Hemp and THC Charges in Texas: What Changed in 2026

The short answer. In Texas the difference between a legal product and a felony is a number produced in a laboratory. Hemp is cannabis with a delta-9 THC concentration of not more than 0.3 percent by dry weight under Agriculture Code chapter 121. On March 31, 2026, a Department of State Health Services rule changed how that 0.3 percent is measured, adding THCA to the calculation. That rule has been litigated all year. A federal change to the definition of hemp is scheduled for November 12, 2026. If you are charged today, the date of the alleged offense decides which set of rules applies to you.

Why the number matters more than the plant

Nothing about the plant tells you whether a crime happened. Hemp and marihuana look the same, smell the same, and burn the same. What separates them is a concentration threshold written into the Agriculture Code, and whether a given item is over or under that line is a question only an instrument can answer.

That is unusual in criminal law. In most cases the State proves what a man did. In these cases the State proves what a machine said about a substance, and the defense work is about the machine, the method, the sample, and the chain of custody.

What did the March 2026 rule change?

The Department of State Health Services rule at 25 Texas Administrative Code § 300.101, effective March 31, 2026, redefined the acceptable THC level to account for both delta-9 THC and THCA, at 0.3 percent or less on a dry weight basis.

THCA is the acid form of THC that converts to delta-9 THC when heated. Measuring “total THC” rather than delta-9 alone captures products that test under the line in their raw state and over it once smoked. The practical effect of the rule is to reach nearly all smokable consumable hemp products sold in Texas.

The rule was challenged immediately. Here is where that stands as of September 22, 2026, and I will update this page when it moves.

Texas Hemp Business Council v. Texas Department of State Health Services

Date	What happened
April 7, 2026	Suit filed in Travis County district court, Cause No. D-1-GN-26-002511
April 10, 2026	Temporary restraining order granted
May 1, 2026	Temporary injunction granted; the rule is blocked
June 2026	The Fifteenth Court of Appeals denies the industry’s emergency motion. The injunction dissolves and the rule takes effect
June 26, 2026	Request to reinstate the injunction denied
September 17 to 18, 2026	The State files its reply brief in No. 15-26-00099-CV. Briefing is closed. No opinion, no argument date

So the rule is in effect today and is being enforced. There is no injunction. A decision from the Fifteenth Court of Appeals could issue in any week.

A separate case is worth knowing about. In Texas Department of State Health Services v. Sky Marketing Corp., No. 23-0887 (Tex. May 1, 2026), the Supreme Court of Texas held that DSHS could schedule delta-8 THC, lifting the injunction that had protected it. The Court did not decide the question of naturally occurring THCA, which is the question the Fifteenth Court has now.

Is possessing THCA flower a crime in Texas right now?

Nobody can tell you with confidence, and anyone who does is guessing. That is an uncomfortable sentence to put on a lawyer’s website, and it is the truth.

The agencies do not agree with each other. The Department of Public Safety has taken the position that it does not determine legality, that courts do. Some police departments have said they will not seize product testing under 0.3 percent delta-9. Other agencies treat the same product as a felony. Prosecutors in different counties have described enforcement as difficult precisely because of the lack of clarity.

What that means practically is that the answer in your case may depend on which agency stopped you and which county you were in. That is not how criminal law is supposed to work, and it is exactly the kind of case where a motion to suppress and a fight over the laboratory method are worth having rather than pleading to.

What else changed in 2026

Texas consumable hemp rules, 2025 to 2026

Change	Effective	Source
Sales of consumable hemp products to anyone under 21 prohibited, with age verification required	January 21, 2026	TABC Rules 35.5 and 35.6
THC measurement includes THCA; 0.3 percent or less on a dry weight basis	March 31, 2026	25 Tex. Admin. Code § 300.101
Sale of e-cigarette products containing any cannabinoid prohibited	2025 legislation	Tex. Health & Safety Code § 161.0876
Federal definition of hemp narrowed to a total-THC standard, including THCA, with a cap of 0.4 mg total THC per container; synthetic cannabinoids barred	Synthetics November 12, 2026; the rest December 11, 2026	H.R. 5371, Pub. L. 119-37 § 781, as delayed by H.R. 6500 (signed September 2, 2026)

Two things about that last row. First, the federal change was originally set for November 12, 2026, one year after enactment. Legislation signed on September 2, 2026 pushed most of it to December 11, 2026, but did not move the piece covering cannabinoids that cannot be naturally produced by the plant. So there are now two federal dates. Second, the December date is tied to a funding measure that expires the same day, which means it is not a settled date either.

Executive Order GA-56, issued September 10, 2025, directed DSHS, the TABC and DPS to restrict THC product sales to anyone under 21 and to require government-issued identification at the point of sale. That order is the origin of the TABC rules above. It followed the Governor’s June 22, 2025 veto of Senate Bill 3, which would have banned THC products outright; the veto message said the ban would likely have been preempted and enjoined. Regulation then moved from the Legislature to the agencies, which is why the current rules are being fought over in an appellate court instead of a committee room.

What are you actually charged with?

This is where people get hurt, and the trap is in the phrase “aggregate weight, including adulterants or dilutants.”

Plant material is prosecuted as marihuana under Health and Safety Code § 481.121. Two ounces or less is a Class B misdemeanor. Concentrates, oils, edibles, and vape cartridges are generally prosecuted as tetrahydrocannabinols in Penalty Group 2 under § 481.116, and there the whole weight of the product counts, not the weight of the THC in it.

Two ways the same amount of THC gets charged

What was seized	Statute	Offense level
One ounce of plant material	§ 481.121(b)(1)	Class B misdemeanor
One vape cartridge, weighed with its liquid, under one gram	§ 481.116(b)	State jail felony
Four gummies weighed together, one gram or more but under four grams	§ 481.116(c)	Third degree felony
A jar of edibles, four grams or more but under 400 grams	§ 481.116(d)	Second degree felony

Read those four rows again. A person who would have a Class B misdemeanor if he bought a bag can have a second degree felony because he bought a jar of candy at a store that was operating openly on Blanco Road. That is not a hypothetical. It is the most common way I see this go wrong.

Is “I bought it legally at a store” a defense?

Not by itself, and I am not going to pretend otherwise. But it is not nothing either. It goes to the culpable mental state, it goes to punishment, and where the product was purchased from a licensed retailer, the packaging, the certificate of analysis, and the batch records are evidence that has to be obtained fast, before a store closes or a distributor purges records.

Get the receipt. Photograph the packaging, all sides, before anything is turned over. Do not throw out the box.

Can an officer search a car based on the smell of marihuana?

The Fourth Court of Appeals in San Antonio addressed the hemp argument directly in Isaac v. State, No. 04-22-00203-CR (Tex. App. San Antonio Aug. 16, 2023). The accused argued that because legal hemp looks and smells like marihuana, sight and smell can no longer establish probable cause. The court affirmed the denial of the motion to suppress, holding that marihuana remains illegal and the probable cause standard is unchanged.

I want to be straight with you about that case rather than sell you a version of it. It went against the accused. What it did not hold is that odor alone, standing by itself, always suffices. The officer in that case testified he saw what appeared to be two joints, watched the man move them, and observed lethargic movement and glassy eyes. Probable cause is a totality question. The cases where the defense has something to work with are the cases where the stack of facts is thinner than that one, and those cases are litigated fact by fact.

The other half of the fight happens earlier, at the stop itself. Under Rodriguez v. United States, 575 U.S. 348 (2015), a traffic stop may not be prolonged beyond the time needed to handle the reason for the stop in order to conduct a dog sniff, absent reasonable suspicion. The clock in the dash camera video is often the most important witness in a drug case, and it never changes its story.

What I look for in a hemp or THC case

The laboratory method. Was total THC tested, or delta-9 only, and which rule governed on the offense date
The analyst, the instrument, the calibration records, and whether the analyst who signed is the analyst who will testify
How the item was weighed, and whether packaging, liquid, or carrier was included in the aggregate weight
The certificate of analysis and the retail chain behind the product
The stop, second by second, against the video
Whether the search was consented to, and what the video shows about how that consent was obtained
Article 38.23 of the Code of Criminal Procedure, which requires suppression of evidence obtained in violation of the law and, where the facts are disputed, an instruction to the jury

If you are charged

Say nothing about where you got it until you have talked to a lawyer. Keep the packaging. Write down the date, the time, the street, and the names of every officer you can remember, today, while you still can.

Then call 210-663-3750 . I answer my own phone.