Personal use and cultivation

Possession and consumption

What rules and restrictions govern the personal possession and consumption of cannabis in your jurisdiction?

The Texas Controlled Substances Act (Sections 481.001 et seq. of the Texas Statutes & Codes Annotated) prohibits the possession and consumption of cannabis in Texas (Id. at Sections 481.119, 121). However, the Texas Compassionate Use Act allows for the possession and use of cannabidiol products that are less than 0.5% by weight of tetrahydrocannabinol (THC) by persons with intractable epilepsy when such products are prescribed by a doctor (Sections 169.001 to 169.005 and 487.001 to 487.201 of the Texas Statutes & Codes Annotated (West 2015)). However, the Agriculture Improvement Act 2018 removed only “hemp,” which it defines as any portion of the cannabis sativa L. plant with a THC concentration of 0.3% or less, from the Controlled Substances Act’s definition of “marijuana.” Thus, to the extent that the Texas Compassionate Use Act allows cannabis with a concentration greater than 0.3% to be used, it is still illegal under federal law. It remains to be seen whether Texas will modify its definition under the Compassionate Use Act to comport with the definition of “hemp” under the Agriculture Improvement Act 2018.

Cultivation

What rules and restrictions govern cultivation of cannabis for personal use?

The Texas Controlled Substances Act (Sections 481.001 et seq. of the Texas Statutes & Codes Annotated) prohibits the cultivation of cannabis in Texas (Id. at Sections 481.119).

In addition, although the Agriculture Improvement Act 2018 removes hemp from the federal Controlled Substance Act’s definition of “marijuana” and permits states to oversee the production of hemp, the cultivation of all forms of cannabis, including hemp, remain illegal in Texas. The Agriculture Improvement Act 2018 permits the large-scale commercial production of hemp. The act gives the authority to implement programs to oversee the production of hemp to states and, in the event that a state does not implement a program, the federal government retains the authority to oversee the production. Because Texas did not establish a hemp pilot program under the Agriculture Improvement Act 2014, it does not currently have a plan in place to oversee the production of hemp. Further, hemp continues to fall under Texas’s definition of “cannabis” (Section 481.002(26) of the Texas Statutes & Codes Annotated). Thus, because the Agriculture Improvement Act expressly does not pre-empt state laws regulating hemp production that are more stringent than federal law, hemp production would likely remain prohibited under the federal hemp program once it is initiated. Consequently, all cannabis cultivation, including hemp, will remain illegal in Texas until the state establishes a hemp program and removes hemp from its definition of “marijuana.”

Use in and outside the workplace

What statutory and case law (if any) governs employers’ ability to restrict cannabis use both in and outside the workplace? Can cannabis use (even medical use) serve as legal grounds for termination?

There is no law in Texas limiting an employer’s ability to restrict cannabis use, and Texas legislation has not addressed drug testing or drug policies. However, cannabis use may nonetheless serve as legal, non-discriminatory grounds for termination from employment in Texas (See Hardin v. Christus Health Se. Texas St. Elizabeth, 1:10-CV-596, 2012, WL 760642, at *8 (E.D. Tex. January 6, 2012), report and recommendation adopted, No. 1:10-CV-596, 2012 WL 760636 (E.D. Tex. March 8, 2012); Hall v. Smurfit–Stone Container Enters., No. 3:07–CV–0501–G, 2008 WL 3823252, at *4 (N.D.Tex. August 14, 2008)).

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