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CBD and THC in Texas

Posted by Robert Luttrell | Aug 06, 2019 | 0 Comments

                CBD is making a lot of news lately.   CBD is Cannabidiol, it comes from the Cannabis plant.  There are claims about CBDs medical properties.   I have never used a CBD product so I can't say whether or not using CBD has any medical benefits.  There is research to suggest that it does have medical benefits.  The issues with CBD is that it comes from the Cannabis plant and the plant contains Tetrahydrocannabinol (THC) ,the part of Cannabis plant that makes you high.  It should be noted that CBD oil comes from a different Cannabis plant then what we commonly refer to as marijuana.   See https://www.medicalmarijuanainc.com/differences-cbd-thc/

                Are CBD oils and other CBD products legal?  This is a complicated question.  There are two sets of laws at play here.  One is the federal law and the other is each states laws.  Several states have made the use of marijuana legal for medical purposes and some have made it legal for recreational use.  The federal government has not changed the laws on using marijuana and it remains illegal under federal law.  This means the sale and possession of marijuana remains illegal under federal law.  The federal government has chosen to not pursue growers of marijuana in states that have made it legal.  This does not mean their position cannot change at any time.  If they did choose to enforce the federal law it would be interesting to see how the U.S. Supreme Court would rule. 

                I believe the recent decision by the U.S. Supreme Court in Murphy v. National Collegiate Athletic Association is quite telling. See https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf  The Supreme Court struck down a federal law that had been in place since 1992, which banned sports betting in all states but a few.  The Court ruled the states had the power to decide if sports betting should be legal.  They basically said it was a state right and the federal government had no business regulating it.  Most of you are wondering what sport betting has to do with marijuana, well quite a lot as, it's the same issue.  The issue is really one of state's rights.  Should the states be allowed to regulate the use of marijuana or should the federal government?  I believe based on the Murphy decision the Supreme Court has painted themselves into a corner on the issue of marijuana and would have to rule the states have the right to decide. 

                Where does CBD play into this?  The DEA currently treats CBD that contains THC as a schedule 1 narcotic.  This puts it up there with cocaine and heroin.  The DEA gets to decide what drugs fall into what schedule.  As of January 1, 2019 Hemp can be grown if it contains less than 10% CBD and less than .3% THC.  See https://www.govtrack.us/congress/bills/115/s2667/summary   This is known as industrial hemp.   Let me be clear it does not remove any other CBD from the Schedule 1 list.  If you manufacture or possess CBD that contains more than 10% CBD and/or more than .3% THC it is still a schedule 1 narcotic under federal law.

                Texas has recently passed a law that allows for the sale and manufacturing of CBD in Texas.  However, there are no regulations in place for it to be sold or manufactured.  The growing of hemp will be controlled by the Texas Department of Agriculture and the sale will be regulated by the Texas Department of State Health Services.  This puts Texas in a gray area for the sale of CBD.   Until regulations are implemented it becomes questionable if it can be sold.  The law is clear CBD must contain less than .3% THC and must come from the Cannabis sativa L plant.  No CBD can come from what is commonly called a marijuana plant even if it contains less than .3% THC.    https://legiscan.com/TX/text/HB1325/id/2026154    

Under the Compassionate Use Act (Texas Health and Safety Code, Chapter 487) there are some very strict requirements to use CBD that contains THC.  The law requires a prescription that is signed by two physicians; it requires a diagnosis of intractable epilepsy and it must have less than 10% CBD and not more than .5% THC.  The patient must also get the CBD from a licensed pharmacy.

                Texas has not legalized the recreational use of THC.  THC in any concentration above .3% or .5%, if from a pharmacy, is illegal in Texas.    THC in leaf form under 4 oz is a Class B misdemeanor.  However, THC in any other form that is above the .3% or .5% is a felony.  This is also true of what is called “dab”.  Dab is a wax that contains THC and is typically smoked in a vape device.  Dab is considered a synthetic form of THC as it is derived from a Cannabis plant but it is not in its natural from.   All synthetic forms of THC above the .3% and .5% are considered a felony and comes with severe consequences if you are caught with it.

                Employers in Texas and with the federal government will be allowed to terminate employment for cause if you are positive for THC.  The law will not protect your form being fired.  If you are a member of the military you could be court martialed for having THC in your system as it is illegal in all forms under the UCMJ.

                If you have questions about CBD or have been charged with a THC or any other drug related crime please contact the Law Office of Robert E. Luttrell III.  www.cleburnelaw.com     

About the Author

Robert Luttrell

Learn more about Attorney at Law, Robert E. Luttrell III Attorney Robert E. Luttrell III is a dedicated attorney who has years of experience in various types of law including family, divorce, child custody, criminal defense, b...

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