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The Legality of Delta 8 THC, Delta 9 THC, Delta 10 THC, and THCA in Texas

Contravening Winds of Change in Texas?

It seems like you can’t go very far in Texas without seeing a store that sells THC products, whether it is your local headshop or neighborhood convenience store. In fact, THC dispensing vending machines are popping up all over Texas. It is easy to think, “Well, if it were illegal, they wouldn’t be able to sell these products, right?”

S Congress Vending machine
byu/tipsytarotalks in Austin

While you can buy THC products at every turn in Austin, the conversations happening inside the Capitol paint a very different picture of where Texas is heading. Lieutenant Governor Dan Patrick has been vocal and direct about his stance on THC and marijuana legislation. This year, he previewed priorities for the 2025 legislative session, which included explicitly banning Delta 8 and Delta 9 THC. (To be clear Delta 9 THC with a concentration greater than .3% is already illegal – and a felony – in Texas.)

In this article, we will discuss the legality of Delta 8 THC, Delta 9 THC, Delta 10 THC, as well as THCA in Texas. We will also discuss the criminal risks associated with each of these products, particularly those sold as legal products in Texas.

When is THC illegal in Texas?

The simple answer is THC is illegal to possess in Texas if it is Delta 9 THC and the concentration of THC is greater than .3% by dry weight.

Specifically Health and Safety Code Section 481.002(5) provides controlled substances do not include “tetrahydrocannabinols in hemp.” As we will discuss later in this article, this is a critical provision that affects how the suspected substances are evaluated and prosecuted.

Why are we discussing so many types of THC?

THC, or tetrahydrocannabinol, is a chemical compound found in the cannabis plant that is primarily responsible for the psychoactive effects associated with marijuana use. It interacts with the body’s endocannabinoid system, particularly the CB1 receptors in the brain, to produce effects such as euphoria, relaxation, altered perceptions, and increased appetite.

Quick Reminders from Chemistry Class 

Isomers: An isomer refers to a compound that shares the same chemical formula as another compound but has a different arrangement of atoms in the molecule, leading to different properties.

Precursor: A precursor is a compound that participates in a chemical reaction to produce another compound.

What is Delta 8, Delta 9, and Delta 10 THC and THCA?

Delta 8 THC, Delta 9 THC, and Delta 10 THC are isomers, meaning they have the same molecular formula but differ in the arrangement of atoms and the position of their double bonds within the molecule.

What is the difference between Delta 8 THC, Delta 9 THC, Delta 10 THC, and THCA?

Delta 9 THC

This is the most abundant form of THC found in cannabis plants and is well-known for its strong psychoactive effects. It is the standard form of THC that is most commonly associated with the use of cannabis.

Delta 8 THC

Delta 8 is chemically similar to delta 9 THC, but with the double bond on the eighth carbon in the chain, as opposed to the ninth. It is found in much lower concentrations in cannabis plants. Delta 8 THC is known for producing a milder high compared to Delta 9, with less anxiety and paranoia, which some users prefer. It also has potential medicinal benefits but is less potent.

Delta 10 THC

Like Delta 8, Delta 10 THC is found in only trace amounts in natural cannabis. The double bond in Delta 10 is located on the tenth carbon atom. It is generally considered to be less psychoactive than Delta 9 and Delta 8. Users report that Delta 10 offers a more energizing and less intense experience.

delta 8 thc delta 9 thc delta 10 thc

THCA

Tetrahydrocannabinolic acid (THCA) is a non-psychotropic acidic cannabinoid naturally occurring in the cannabis plant that serves as a precursor to tetrahydrocannabinol (THC). It is also the most abundant non-psychoactive cannabinoid found in cannabis.

THCA Chemical Compound

How is THC Prosecuted in Texas?

As the law stands right now in Texas, in order for THC to be prosecuted, it has to be delta-9 THC, and it has to be in a concentration of 0.3% or more by dry weight. If the prosecution believes that you possessed THC outside the marijuana plant and the concentration of THC is greater than 0.3% by dry weight, you will be charged with a felony.

our bench is deep

What are the risks of possessing Delta 8 THC and Delta 10 THC?

Delta 8 THC is not illegal in Texas. Neither is Delta 10 THC.

To understand why it is not, you have first to understand how THC is criminalized in Texas.

Texas categorizes cases into penalty groups. Health and Safety Code Section 481.103 defines Penalty Group 2. It includes “any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers unless specifically excepted. It goes on to include “tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant… and their isomers with similar chemical structure and pharmacological activity.”
You would think this means if Delta 8 and Delta 10 are either synthetic equivalents or isomers with similar chemical structure and pharmacological activity they are illegal.

That would be true except for the exemption in Section 481.002, which excludes hemp and THC in hemp.

Hemp is defined in Agriculture Code Section 121.001 and includes “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers [of the Cannabis sativa L. plant], whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

As a result, any substance that is derived from the Cannabis sativa L. plant (genetically, both marijuana and hemp are the same plant) with a delta 9 THC concentration of 0.3 percent or less is legal, as are all cannabinoids (so THC 8 and 10) that have an equally low THC concentration. Does that mean there’s no risk in purchasing or possessing these products? No. Read on to understand why possessing something that is legal in Texas can get you arrested, charged, and become a problem you will spend thousands of dollars to fix.

  • In the field, the police cannot determine concentrations.

In Texas, police use the NARK II Duquenois-Levine Reagent to test for THC in the field. This reagent is part of a presumptive test designed to identify THC in marijuana and other cannabis-related substances. This test is qualitative, not quantitative, meaning it can indicate the presumptive presence of THC but does not specify the concentration. Further, it cannot differentiate between THC isomers such as Delta-9 THC, Delta-8 THC, Delta-10 THC, or THCA.

What this means at a practical level is officers who suspect a substance might be illegal will use a reagent that cannot distinguish between types of THC (legal or illegal) and gives them no information about concentration to place you under arrest. This means you’ll have to bond out, hire a lawyer, fight the case in court, and very likely pay for your own lab test before the case is resolved.

  • THC concentration may vary based on the testing method.

Gas Chromatography

There are several ways to test for THC concentration in a lab. Most criminal labs in Texas use Gas Chromatography. This is sufficiently accurate (for government work?), and perhaps more importantly, it would be virtually impossible to find a criminal lab in Texas without a gas chromatograph. Gas chromatography (GC) is a method used to separate and analyze compounds that can be vaporized, commonly applied in the analysis of THC (tetrahydrocannabinol), the psychoactive component in cannabis.

High-performance liquid chromatography

High-performance liquid chromatography (HPLC) has been reported as the best method for testing cannabinoids.

A key difference between HPLC and GC is that the suspected substance does not have to be heated, unlike GC, which depends on testing a vaporized substance.

Thin-Layer Chromatography

Finally, the cheapest way to test for THC is through Thin-Layer Chromatography (TLC). Producers, sellers, and vendors often use TLC because of the low testing cost. TLC has far lower sensitivity. TLC is more qualitative than quantitative, which means it is better at indicating the presence of a substance rather than accurately measuring its concentration. This can lead to underreporting when precise quantification is necessary, as TLC might not provide the exact levels of THC present.

Method Description Common Use by Law Enforcement Cost
Gas Chromatography (GC) Utilizes heat to vaporize and separate compounds, allowing for the detection of various substances, including THC. Often used with a mass spectrometer (GC-MS) for enhanced detection. Yes. GC is the most commonly used method. Medium to High
High-Performance Liquid Chromatography (HPLC) Operates at room temperature and can differentiate between non-psychoactive and psychoactive components of cannabis, such as THCA and THC. No. Most labs do not have HPLC. High
Thin-Layer Chromatography (TLC) A simpler method where samples are applied on a plate and separated. Not as precise, mainly used for screening rather than detailed analysis. Not used in criminal labs in Texas in THC testing. Low

Back to THC 8 and THC 10: 

If you purchase something with Delta 8 or Delta 10 THC, you still face the problem that an officer in the field will not be able to distinguish between the isomers of Delta 9 THC and Delta 9 THC itself. This means you will likely be arrested and have to defend the case in court. You are also running the risk that the lab report you relied on in purchasing the product was not accurate or reliable for the reasons outlined above.

being proactive in criminal defense

What are the risks of possessing Delta 9 THC sold in low concentration?

Let’s say you buy a product that claims to have Delta 9 THC in a legal concentration that is equal to or less than 0.3 % by dry weight. Let’s say the seller even provides a lab test that shows you the concentration. You might be tempted to think your purchase and possession are perfectly legal, except there’s no way for an officer to know if the THC concentration is greater than 0.3% by dry weight or not. So once the reagent tests showing a presumptive positive for THC, you are getting arrested.

What are the risks of possessing THCA?

THCA derseves its own section and explantion. THCA (tetrahydrocannabinolic acid) is not an isomer of Delta 9 THC; it is a cannabinoid precursor and an acidic form of THC. THCA itself is non-psychoactive, meaning it does not produce the “high” associated with THC. It is found in higher concentrations in fresh, undried cannabis plants, particularly in the raw cannabis buds.

THCA (C22H30O4): Tetrahydrocannabinolic acid is found in raw and live cannabis plants. It is the non-psychoactive acidic form of THC. THCA does not produce psychoactive effects unless it is decarboxylated, usually through heating.
Delta-9 THC (C21H30O2): When THCA is exposed to heat, it undergoes a chemical reaction known as decarboxylation, where it loses a carboxyl group (COOH) as carbon dioxide and water. This transformation changes THCA into Delta-9 THC, the well-known psychoactive compound found in cannabis.

THCA has become a popular alternative for individuals in Texas who want the effects of THC without having the possess marijuana and the risks of arrest and prosecution that come with that in Texas.

Is THCA legal in Texas?

THCA is legal in Texas.

Does that mean you can possess it or convert it to THC by smoking or vaporizing it without consequence? No.

If you were stopped while you were smoking or vaporizing THCA, you would no longer have THCA, you would be in possession of THC.

The other significant risk is the testing. Unlike the testing issues with THC-8 and THC-10, here a significant risk is that the testing itself can create the substance law enforcement is looking for and prosecutions are based.

Put simply, legal THCA becomes illegal Delta 9 THC when it is heated. In Texas, the most common way criminal labs test cannabinoids is gas chromatography. Heating and vaporizing a sample is a necessary step in gas chromatography. As a result, not only will you be arrested based on a non-specific reagent test, but you will also be prosecuted based on a lab report showing the presence of an an illegal concentration of THC. While there are a number of ways to get a case dismissed, you may have to have the sample tested by an outside lab that uses HPLC to prove what you possessed was THCA and not THC.

Our lawyers are your bridge over troubled waters.

Legal Challenge For Prosecutors

It is important to note that possession charges in Texas require proof of knowledge of the substance’s illegal status. Therefore, having a lab report indicating that a product is within the legal THC limit could be beneficial. Similarly, having a report that documents you were in possession of THCA as opposed to any THC isomer could be helpful.

In summarizing the complexities and legal nuances surrounding the use of Delta 8 THC, Delta 9 THC, Delta 10 THC, and THCA in Texas, it becomes evident that the state’s stance on these substances is both intricate and evolving. Despite the apparent ubiquity of THC products in Texas, particularly in areas like Austin, the legal landscape is fraught with contradictions. As Texas moves towards the 2025 legislative session and THC products become more prevalent, it becomes imperative for every Texan to stay abreast of the changes in legislation surrounding these substances.

Additional Reading

The Legality of CBD Oil in Texas

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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