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What is the Delta-8 Law in Texas?

Flanary Law Firm, PLLC

You’ve likely seen delta-8 THC products in Texas on the shelves at your local gas station, or even at a juice bar or a brewery. Since weed isn’t legal in Texas, seeing these products may cause you to wonder what is the delta-8 law in Texas. Delta-8 THC products are temporarily legal to be bought and sold in Texas, although we are unsure how long this will last.

How is delta-8 THC currently on the market in Texas while so many people sit in jail for possession, distribution, and cultivation of delta-9 THC? The law and the science that explain the state of the marijuana laws in Texas are complicated, if not convoluted, and there is still danger out there for Texans looking to purchase and use legal delta-8 THC. Don Flanary of Flanary Law Firm, a dedicated Texas criminal defense attorney and marijuana law specialist, is here to explain how.

Is Delta-8 Against the Law in Texas?

You might have heard that delta-8 was, or would soon become, illegal in Texas. Over the years there has been no shortage of confusion (or misinformation) over the substance’s origin, legality, and effects. It all started in 2018 when the Federal Farm Bill was passed, which federally legalized all hemp products containing 0.3% or less THC — that is, delta-9 THC. This was directly followed by the state of Texas passing Texas House Bill 1325, which legalized the sale of low-THC hemp products in Texas.

Two years later, the Texas Department of State Health (DSHS) covertly placed delta-8 THC back on the controlled substances list, on the basis that the Federal Farm Bill’s definition of hemp products containing low amounts of delta-9 THC did not include delta-8 THC.

The problem was that they did this without informing anyone and that their clandestine operation impacted scores of citizens, business owners, and investors whose livelihoods depend on the legality of hemp products. For this reason, the court granted a temporary injunction, stopping the ban imposed by the DSHS and allowing the legal purchase and sale of delta-8 in Texas.

What’s the Difference Between Delta-8 and Regular Weed?

Delta-9 THC is essentially the main ingredient in marijuana, it is the main psychoactive component that influences how you feel when you get high. When people casually refer to THC, they are talking about delta-9. You can think of it as the “Original Recipe”.

Delta-8 THC is a slightly less psychoactive cannabinoid found in hemp and marijuana plants that is purported to produce a lighter high and exist in smaller quantities. Delta-8 products are generally synthesized from cannabidiol (better known as CBD) to achieve a higher concentration, but are still hemp-derived — and more importantly, legal.

Is Delta-9 Legal in Texas?

Hemp-compliant products with delta-9 THC concentrations of 0.3% or less are legal to be bought and sold, but this doesn’t mean that purchasing these legal delta-9 edibles won’t land you in jail. Why? Police can’t tell the difference, but more on that below.

Does Delta-8 Show up on a Drug Test?

Delta-8 and delta-9 THC will both show up as marijuana on any conventional drug test.  Because drug tests aren’t actually testing for delta-8 or delta-9 THC specifically, and are instead testing for THC metabolites, it’s difficult to tell the difference between the two on a drug test.

This means drug tests administered by employers, government offices, and law enforcement agencies cannot tell whether you were using the legal stuff or not. This is part of the pattern of guessing that goes on in most regulatory or executive bodies trying to deal with in the new world of cannabis products.

What Happens if I Get Pulled over With Delta-8 in Texas?

What happens if you get pulled over with delta-8 in Texas depends heavily on what kind of delta-8 products you have, whether they are edibles, oils, buds, or seltzers.

If you are pulled over with a contained and sealed delta-8 product and are not intoxicated at the time, you have a good chance of not being improperly arrested — but if you have unmarked CBD or delta-8 buds or an unmarked vape pen, the police will likely treat them like an illegal substance.

Can you get a felony for delta-8 in Texas? This may seem like a silly question, but it is an important one to ask. Police can’t tell what is what, and THC concentrates are still a controlled substance that can land you with felony weed charges in Texas.

Continue reading: What is a federal marijuana charge?

The Problem With CBD, Delta-8, and Delta-9 THC in Texas

Why does it all matter? Because the police can’t, with any real confidence, tell the difference between the two, and will often decide to arrest first and ask questions later, being pulled over with delta-8 in Texas can be a scary prospect.

Similarly, any drug paraphernalia in Texas can get you sent to jail — even if your paraphernalia has only been used with perfectly legal delta-8 THC. Is that federally illegal hashish oil, a legal delta-8 pen that you purchased at a gas station, or something else entirely? The point is that the police arresting you cannot tell, and will likely treat you as if you’ve committed felony possession rather than airing on the side of innocence.

What about medical marijuana? Even if you are carrying marijuana for a medical purpose, having a medical marijuana card isn’t a valid defense for possession in Texas. Texas medical marijuana only exists in low THC forms and for very specific use cases (treating epilepsy, primarily).

If this all seems bleak, it’s because it is, and the scientific and legal gray areas are more likely to lead to a problem for you than they are for the police. This is why it is vitally important to have an attorney that is familiar with the marijuana laws in Texas and the ways in which the police will try to leave you holding the bag.

The Delta-8 Law in Texas Might Not Protect You, Hire a Lawyer Who Can.

Although delta-8 THC is currently legal to buy and sell, the delta-8 law in Texas might not save you if you wind up in a pinch. Whether you were arrested for simple possession or are facing charges for growing weed in Texas, you need an attorney that has experience taking marijuana cases to trial and winning them. Scientific evidence and departmental malfeasance often go undiscovered, and can only come to light in a court of law.

If you wind up facing unfair charges for possession of any substance, call Flanary Law Firm at(210) 899-7566 or contact us online for a free consultation.

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