Delta-8 THC is a psychoactive compound that is similar to delta-9 THC, the primary psychoactive ingredient in marijuana. It has become increasingly popular in recent years due to its less intense effects and lower risk of causing anxiety or paranoia compared to delta-9 THC. However, the legality of delta-8 THC is somewhat of a gray area, and there is currently no federal law specifically addressing its legality.
In Texas, delta-8 THC is not explicitly listed as a controlled substance in the state’s drug laws. However, this does not necessarily mean that it is legal to possess or sell delta-8 THC in the state. The Texas Health and Safety Code defines a controlled substance as “a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4.” Delta-8 THC is not listed in any of these schedules or penalty groups.
However, the Texas Health and Safety Code also includes a catch-all provision that states that a substance can be considered a controlled substance if it is “an analogue of a controlled substance.” An analogue is a substance that is structurally or functionally similar to a controlled substance. Since delta-8 THC is similar in chemical structure and psychoactive effects to delta-9 THC, it could be argued that it is an analogue of delta-9 THC, which is a Schedule I controlled substance under federal law and a Penalty Group 2 controlled substance under Texas law.
The question of whether delta-8 THC is an analogue of delta-9 THC under Texas law has not yet been tested in court, and there is no clear consensus on the issue. Some legal experts argue that delta-8 THC is not an analogue of delta-9 THC because it is produced from hemp rather than marijuana and has a different chemical structure. Others argue that delta-8 THC is functionally similar enough to delta-9 THC to be considered an analogue.
Even if delta-8 THC is not considered an analogue of delta-9 THC under Texas law, it is still possible to face criminal charges for possessing or selling it. This is because Texas law includes a separate provision that prohibits the manufacture, delivery, or possession with intent to deliver a “controlled substance analogue.” This provision is designed to cover substances that are not specifically listed as controlled substances but are similar enough to them to be of concern to law enforcement.
Under this provision, a person who manufactures, delivers, or possesses with intent to deliver a controlled substance analogue can be charged with a third-degree felony, which carries a penalty of 2 to 10 years in prison and a fine of up to $10,000. Possession of a controlled substance analogue is also a third-degree felony, with the same penalties.
In conclusion, the legality of delta-8 THC in Texas is somewhat unclear, and the issue is likely to be the subject of ongoing debate and litigation. While it is not explicitly listed as a controlled substance under Texas law, it could be considered an analogue of delta-9 THC, which is a Schedule I controlled substance under federal law and a Penalty Group 2 controlled substance under Texas law. This means that possession or sale of delta-8 THC in Texas could potentially lead to felony charges, depending on how the courts interpret the law. Anyone who is considering using or selling delta-8 THC in Texas should be aware of these risks and should consult with a knowledgeable attorney to understand the potential legal consequences.
