Blog Post by Attorney Byron Winborne of Waxahachie Ellis County, Texas

Texas has not legalized adult-use marijuana. The State's principal statutory development during the last four years has instead been a 2025 expansion of the Texas Compassionate Use Program for specified patients using low-THC cannabis. At the same time, Texas appellate courts have continued to address the difficult line between unlawful marijuana and legal hemp, including questions of searches based on cannabis odor, proof at trial, municipal non-enforcement ordinances, and delta-8 THC.

This post covers Texas enactments from August 25, 2022 through August 25, 2026, and selected appellate decisions that materially affect the present legal landscape. It is general information, not legal advice.

The legislative bottom line

The review identified one material enacted Texas measure directly changing marijuana/cannabis regulation in this period: House Bill 46 (2025). The Legislature did not enact a general adult-use legalization measure or a general decriminalization measure during this period. A much-discussed 2025 proposal to substantially restrict consumable hemp products, Senate Bill 3, was vetoed and did not become law.

The enacted change: HB 46 expands medical access to low-THC cannabis

House Bill 46, signed June 20, 2025 and effective September 1, 2025, materially expanded Texas Health and Safety Code Chapter 487, the Compassionate Use Program. It did not legalize recreational marijuana or broadly decriminalize possession.

What HB 46 changed

HB 46 broadened access to low-THC cannabis in several ways:

·         More qualifying conditions. The statute now includes, among other conditions, chronic pain, traumatic brain injury, Crohn's disease and other inflammatory bowel disease, terminal illness, and hospice or palliative-care eligibility, in addition to previously qualifying conditions.

·         More dispensing organizations. The Department of Public Safety must license at least 15 dispensing organizations, with statutory milestones for new licenses.

·         Greater geographic access. Dispensing organizations may use authorized satellite locations within public-health regions, subject to the statute and implementing rules.

·         Additional route of administration. The law authorizes pulmonary inhalation of an aerosol or vapor when medically necessary, subject to agency rulemaking.

The practical significance is substantial for qualified patients and licensed providers: Texas broadened a tightly regulated medical program while retaining its general prohibition on ordinary marijuana possession and delivery. The bill history confirms its enactment and September 1, 2025 effective date. HB 46 history

What did not become law: SB 3's proposed hemp overhaul

Senate Bill 3 in the 2025 regular session would have substantially changed the law governing consumable hemp products, including cannabinoid-product restrictions. But the Governor vetoed the measure on June 22, 2025. It therefore is not part of Texas law and should not be described as a current prohibition or compliance requirement.

That distinction matters because the legal treatment of hemp-derived products—particularly products marketed as delta-8 THC—has been shaped more by the existing controlled-substances framework and litigation than by a new 2025 hemp statute.

The appellate decisions to know

1. The Texas Supreme Court upheld Texas's smokable-hemp manufacturing restriction

In Texas Department of State Health Services v. Crown Distributing LLC, 647 S.W.3d 648 (Tex. 2022), the Supreme Court of Texas rejected a due-course-of-law challenge to Texas's prohibition on processing or manufacturing consumable hemp products for smoking. The case confirms a central feature of Texas's post-hemp-legalization regime: legalization of qualifying hemp did not eliminate the Legislature's authority to impose product-specific restrictions.

2. Hemp's similarity to marijuana has not eliminated odor-based probable cause

Texas intermediate appellate courts have repeatedly held that the fact hemp and marijuana may be difficult to distinguish by sight or smell does not, by itself, preclude an officer from relying on the odor of cannabis to support a vehicle search.

·         In Cortez v. State (Tex. App.—Dallas Dec. 20, 2022; 2022 WL 17817963), the court held that an officer's reasonable belief that cannabis odor indicated marijuana could support probable cause, even though hemp may smell the same.

·         In State v. Gonzales, 676 S.W.3d 261 (Tex. App.—Dallas 2023), the court reversed suppression orders and held that the Hemp Farming Act did not displace the established probable-cause rule for odor-based vehicle searches.

·         In Guerra v. State (Tex. App.—Fort Worth Oct. 5, 2023), the court also rejected an effort to rely on the 2019 hemp enactment for a search predating its effective date and upheld the suppression ruling on the record before it.

These are Fourth Amendment/probable-cause decisions, not holdings that laboratory testing is unnecessary to prove every element of a marijuana offense at trial.

3. The State cannot use local ordinances to categorically remove marijuana enforcement tools

In 2025, the Fifteenth Court of Appeals held that state law likely preempts local ordinances barring citations and arrests for low-level marijuana possession.

·         State v. City of San Marcos, 714 S.W.3d 224 (Tex. App.—15th Dist. 2025), concluded that Local Government Code section 370.003 clearly bars a municipal policy that prevents full enforcement of state drug laws. The court directed entry of a temporary injunction against enforcement of San Marcos's ordinance.

·         State v. City of Austin, 714 S.W.3d 247 (Tex. App.—15th Dist. 2025), reached the same result as to Austin's similar ordinance.

The opinions do not require officers or prosecutors to pursue every marijuana case. Rather, they hold that municipalities may not enact categorical policies that take citations or arrests for specified marijuana offenses off the table.

4. At trial, the hemp issue is evidentiary—not automatically dispositive

In Jones v. State, 722 S.W.3d 317 (Tex. App.—Corpus Christi–Edinburg 2025), the court upheld a misdemeanor marijuana-possession conviction without laboratory THC-concentration testing. It held that, on that record, an experienced officer's identification plus circumstantial evidence—including the setting, the cannabis material, and the defendant's conduct and statements—could support a finding that the substance was unlawful marijuana rather than legal hemp.

The court emphasized the fact-specific character of its ruling and noted that proof of weight remains best practice. The decision is not a blanket rule that chemical testing is never useful or necessary.

5. The Texas Supreme Court addressed manufactured delta-8 THC

In Texas Department of State Health Services v. Sky Marketing Corp., 733 S.W.3d 689 (Tex. 2026), the Supreme Court of Texas held that the Department of State Health Services commissioner acted within her statutory authority in maintaining the challenged scheduling treatment of manufactured, potent delta-8 THC products. The Court rejected the argument that the 2019 hemp legislation unmistakably decontrolled all delta-8 THC at any concentration.

The decision draws a key distinction: statutory protection for hemp and naturally occurring trace compounds does not necessarily extend to manufactured products containing potent levels of delta-8 THC. Businesses should not assume that a product's hemp origin alone resolves its status under Texas controlled-substances law.

Takeaways for Texans, businesses, and practitioners

1.       Adult-use marijuana remains illegal in Texas. Neither HB 46 nor any other enacted measure in the period created general recreational legalization.

2.       HB 46 expanded a narrow medical pathway. It widened eligibility, delivery options, and provider capacity under the Compassionate Use Program, but only within that regulated program.

3.       Hemp is not marijuana, but the distinction is concentration- and product-dependent. The legal divide remains tied to statutory definitions and can require forensic, regulatory, and product-specific analysis.

4.       Hemp's legality does not presently bar all odor-based searches. The cited appellate cases preserve probable-cause principles in the vehicle-search setting.

5.       Municipal non-enforcement ordinances face state-law preemption. Austin and San Marcos rulings reinforce the State's ability to challenge categorical local restrictions on marijuana enforcement.

6.       Delta-8 remains a high-risk area.Sky Marketing confirms that Texas agencies retain significant authority over manufactured, high-potency delta-8 THC products.

Conclusion

The most important Texas legislative change from the last four years is not a broad marijuana legalization law. It is HB 46's measured expansion of medical access to low-THC cannabis. The rest of the current landscape has been defined largely by courts applying Texas's existing prohibition and hemp framework: hemp has complicated identification and enforcement, but it has not converted Texas into a recreational-marijuana state.