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In the midst of a nation shifting its view on cannabis, one question arises: will Texas legalize marijuana? Some ask, “When will Texas legalize marijuana.” Texas has a long-standing history of having harsher marijuana laws than the rest of the country. While general sentiments around marijuana continue to evolve, there’s more at play in Texas than public opinion. In this article, we unpack the current debates and the political environment in Texas and discuss whether legalization will take root in the Lone Star State.

Marijuana Legalization in Texas: The High Points

  • Texas is one of 26 remaining states where marijuana is still illegal. Any amount of usable marijuana remains a jailable offense in Texas.
  • The most notable exception to criminalized marijuana possession is for prescribed medical purposes. Yet medical use in one state does not translate to approved medical use in Texas.
  • In recent years, Texas has adopted and expanded its Compassionate Use Program, which allows low-level THC cannabis for medical use under a narrow set of circumstances.
  • Public opinion in Texas shows significant support for legalizing recreational marijuana, but a key actor in the Texas legislature will almost single-handedly prevent marijuana from being legalized.
  • Federal legislation mirrored by Texas makes the prosecution of marijuana (and required distinction from hemp) an expensive proposition for prosecutors.
  • Any amount of delta 9 THC at a concentration greater than .3% outside of the plant is a felony offense in Texas.

Exploring the Current Cannabis Climate in Texas

The distinction between hemp and marijuana is an important one under federal and Texas law. This increases the cost of testing and prosecution in Texas. Similarly, while the state’s Compassionate Use Program allows low-THC cannabis for medical purposes, this provision is much narrower than most other states, and a “medical use card” from another state has no legal significance in Texas.

legalization of marijuana
Support for marijuana is growing in Texas.

Hemp and CBD: Legal Status

To make sense of the cannabis confusion in Texas, one must grasp the subtleties of hemp and CBD. House Bill 1325 was a game-changer, legally distinguishing hemp-derived products such as CBD, Delta-8, and Delta-9 THC from hemp, as long as they contain less than 0.3% THC. But don’t light up just yet—while you can legally enjoy these compounds in Texas, the issue of smokable hemp is still up in the air.

Compassionate Use in Texas

The Texas Compassionate Use Program (CUP) has undergone significant expansions since its inception in 2015, broadening its scope to include a wider array of qualifying medical conditions in subsequent years, particularly in 2019 and 2021. Initially established through Senate Bill 339 during the 84th Legislative Session, the program was designed to allow certain qualified physicians to prescribe low-THC cannabis to patients diagnosed with intractable epilepsy.

In 2019, the program experienced its first major expansion. House Bill 3703 was passed during the 86th Texas Legislature, updating the Texas Compassionate Use Act to permit board-certified specialists to prescribe low-THC cannabis to patients diagnosed with a broader range of conditions beyond intractable epilepsy. The list of qualifying conditions was expanded to include epilepsy, multiple sclerosis, autism, amyotrophic lateral sclerosis (ALS), terminal cancer, spasticity, and neurodegenerative diseases. This expansion marked a significant step forward in making medical cannabis more accessible to Texans suffering from a variety of debilitating conditions.

The program saw further expansion in 2021 when additional legislative changes were enacted. House Bill 1535, signed into law, modestly increased the THC cap from 0.5% to 1% and added post-traumatic stress disorder (PTSD) and all forms of cancer to the list of qualifying conditions. This adjustment in the THC cap and the inclusion of more conditions underlined the state’s ongoing efforts to refine and improve the program, making it more inclusive and responsive to the needs of patients.

compassionate use in texas

The Texas Department of Public Safety (DPS) has administered the CUP throughout these expansions. The DPS maintains the Compassionate Use Registry of Texas (CURT), a secure online registry of qualified physicians authorized to prescribe low-THC cannabis. CURT serves as a critical component of the program, ensuring that prescriptions are regulated and that patients can legally access low-THC cannabis from licensed dispensary organizations. In 2022 alone, there were 43,056 patients enrolled in the Compassionate Use Program.

When will Marijuana be Legalized in Texas?

Short answer: not as long as Dan Patrick is the Lieutenant Governor. As Lieutenant Governor, he can ensure this never becomes law in Texas. There’s no doubt his position is truly the most powerful political office in Texas. He has prevented marijuana reform in Texas on multiple occasions, and there’s no reason to expect that would change. Meanwhile, the Texas Attorney General is suing cities that are not enforcing marijuana laws. Until 2022, the Republican Party Platform supported decriminalization of marijuana. Former Republican Governor Rick Perry supported decriminalization of marijuana, pushing for alternative “drug courts” that offer treatment and softer penalties for minor offenses, emphasizing a move towards decriminalization by introducing policies that could reduce jail time for marijuana users. He signed cite and release policies into law that allow law enforcement officers to issue citations for certain low-level offenses, such as possessing small amounts of marijuana, instead of making an arrest. These policies aim to reduce the jail population for non-violent offenders and save law enforcement resources. Yet even in 2024, many jurisdictions don’t use cite and release at all.

Health Perspectives on Cannabis Legalization

In Texas, the numbers speak for themselves: a striking 22% of middle and high school students have tried marijuana at least once, and 14% are current users. However, like alcohol and tobacco, the effect of marijuana on youth is very different than it is when used by adults. According to the CDC, regular use of marijuana by youth is associated with an increased risk of mental health issues, such as depression and social anxiety, and more severe conditions like psychosis and schizophrenia, especially when use begins at an early age.

The Federal Stance on Cannabis

The health debate forms only part of the narrative. The federal government’s position on cannabis adds another layer of complexity. Despite state-level legalization efforts, marijuana remains a Schedule I controlled substance at the federal level, deemed to have no accepted medical use and a high potential for abuse. It’s a contradictory position that’s slowly shifting, with President Biden issuing executive actions to pardon individuals charged with simple marijuana possession, building on previous pardons.

The proposed States Act of 2023 aims to legalize marijuana by:

  • Bridging the gap between federal, state, and local government policies
  • Potentially removing marijuana from the federal Schedule of Controlled Substances for those over 21
  • Giving states the reins on legalization.

Cross-State Line Considerations

Traveling from Texas to a state where marijuana is legal—or vice versa—can lead to complex and often severe legal challenges. The disparities between state laws and federal prohibition mean that a Texan could find themselves in hot water for possessing or transporting a substance that’s legal just a few miles away. It is illegal to bring marijuana into Texas from another state, regardless of whether it was purchased legally elsewhere or if it’s for medical use. This includes individuals who have a layover in a Texas airport while traveling between two jurisdictions where marijuana is legal.

Summary

While Texas has expanded medical marijuana under the Compassionate Use Program and public support for legalization has increased, Texas is not in a place where efforts for major decriminalization or legalization will pass.

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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