UPDATED, 11/11/2021: This story has been updated to include new information about Hometown Hero filing an emergency motion.
Just when you thought you could get back to smoking delta-8 thanks to a temporary injunction granted earlier this week, the Texas Department of State Health Services comes along and ruins your high.
On Wednesday, DSHS filed a notice of appeal that puts delta-8 and other hemp-derived THC isomers back on the state's 2021 list of controlled substances. DSHS is tangled in court with hemp companies like Austin manufacturer Hometown Hero CBD over its decision to ban the THC isomer products.
On Monday, a judge granted a temporary injunction on the ban, which meant smoke shops and other sellers could get back to selling delta-8 and other products like it.
But Wednesday's notice of appeal essentially cancels out that injunction, meaning delta-8 and other THC isomers are back on the Schedule 1 controlled substances list again.
Hometown Hero couldn't be reached for comment.
DSHS filed what’s called a "notice of interlocutory appeal," which automatically stays the trial and any other court proceeding, including the temporary injunction. “Notice is also given that, upon the filing of this instrument, the temporary injunction is superseded,” according to the court filing.
Hemp companies, like Hometown Hero, as well as consumers, believed that under state and federal law they could make and consume any hemp-derived THC isomers, as long as they didn't exceed the legal limit of delta-9 THC, 0.3%. Delta-9 is the primary psychoactive ingredient in weed.
Hemp companies involved in litigation against the state over the ban expected an appeal.
The Texas Hemp Growers organization warned on social media that the temporary injunction on the ban could be very temporary. The group, which is not a party to the litigation, shared a post by a cannabis lawyer named Chelsie Spencer of Ritter Spencer PLLC in Addison.
“As the hemp industry in Texas celebrates, it is a great time to remind everyone of the terrible appellate rule in Texas that permits the Attorney General's office the right to automatically suspend a temporary injunction entered by a co-equal branch of government simply by filing a notice of appeal and requesting it,” Spencer explained in a LinkedIn post.
She said this suspension is automatic and granted without the benefit of judicial review. “In operation, the rule poses a grave due process issue, as it places the burden on the Plaintiffs to head to the appellate court and argue for reinstatement," Spencer said.
The implications of this rule are far reaching, she said. “While this rule remains in place, the state of Texas and its agencies can ignore any injunction covering any subject matter entered by any trial court in the entire state of Texas simply by filing a notice of appeal and invoking the rule,” Spencer said.
Reached for clarification, Spencer told the Observer this means that things are back to how they were before the injunction was granted. However, the state maintains delta-8 is a Schedule 1 substance regardless of the changes made, in part, because it is on the federal list of controlled substances.
“The state has been very clear in argument that it believes delta-8 was scheduled in Texas prior to that scheduling action,” Spencer explained.
Hometown Hero will now need to file an emergency motion to try to get the injunction reinstated by the 3rd Court of Appeals, Spencer explained. She added that this same kind of appeal was made when CBD companies got a temporary injunction on the state's smokable hemp ban. The companies were able to file the emergency motion required and got the injunction reinstated.
On Wednesday, Hometown Hero filed the emergency motion to have the injunction reinstated. The state has been given until Nov. 15 to respond to the motion. Around then is when a panel of three judges will decide whether or not to reinstate the injunction.