THC and delta-8 in Texas after July 31, 2026

What changed, and when?

• 2021: the Department of State Health Services (DSHS) amended the state schedules to clarify that manufactured delta-8 THC remained a Schedule I controlled substance. A state district court in Austin blocked enforcement in Sky Marketing Corp. v. DSHS.
• May 1, 2026: the Supreme Court of Texas reversed the injunction, holding that the commissioner acted within her authority (Tex. Dept. of State Health Services v. Sky Marketing Corp.).
• June 5, 2026: the court issued its mandate.
• July 10, 2026: DSHS published notice in the Texas Register reinstating its 2021 definitions.
• July 31, 2026: the reinstated schedule took effect. Delta-8 and all THC isomers that are not delta-9 are treated as controlled substances.

Sources: Tex. Dept. of State Health Services v. Sky Marketing Corp. (Tex. May 1, 2026); TDCAA, July 2026 legislative update; USA Today, July 31, 2026.

What is still legal?

Consumable hemp products with no more than 0.3% delta-9 THC on a dry weight basis, sold under Health and Safety Code chapter 443. Products containing manufactured delta-8 or another non-delta-9 THC isomer are not protected, even if purchased in a store before July 31, 2026.

What are the penalties?

Prosecutors treat these products under Penalty Group 2, charged by aggregate weight (Health and Safety Code 481.116): under 1 gram is a state jail felony (180 days to 2 years, fine up to $10,000); 1 to 4 grams is a third-degree felony; 4 to 400 grams is a second-degree felony; 400 grams or more is 5 to 99 years or life.

How are these cases defended?

Lab testing is central. The State must prove the product contained a controlled THC isomer, not legal delta-9 hemp, and prove the weight. The date of possession, the search and who possessed the product also matter.

Check the date. This area is subject to ongoing litigation and possible legislative changes. This page reflects the law as of October 2026.

How do labs decide whether a product is hemp or a controlled substance?

The key questions are which cannabinoid is present and how much. Hemp is legal only if the delta-9 THC concentration is no more than 0.3% on a dry weight basis. Since July 31, 2026, the presence of manufactured delta-8 or another non-delta-9 THC isomer can itself make a product a controlled substance. THCA flower raises a further question, because THCA converts to delta-9 THC when heated. Ask whether the lab measured each cannabinoid, how it handled THCA, and whether it reported uncertainty.

What about the label or certificate of analysis?

A product label or a certificate of analysis from the manufacturer is not a defense by itself, but it can be relevant evidence about what the product was and what the person believed. Keep the packaging, the receipt and any certificate of analysis. Do not use or discard the product if you have been charged.

What if I sell THC products in a store?

Retailers and employees can face delivery charges, which carry higher ranges than possession. A store owner or manager should get legal advice about inventory that may now be treated as a controlled substance. We represent people who are charged; we do not advise on licensing or regulatory compliance.

What is the timeline of a THC case?

1. Stop or search and seizure of the product
2. Arrest or citation, then magistration and bond
3. Lab submission; results can take weeks or months
4. Filing as a felony (grand jury) or misdemeanor, depending on the substance and weight
5. Discovery, motions, negotiation or trial

Checklist if you were charged

• Keep receipts, packaging and any certificate of analysis.
• Write down where and when you bought the product.
• Do not discuss the case on social media.
• Do not accept a plea before the lab report is reviewed.

Where are these cases heard outside Dallas?

Misdemeanor cases are heard in the county-level criminal courts, and felonies in the district courts, of the county where the offense is alleged to have happened. We handle cases from our only office, in downtown Dallas, in 12 North Texas counties. Each county page lists the courthouse, the prosecutor's office and the jail: Dallas, Tarrant, Collin, Denton, Rockwall, Kaufman, Ellis, Johnson, Parker, Wise, Hunt, Navarro.

What did the Texas Supreme Court decide?

In Texas Department of State Health Services v. Sky Marketing Corp. (May 1, 2026), the court held that the vendors had standing but that the health commissioner acted within her statutory authority under Health and Safety Code 481.034(g) when she amended the state schedules to treat manufactured delta-8 THC as a Schedule I controlled substance. It reversed the injunction that had blocked enforcement since 2021.

What does DSHS say about hemp products now?

The Department of State Health Services says only trace amounts of delta-8 THC naturally produced by the hemp plant are permissible in a consumable hemp product, and that products labeled to contain delta-8 THC or shown to contain more than trace amounts of THC, including delta-8, may be detained and referred to law enforcement. It also says it intends to amend its consumable hemp rules to include this definition. Retailers and distributors should expect inspections and referrals, not just criminal cases against buyers.

Does the change apply to things I did before July 31, 2026?

The reinstated definitions took effect July 31, 2026. Conduct is judged by the law in effect when it happened, so the date of the alleged possession or sale, and the evidence of that date, can be important.

How do I get started?

The first consultation is free. It is with a Director of Client Engagement, not an attorney. Clients who hire us work with an attorney. Call (214) 239-2013 or start a chat. Phones and chat are answered 24/7, with AI covering when no staff is free.

Last updated October 2026