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Texas Supreme Court upholds smokable hemp ban, strikes down retail ban

texas supreme court strikes down ban on retail of smokable hemp

In a unanimous decision the Texas Supreme Court has upheld that the manufacture and processing of smokable hemp is illegal in Texas.

The states highest civil court decision was delivered by Justice Boyd. A concurring opinion was filed by Justice Young, and joined by Justice Hecht, Divine, and Blacklock. The decision kept the manufacture and processing part of the smokable hemp the intact. But maintained the injunction in other areas of smokable hemp.

Read more about the smokable hemp ban in Texas

On ruling for the case the justices note,

“To decide this case, we need not determine precisely what constitutes a “common occupation” or a “lawful calling.” Nor must we decide how or whether Texas’s due-course clause protects all such occupations or callings. It is enough to observe that the due-course clause, like its federal counterpart, has never been interpreted to protect a right to work in fields our society has long deemed “inherently vicious and harmful.”

Chelsie Spencer on smokable hemp and texas supreme court - attorney for ritter spencer and crown distributing

Chelsie Spencer, attorney for Crown Distributing, stated about the decision, “We are profoundly disappointed in this decision and disheartened by the continued stigma surrounding cannabis. It is telling when the Court insinuates that cannabis is “inherently vicious and harmful.”

susan hays on smokable hemp and texas supreme court - candidate  for texas ag commissioner

Susan Hays, an attorney and candidate running for the role of Texas Agriculture Commissioner in the upcoming election, told Texas Cannabis Collective, “this is what happens when you have state leaders who don’t understand the plant or the cannabis business. Elections have consequences.”

Hays noted that we must get people in office who will advocate for cannabis — and know what they are talking about. And that in addition to the Ag Commissioner, we need a Governor and a Lieutenant Governor who get it when it comes to cannabis.

Check out our 2022 candidate interview articles and podcasts

The court refers to hemp as vicious and harmful twice in the ruling. Later in the ruling, stating that rights to economic liberty and a right to making a living do no reflect the well-established precedent recognizing the limitations. Limitations to common occupations and lawful callings, which exclude an interest in an “inherently harmful and vicious” economic endeavor, or a right that is not vested.

“For due-process and due-course purposes, such an interest is properly characterized as a form of “property” interest. But to be constitutionally protected, a property interest must be “vested.” When an interest “is predicated upon the anticipated continuance” of an existing law and is “subordinate to” the legislature’s right to change the law and “abolish” the interest, the interest is not vested,” the court states in the opinion

The court really doe not directly address the concerns of the irrational basis that is not rooted in any governmental interest. If anything once could state that the court did a sort of dance around the issue. Part of the opinion also states that possession and use of hemp products along the manufacture of similar products doesn’t boost the argument hemp companies made. That the companies desire to make a smokable hemp product, despite the material do so becoming legal, does not transform said desire into a constitutionally protected interest.

Read more about Delta-8 in Texas

The court has basically take the stance that if the government has been able to keep a business’ operations from being a legal operation, no matter how long it was allowed to be a legal operation, that the state legislature has the power to make an operation illegal again. And can do so regardless of how irrational the basis for the rule may appear.

smokable hemp cannabis flower

A bit that stands out is what appears to be an admitting from the court the cannabis has medical benefits. This may be a key point other groups could use in the future such as the delta-8 case currently awaiting a hearing by the same court.

The Cannabis sativa L. plant also produces another cannabinoid called Delta-9 tetrahydrocannabidiol, commonly referred to as THC. THC may also provide relief for certain ailments, including nausea, spasms, appetite loss, and neuropathic pain.

Learn how to become a medical cannabis patient in Texas

The final note from the case allows the retail sale and distributing of the products to continue though.

“Because the Department no longer defends the portion of rule 300.104 that prohibits the “distribution” and “retail sale” of consumable hemp products for smoking, the trial court’s injunction against enforcement of that portion remains. We otherwise reverse the trial court’s judgment and render judgment accordingly.”

This means that shop owners will be able to still sell a pre-roll or other smokable items on the shelf, but that pre-roll can not have been manufactured in Texas. If flower is put in a container and the purpose off said flower is to smoke, that cannot be done in Texas. But that can be done in another state, and then sold in Texas. That means hempette products can still be sold in stores, but those products could not be processed or created in the state of Texas.

Keep your eyes attentive as the state goes through elections and our court gets ready to take up the Delta-8 case in the future.

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