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Texas Supreme Court dismisses request from state health department for action in Delta-8 THC battle


The Texas Supreme Court has dismissed a request from the Texas Department of State Health Services to consider overruling a lower court’s decision in the battle over whether delta-8 THC is legal in the state.

“DSHS filed a motion with the Texas Supreme Court to have a ban on the products reinstated, but that request was denied on Friday,” reports Jacob Vaughn for the Dallas Observer. “An injunction on the ban is still in effect, meaning THC isomer products are still legal for sale, transport and possession in the state.”


In denying the DSHS petition, the court said the agency’s emergency motion for temporary relief was “dismissed as moot.”


“DSHS filed a motion with the Texas Supreme Court to have a ban on the products reinstated, but that request was denied on Friday.”

— Jacob Vaughn for the Dallas Observer



Delta-8 in Texas

Delta-8 THC has been a contentious issue in Texas since DSHS announced in mid October that it had added the substance to the state's list of controlled substances. Delta-8 has a chemical structure similar to the most well known form of THC, delta-9, and similar psychoactive effects. But it’s sourced from hemp and, unlike delta-9, not explicitly banned at the federal level.

Before the October announcement, Texas hemp shops were selling delta-8 gummies, vapes, tinctures and flowers under the assumption that the isomer was legal. That’s because the 2018 federal Farm Bill, alongside legislation in many states, said only substances with more than 0.3% delta-9 THC would be considered illegal. The U.S. Drug Enforcement Administration (DEA) has affirmed this interpretation, with the apparent implication that it considers delta-8 legal.


So after DSHS clarified that it had added all forms of THC to the state’s list of controlled substances, Austin-based hemp manufacturer and retailer Hometown Hero filed suit. The two entities have been trading legal blows since.


In a separate hemp-related case, DSHS has called on the state’s Supreme Court to uphold its ban on smokable hemp, which includes hemp flower and CBD vapes.


What’s Next?

The Dec. 10 dismissal by the Texas Supreme Court means the case will go back to the court of appeals. It could take between six months and a year to resolve the appellate portion of the case. Then the original suit will still need to be settled.

Hometown Hero owner Lukas Gilkey was encouraged by the win.


“We won again, this time at the Texas Supreme Court level,” Gilkey said in a Dec. 10 video. “This is a huge win for Texas businesses, Texas veterans and Texans looking for medicinal relief from products they can easily acquire.”


“This is a huge win for Texas businesses, Texas veterans and Texans looking for medicinal relief from products they can easily acquire.”

— Lukas Gilkey, owner and founder of Hometown Hero



Gilkey is a military veteran who founded Hometown Hero to help veterans find relief from post-traumatic stress disorder, seizures and chronic pain. He said delta-8 was accomplishing that. Gilkey critiqued the state’s medical cannabis program, calling it limited and expensive.


“This is truly serving the people of Texas and the people that are looking to cannabis to resolve their medical issues,” he said of delta-8 and the fight to keep it legal.


Gilkey also thanked other hemp companies financially backing the suit, saying their legal bill for the last month had been $90,000.

“Please support the companies that are donating to this fight,” he said. ‘These are people that are putting their money on the line to make this happen for all of us in Texas. […] We have a dozen lawyers on this, and this is why this is happening.”

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