For years, Texans could walk into a smoke shop and buy cannabis flower that looked and smelled exactly like the marijuana Willie Nelson spent decades singing about. That's because it came from the same cannabis plant, but was sold legally as hemp.
But after a flurry of administrative rule changes, now no one KUT News asked could say definitively whether merely possessing those smokable hemp products remains legal, or whether a few crumbs of concentrate could bring a felony charge.
The confusion stems from a compound found abundantly in cannabis. THCA, short for tetrahydrocannabinolic acid, doesn't get people high in its raw form. But the flame of a lighter or the heat of a vape rig converts THCA into Delta-9 THC, the plant's primary psychoactive ingredient.
Not even the Department of State Health Services, which writes the controlled-substances schedule used by police, would clarify whether its list sweeps in hemp flower and concentrate.
"DSHS does not regulate the possession of consumable hemp products so your questions about possession should be directed to law enforcement," department spokesperson Lara Anton told KUT News in an email.
Law enforcement agencies offered strikingly inconsistent answers. Austin police said smokable hemp products remain legal to possess. In Round Rock, which borders Austin, police suggested possession would be a felony. The Travis County Sheriff's Office said it's up to the discretion of the deputy.
Travis County District Attorney José Garza, whose office prosecutes felony drug cases in Austin, warned that "the risk for arrest is real" but that "it's going to be incredibly difficult to enforce the law with the lack of clarity."
Leaving it on police officers to interpret uncertain drug laws puts them in a precarious position. An officer must make an arrest decision within minutes that state officials, prosecutors and lawyers haven't been able to figure out in months.
A bad call could expose an officer to discipline or even a lawsuit, said John Wilkerson, a Bell County sheriff's deputy who also works for the Texas Municipal Police Association.
"It's a mess," Wilkerson said.
How Texas got here
In 2018, Congress legalized hemp by separating all cannabis into two groups based on a single arbitrary number: the concentration of Delta-9 THC by dry weight. Cannabis with up to 0.3% Delta-9 was legal hemp. Anything above that remained marijuana.
Texas lawmakers followed suit the next year, passing an almost-identical law. Only three lawmakers were opposed.
The Legislature's new definition of hemp was expansive. The language specifically included the entire plant and all its derivatives, extracts, cannabinoids, isomers and acids — a category that would include THCA — as long as the Delta-9 concentration remained under the legal limit. Lawmakers even carved out hemp and the THC in it from the Texas Controlled Substances Act.
The new law sparked a booming market for legal hemp products. Among them: flower rich in THCA but low in Delta-9. Concentrates made by pressing parts of the plant until a sticky liquid oozed out could contain even more THCA. Once heated and inhaled, both produced the exact same high as marijuana.
This year, those products vanished from store shelves. DSHS changed the THC math governing what hemp businesses could make and sell. Instead of counting only the Delta-9 already present, the new formula added 87.7% of a product's THCA to its Delta-9 concentration.
That made high-THCA flower and concentrates noncompliant for manufacture or sale in Texas. A Travis County judge temporarily blocked the changes. In June, the 15th Court of Appeals put them back in place. The rules are still being challenged in state court.
But those were only business regulations. They didn't change the Legislature's hemp law, which declared the plant and any part of the plant legal to possess.
Then DSHS changed the rules again, and that wording has become a source of widespread confusion.
How DSHS interpreted a Texas Supreme Court decision
After President Trump signed the bill legalizing hemp in 2018, Texas moved quickly to remove hemp from the state's list of the most dangerous drugs: the Schedule I List of Controlled Substances. Other drugs on the list include crack cocaine, heroin and LSD.
The Texas Legislature wouldn't legalize hemp for another two months. But the federal law had removed hemp from the federal Schedule I, so the state health department followed suit.
But oddly, when the Drug Enforcement Administration updated its own rulebook in 2020 to match the federal statute, Texas objected to the rule it had already adopted.
Then-Texas Health Commissioner John Hellerstedt argued new federal definitions would allow for THCs that "may have pharmacological or psychoactive properties," even though Texas had already removed them from its own list of dangerous drugs more than a year earlier.
Hellerstedt held a hearing over Microsoft Teams on Oct. 6, 2020, to get public feedback.
No one showed up. No one wrote in.
So in 2021, DSHS changed its roster of dangerous drugs again. Hemp and all its THCs, both natural and synthetic, were added to the list, with one exception: Delta-9 under 0.3%.
Hemp businesses sued. A Travis County judge issued a temporary injunction, blocking DSHS from enforcing the new definitions while the case unfolded.
After almost five years of legal battles, DSHS scored a major victory at the Texas Supreme Court. In May 2026, the court sided with the state and dissolved the temporary injunction. But the court's opinion was focused on Delta-8 THC, a less potent THC than Delta-9 that's commonly found in sleep gummies.
Cannabis only contains tiny amounts of Delta-8. So manufacturers typically synthesize Delta-8 by using solvents and acids to modify hemp-derived cannabidiol (CBD).
The Texas Supreme Court said the Legislature never intended to legalize hemp compounds at concentrations not found in nature.
The court acknowledged "at least some theoretical tension" between the hemp law and the drug schedule. And it conceded that the Legislature legalized "the naturally occurring constituents of THC in hemp." But the court's opinion never explicitly said DSHS could criminalize naturally occuring compounds.
During oral arguments, Justice Evan Young tried to get the state to concede that naturally occurring Delta-8 manufactured in the plant would be legal.
"The definition of controlled substance says it does not include hemp or the THCs in hemp," Young said from the bench. "And so if you're taking something that even is just a trace amount, but it's in hemp, isn't it defined by the statute as not being a controlled substance?"
The state's attorney, Cory Scanlon, didn't answer the question directly, instead referring to "the chemical synthesis process" used to manufacture Delta-8.
"I think that we would accept the manufacturing process for hemp that doesn't compound THC into a highly concentrated form that's intoxicating," Scanlon responded to a follow-up question. "I'm just speculating in response to your hypothetical, but that could be a permissible form."
Nevertheless, after the ruling, DSHS reinstated the 2021 definitions that included all THCs "naturally occuring" in hemp except Delta-9. Those rules took effect July 31.
The new drug schedule appears to sweep in THCA. When compared against the law passed by the Legislature, which protects hemp and the THCs in it, the provisions seem to contradict each other.
"It hasn't been decided," said Sarah Todd with the Texas Cannabis Policy Center. "It's not definitively resolved because the DSHS rules are in conflict with state law."
A federal lawsuit filed July 31 points to THCA as evidence of the same confusion. Hemp businesses argued that the Legislature's broad exemption can't be reconciled with the narrower DSHS schedule. The case is still in the early stages.
Craig Bennett, an adjunct professor who teaches Texas administrative law at the University of Texas and Baylor University, didn't offer an opinion on the THCA dispute itself. But he said the relationship between statutes and agency rules is clear.
"Agencies are essentially creatures of the Legislature," Bennett said. "The Legislature creates them, gives them the power that they have. And an agency cannot contradict a statute that it's charged with enforcing or applying."
Bennett said someone could ask a court to declare a rule invalid under the Texas Administrative Procedure Act. A person facing jail time could also challenge the rule as a defense, but only after the government had already brought a criminal case against them.
Cynthia Cabrera with Austin-based hemp business Hometown Hero, the lead defendant in the Delta-8 case, raised a logical objection to THCA being treated as a Schedule I substance: THCA is the precursor to Delta-9.
"If you banned THCA just flat out, just with no explanation or details or definitions, then you would be banning everything because Delta-9 needs THCA in order to become Delta-9," Cabrera said. "You can't make a cake without flour."
Different badges, different rules
Across the state, police departments are left to reconcile the contradiction themselves. They all agree that THCs manufactured to occur in greater concentrations than those found in nature, like Delta-8, are a felony to possess.
But when it comes to hemp flower and its natural extracts like THCA rosin, there's no consistent interpretation.
The Austin Police Department said its policy is not to arrest people or seize hemp flower or concentrate if the product falls under the legal Delta-9 limit defined in state law.
"Regarding concentrates labeled as hemp or THCA containing 0.3% or less Delta-9 THC, department policy dictates that the substance is not seized and no further enforcement action is taken," APD spokesperson Sadot Azzua said in an email.
On the other hand, the Hays County Sheriff's Office said, "THCA will not be legal according to the State Department." But, Deputy Alyssa Davenport said, "Anything labeled as hemp, or Delta-9 THC 0.3%, will be considered legal."
Of course, most if not all THCA products are labeled hemp with listed Delta-9 THC amounts under 0.3%, which speaks to how confusing the issue can be.
The Travis County Sheriff's Office said its deputies use drug test pouches made by a Sugar Land-based company called DetectaChem to determine if a product contains more than 0.3% Delta-9 THC. But when it comes to the question of whether THCA is legal, the law enforcement agency wouldn't say.
"In each instance, one thing is common: Search, seizure and arrest associated with illegal substances is up to the discretion of the deputy, who can seek guidance from a supervisor as needed," TCSO spokesperson Kristen Dark said. "It is ultimately up to the deputy to establish probable cause for any action taken."
Fort Worth police provided a similar answer but didn't address the THCA question directly.
"It is legal to possess less than 0.3% of Delta-9," Officer Tracy Carter said.
Police in the Austin suburb of Kyle said they'd approach potential enforcement involving THCA products on a case-by-case basis.
"Products labeled as hemp or THCA containing no more than 0.3% Delta-9 THC are evaluated based on the totality of the circumstances," spokesperson Ashlee Bradshaw said. "At the officer's discretion, a product may be tested to determine its contents and whether it complies with applicable state law."
The Dallas Police Department quoted the state health department's new regulations for hemp businesses that state THCA is treated as 87.7% Delta-9 THC, but then qualified the response.
"This does not state it's automatically illegal," DPD spokesperson Allison Hudson said.
Round Rock police didn't answer the question directly. The department referred KUT News to the Texas State Law Library's cannabis guide. On the question of THCA's legal status, the state guide linked to a private criminal defense lawyer's blog post, which concluded that the July 31 schedule made THCA illegal.
The Texas Department of Public Safety, the statewide law enforcement agency whose crime labs test seized cannabis, offered no interpretation at all.
"DPS does not determine legality; legality is determined by the courts," spokesperson Sheridan Nolen said.
That leaves the practical answer dependent on where a person is stopped, what an officer believes the product contains, what a laboratory tests for and whether a local prosecutor accepts the case.
An officer has to make the first decision before any court has settled the question.
"While charges can be dropped, you can't exactly un-arrest somebody, right?" Wilkerson said.
He said officers across Texas have a simple request for state officials: "Quit making it confusing. Either it's legal or it's not legal."
This story has been corrected to indicate that John Wilkerson is a sheriff's deputy and not a former police officer.
Copyright 2026 KUT News
