Texas’ Supreme Court has put an expiration date on a lower court order that had blocked a state agency’s classification of hemp-derived delta-8 THC as a Schedule I controlled substance. This follows the Court’s May 1 ruling that upheld the Texas Department of State Health Services’ (DSHS) 2021 classification of the substance.
A Schedule I controlled substance is considered by Texas law to have a high potential for abuse and no safe, accepted medical use in the United States. There are severe legal consequences for the possession and distribution of such drugs.
The Court has stayed the trial court’s temporary injunction, effective at 5:00 p.m. May 28.
Background
In October 2021, Sky Marketing Corp.—operating as Hometown Hero—and other hemp retailers filed a lawsuit asking the court to order DSHS to rewrite the schedules of controlled substances and to block the state from enforcement actions based on the modified definitions.
They argued that the DSHS effectively outlawed Texas hemp production contrary to the Legislature’s intent.
Travis County 126th District Court Judge Jan Soifer agreed, granting a temporary injunction in November 2021 that blocked the enforcement of the Delta‑8 rule changes while the case proceeded on the merits. The court of appeals affirmed the injunction.
On May 1, Texas’ Supreme Court ruled on the merits, siding with the DSHS. This upheld the agency’s decision to list delta‑8 as a Schedule I controlled substance—meaning there would be severe legal consequences for the possession and distribution of such drugs.
Yet the ruling did not instantly wipe out the trial court injunction because parties ordinarily get a short window to seek a rehearing before the mandate is issued.
On May 15, the Texas Supreme Court issued a follow‑up order that stayed the injunction. The stay is currently set to take effect at 5:00 p.m. on May 28, effectively serving as an expiration date for rehearing to be considered before the injunction ends.
Related Litigation
A separate hemp battle is playing out in the state courts simultaneously. A lawsuit brought by the Texas Hemp Business Council (THBC) is challenging a series of 2026 hemp regulations instituted by the DSHS.
On May 1, Travis County 261st District Court Judge Daniella DeSeta Lyttle blocked these new regulations from taking effect—allowing the products to remain on the market as the case moves forward, until at least July 27.
The Sky Marketing case concerns all hemp-derived delta-8 THC products, which must be pulled from the market once the stay takes effect. The 2026 regulations challenged in the THBC case primarily concern intoxicating smokable hemp or THCA products—which remain blocked as the case proceeds.
The Supreme Court’s May opinion suggested the Legislature must ultimately determine the path forward.
“If the legislature desires to legalize powerful drugs, it has every tool it needs to do so—and to do so unmistakably, as we expect for such a major change to social policy,” wrote Justice Evan Young. “The role of the courts is merely to assess the state of the law as it is.”
Lawmakers are expected to again take up legislation on THC in 2027, with Lt. Gov. Dan Patrick already signalling it will be a personal priority.
If you or anyone you know has information regarding court cases, please contact our tip line: scorecardtips@protonmail.com.
