The Texas Court of Appeals 3rd District recently ruled against the state’s Department of State Health Services (DSHS), stating that the agency did not follow proper procedure and lacked the authority to ban delta-8 THC by placing it on the controlled substances list. This decision concerns the Department declaring that delta-8 THC is a Schedule I controlled substance without adhering to required procedures.
Temporary Injunction Issued
As a result of these actions, the trial court initially granted a temporary injunction against the amendments made by the Commissioner of DSHS. These amendments were an attempt to guarantee that any type of THC, aside from Delta-9 THC at concentrations less than 0.3%, will continue to be controlled substances in the state. The court determined that the injuries resulted from the Commissioner’s amendments, and urging their enforcement could potentially address these injuries.
Department and Commissioner Claims
The story of this verdict also includes two claims made by the Department and Commissioner: an ultra vires claim and an Administrative Procedure Act (APA) claim. They argued that they did nothing wrong and that the complaints against them sought impermissible retrospective relief.
DSHS’s Sovereign Immunity Argument Dismissed
In an interesting turn of events, DSHS claimed sovereign immunity from claims against them, which the court dismissed as having no standing in this case. The agency argued during the trial that it had the authority to change the state-controlled substances list without specific rules; however, the verdict states that rule-making was meant for implementing such changes.
Supreme Court Involvement Uncertain
The Attorney General’s office initially requested the removal of the injunction from the state supreme court but skipped the appeals court in doing so. Given the recent verdict of the appellate court, it seems unlikely that the state supreme court would reverse a decision that could potentially establish a precedent allowing a 4th branch agency to exceed its power governed by the state legislature.
Implications for Delta-8 THC Industry
This verdict has significant implications for the delta-8 THC industry in Texas. Upholding the trial court’s decision and a temporary injunction may grant further legitimacy to the sale and distribution of delta-8 THC products within the state. Businesses and consumers can expect continued debate and regulatory scrutiny surrounding this compound, as well as heightened vigilance on state agencies’ adherence to proper procedures and rule-making processes.
Ultimately, the courts and the state legislature will determine the fate of delta-8 THC regulation in Texas. The appeals court’s ruling represents an important step towards maintaining checks and balances between government entities while considering the rights and interests of businesses and consumers operating within the delta-8 THC market.
The precedent established by this decision may have far-reaching effects beyond Texas, potentially encouraging other state governments to carefully review their regulatory processes and rules related to controlled substances, including delta-8 THC.