into this category. The Department of Health and Human Services (DSHS), however, later announced, or clarified, that delta-8 was classified as a scheduled 1 controlled substance, a category reserved for drugs that have no accepted medical use, such as heroin. That's why it's in legal limbo at the moment.

That remains to be seen. As mentioned, it's currently being debated in court and it was also a hot topic in the last legislative session. There were two bills in the Texas House – HB 2593 and HB 3948, which would have criminalized delta-8. Both bills died. So, while Delta-8 may be in a legal purgatory now, it seems that some lawmakers will continue to try and push to treat Delta-8 as normal cannabis. To be sure, delta 8 consumers, retailers, and manufactures will push back.

While not explicitly illegal, delta-8 cannabis is indistinguishable from regular delta-9 cannabis unless examined in a laboratory, so you could potentially still be arrested for delta-8 cannabis if officers suspect it is illegal delta-9 marijuana. However, there appears to be no push to prosecute anyone for selling it. In fact, according to the Texas Tribune, the Texas Department of Public Safety has yet to make an arrest.

Under certain circumstances, you can be arrested and prosecuted for Delta-8 THC consumption. First, if you are on bond, the judge will likely have issued an order that says you cannot use or possess any cannabinoids. "Any" means exactly that. Courts routinely impose bond conditions that are more stringent than existing laws.

Second, if you are on probation, the court will likely impose a condition that says you cannot possess or consume any cannabinoids. In this case, too, you can be arrested, revoked, and sentenced for what would otherwise be a legal substance. The same can happen if you have a parole condition that prohibits you from using cannabinoids.

Remember in Texas you can be charged with driving while intoxicated – on any substance – so if the State's expert claims you were not normal mentally or physically due to the introduction of Delta-8 THC, the State could charge you with DWI.

Yes, you can fail a drug test if you have only used delta-8 cannabis, as drug tests are unable to distinguish the differences between delta-8 and 9 cannabinoids. As explained above, if you are on bond or probation (the two times you are most likely to be providing a drug test) it likely won't matter which cannabinoid was in your system.