With the number of outlets springing up marketing cannabidiol (CBD) oil, you might think that the substance is legal in Texas.
And you’d be wrong.
For all but a small number of Texans, possessing CBD oil can get you arrested, jailed and fined, according to local attorneys.
Non-prescribed CBD oil is illegal in the state, according to the Tarrant County district attorney’s office.
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“I’ve been looking at the news every day on the edge of my seat wondering if one of these police departments is going to raid one of these shops,” said Luke Williams, a criminal defense attorney for Barnett, Howard and Williams. “The only thing we can say is CBD oil is not legal in Texas and you do what you want with it at your own risk.”
In Texas, if you possess CBD oil with any trace of THC (tetrahydrocannabinol), you could be charged with a felony for possession of a controlled substance which, depending on the weight in grams, can carry a range of punishment from 180 days in a state jail facility up to 20 years in prison.
“Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that it tested positive for THC, the active ingredient in marijuana,” Williams said.
Possessing CBD oil is legal for a small number of Texans with intractable epilepsy who are prescribed medical marijuana under the state’s Compassionate Use Act passed by legislators in 2015. People purchasing or selling CBD oil for any other purpose are breaking state law, Williams said.
“You start with a felony with THC and it only gets worse as the substance is weighed,” Williams said. “Our research has indicated that THC is a lot like coffee with caffeine in it. Even when you order it caffeine-free there is still a trace amount of caffeine in it.”
Because the federal and state laws are so confusing and changing so rapidly concerning marijuana and marijuana products, law enforcement officials may be waiting for people to better understand what the rules are, he said.
There is a certain amount of misinformation out there, said David Sloan, attorney and spokesman for DFWNORML, an advocacy group promoting marijuana legalization. Some retail operators have removed CBD oil products from their shelves after the legal questions came up, Sloan said.
“Until the feds clean this up we are going to have these disparities in enforcement and treatment,” Sloan said. “These can go from anywhere from completely legal to a felony.”
Typically, people who are first-time offenders and have given no indication that they intended to sell a controlled substance do not go to jail, said Sloan, who added that 90 percent of his practice is marijuana related.
“Tarrant County will prosecute THC and this is happening in a lot of other Texas counties,” he said. “The overwhelming number of people I defend are good people who have never had a problem with the law. A good portion of the people I defend are caught with products they have taken from Colorado which were lawfully purchased and taxed.”
In Colorado, medical and recreational marijuana use is legal.
Tarrant County has not and does not expect to spend significant resources on cases involving CBD oil, according to Sharen Wilson, Tarrant County district attorney.
But Wilson also said that passage of the 2018 Farm Bill in the U.S. Congress which made hemp products that contain less than .03 percent concentration of THC legal under federal law, did not make those products legal in Texas.
“The Texas Legislature additionally is considering bills this session to legalize industrial hemp production and related products in our state,” Wilson said. “The Criminal District Attorney does not have the authority to change the law. We encourage those with strong opinions about CBD oil to contact Commissioner (of Health John) Hellerstedt’s office or your local legislators to inform them of your views. “
Attorneys said the situation will likely become more confusing before it’s settled.
“Every time I start winning the arguments based on facts they pull out the ‘Its the law’ excuse,” Sloan said. “The law, in this regard, is absurd. The absurdity will continue until our lawmakers are intellectually honest.”
Two bills filed during the current legislative session by State Rep. Terry Canales, D-Edinburg, address some of the legal questions surrounding marijuana extracts, according to the Texas Legislature Online website. Canales filed HB 186, which deals with the weight of the illegal marijuana extract, and the other, HB 551, could change the current penalty structure, if adopted.