Could legal cannabis come to Texas?

The state of Texas has historically taken a more conservative approach to the legalization of marijuana products. Many are asking whether the state will change its policy in the coming months.

For starters, many Republican voters have demonstrated a changed attitude towards medical marijuana. In a 2022 survey from Baselice & Associates, Inc., 64% of Republican primary voters indicated they were in favor of legalizing medical marijuana for use by prescription by a physician. The same survey found that approximately 72% of Republican voters would prefer a medical marijuana prescription to an opioid prescription for treating chronic pain.

This second figure is likely due to the recent spike in opioid-related deaths. A 2020 report from the Center for Disease Control estimates that 75% of the roughly 92,000 drug overdose deaths in the US involved some kind of opioid.

Texas has had a long and storied relationship with medical marijuana; the state’s Compassionate Use Program has made medical marijuana products available to patients in some cases, but chronic pain is not listed among the program’s eligible conditions. To be eligible for a medical marijuana prescription, Texas patients must be diagnosed with a seizure disorder, PTSD, cancer, multiple sclerosis, autism, amyotrophic lateral sclerosis, spasticity, or an incurable neurodegenerative disorder. Only three cannabis providers have been licensed to produce medical marijuana in the state of Texas as of now.

In fact, the Texas legislature is facing many questions regarding its approach to legalization in the coming years. In 2019, the state legalized hemp products, but not marijuana products. Increased access to legal cannabis is supported among many Texans, so many were confused by this distinction. Across the state, enforcement and prosecution are inconsistent, making the matter an important issue for Texas policymakers in the upcoming midterm elections.

Because they are both derived from the cannabis plant, it can be difficult to distinguish between marijuana and hemp in many cases. Ultimately, the distinction between the two is in how much tetrahydrocannabinol, or THC, they contain. Any product which contains less than 0.3% of THC is considered hemp, while anything above this threshold is legally considered marijuana.

Because THC is the psychoactive compound in cannabis products, Texas lawmakers have exercised more regulations over products with higher THC levels than those with CBD, the non-psychoactive compound in cannabis. In fact, CBD products are legal in the state, so long as they contain less than 0.3% THC. 

This is a measure that was signed into law in 2019 as HB 1325. Since the bill passed, the Texas legislature has faced challenges in setting up provisions for how CBD products will be manufactured and processed.

The Texas Department of State Health Services has banned the production of smokable hemp so that only medical cannabis is legal in the state, and only under very specific circumstances.

Under HB 1325, delta-8 remains legal in the state, but a DSHS attempt to classify it as an illegal substance has created some confusion among manufacturers. Delta-8, a psychoactive substance produced by cannabis plants, has become more popular for the high it can produce in extremely concentrated amounts.

Texas’s approach to legalization has been slower than in states like California and Colorado, where the legalization of cannabis products for recreational adult use has allowed marijuana production to flourish. The state is among nine others that have legalized access to CBD products with THC concentrations below 0.3%.

Several Texas lawmakers have made efforts to increase access to marijuana products and to make the penalties for marijuana convictions less severe. While some of these efforts have passed in the House, none have been signed into law. This is all subject to change in the 2022 midterm elections, when incumbent Governor Greg Abbott will face Democratic candidate Beto O’Rourke. Both candidates have expressed interest in decriminalizing marijuana in the state, but O’Rourke has campaigned to make cannabis products legal and available for recreational adult use at the state level.

Both parties have expressed interest in pushing for decriminalization and lesser penalties for marijuana-related charges. As it stands now, possession of 2 ounces or less is considered a Class B misdemeanor and is punishable by up to 180 days in jail and a $2,000 fine. Possession of between 2 and 4 ounces is considered a Class A misdemeanor and is punishable by up to a year in jail and a $4,000 fine. Possession of any more than that is considered a felony.

Despite these strict regulations, low-level possession charges are becoming less and less frequent among Texas law enforcement agencies. In an attempt to keep offenders out of jail, officers are encouraged to issue warnings to people found with small amounts of marijuana on single offenses. 

Some Texas cities have taken the matter into their own hands. The city of Austin has ended most arrests and fines for small possession offenses. Earlier this year, Austin voters supported a measure to decriminalize marijuana in the city.

While measures like this one are significant on a city-by-city basis, there have been few efforts to introduce decriminalization on a state level. Though Gov. Abbott’s 2019 bill to legalize hemp didn’t do much for the fight for decriminalization, it had a noteworthy impact on the number of marijuana arrests across the state of Texas. Part of this was because of the aforementioned efforts to decrease the number of offenders in jail, but also because of law enforcement agencies’ access to testing equipment that can distinguish between marijuana and hemp.

Ultimately, the decision to legalize is largely in the hands of the voters. Recent polls suggest a fair amount of support for such measures. Data from the University of Texas found that 84% of Texas voters are in support of legalization, either medically or recreationally. Similarly, a May 2022 poll from the Dallas Morning News reports that 83% of the state’s voters would support legalized medical use.

These voters will take to the polls later this year, when issues like legalization and the gubernatorial race will be decided. The results of this November’s election can have a significant impact on the way the state of Texas approaches increased access to marijuana and cannabis products in the future.

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