Texas reinstated Schedule One rules and the outcome of the Sky Marketing case have raised a lot of questions about where THCA stands legally. So we reached out to our friends at Vicente LLP, and they put together the analysis below to help us understand what Texas law says about THCA.
We also want to be very clear that this is not legal advice. This is Vicente’s analysis of what Texas law currently says. This is general information, and does not speak to any particular person’s case and it is best to consult with legal counsel prior to engaging in the sale of THCA products.
Thank you to the team at Vicente LLP, especially Juliana Todeschi and Shawn Hauser for taking the time to break this down for our community.
- Did Hemp-Derived THCA become Schedule I on July 31, 2026?
Short answer: There is a strong argument that it does not, but the issue has not been definitively resolved.
The reinstated schedule facially includes naturally occurring THCA because it covers tetrahydrocannabinols naturally contained in cannabis and expressly excepts only up to 0.3% delta-9 THC in hemp.
Texas Health and Safety Code section 481.002(5), however, separately excludes both “hemp” and “the tetrahydrocannabinols in hemp” from the definition of a controlled substance. Because THCA occurs naturally in hemp, there is a substantial argument that this statutory exclusion controls over the narrower administrative schedule.
The Texas Supreme Court’s decision in Sky Marketing does not definitively answer the question. That case concerned commercially concentrated delta-8 manufactured from CBD. Although the court recognized that THC naturally occurring in hemp was decontrolled by statute, its specific discussion involved only the trace amounts of delta-8 naturally present in the plant. The court did not address THCA, which occurs naturally in much greater concentrations.
Accordingly, naturally occurring THCA in compliant hemp has a meaningful statutory argument against Schedule I treatment, but it should not be described as conclusively exempt. DSHS or law enforcement may interpret the reinstated schedule differently, and the question may ultimately require judicial resolution.
Separately, even assuming THCA is not a Schedule I controlled substance, DSHS’s consumable-hemp rules promulgated in March count THCA toward the 0.3% Total-Delta-9-THC limit. Accordingly, a high-THCA product is prohibited from manufacture or sale under those rules regardless of its controlled-substance status under state law.
- Does the DSHS Total THC Rule litigation change the outcome?
No. The Total THC Rule adopted by DSHS in March governs what a DSHS-licensed manufacturer or registered retailer may lawfully produce and sell, which is a regulatory question rather than a scheduled substance one. The litigation over the DSHS final rules seeks to determine whether the agency exceeded its statutory authority in setting a Total THC standard (inclusive of THCA), among other things, absent a statutory directive.
Criminal liability runs through Chapter 481, and its hemp exclusions (specifically, sections 481.002(5), (26)(F)) point to Agriculture Code section 121.001, which defines hemp by a Delta-9 THC concentration of not more than 0.3 percent on a dry weight basis, with no requirement to include THCA in this calculation. As mentioned above, the DSHS rules cannot supersede what is written in statute pertaining to controlled substances. Accordingly, for criminal liability purposes, the standard remains 0.3% Delta-9 THC by dry weight. The legislature would need to amend the statute to include THCA for the purposes of the state’s CSA and applicable criminal liability.
Notably, however, the DSHS rules establish a separate penalty structure for the consumable hemp program and employ both a Total THC and Total Delta-9 THC standard, so while criminal penalties under the state CSA do not apply at this time, there are other penalties that may apply to noncompliant products.
- So, what governs a THCA possession case?
Section 121.001 supplies the governing statutory hemp threshold, but Texas law is unsettled on whether THCA must be included through a post-decarboxylation or “Total Delta-9 THC” calculation in a criminal possession case.
Here’s how the legality of THCA products breaks down (both prior to and after the reinstated 2021 schedules):
- Any amount of synthetic THCA is illegal: THCA is included in Penalty Group 2 of the Texas Health & Safety Code, per section 481.103(a)(1). This has been the case for a long time, irrespective of the 2021 schedule change and the ensuing litigation. The scheduling change did not affect the penalty groups, and Penalty Group 2 expressly lists “synthetic equivalents of the substances in the [marijuana] plant” and “synthetic substances . . . with similar chemical structure and pharmacological activity[.]”
- Naturally occurring hemp-derived THCA in material that qualifies as “hemp” is excluded from the state CSA: Sections 481.002(5) and 481.002(26)(F) exclude “hemp” and the “tetrahydrocannabinols in hemp” from the definitions of “controlled substance” and “marihuana.” Accordingly, possession of naturally occurring THCA in material satisfying the statutory definition of hemp has a strong basis for falling outside the state CSA. Texas law remains unsettled, however, on whether THCA must be included through a post-decarboxylation or “Total Delta-9 THC” calculation when determining whether the material meets the 0.3% threshold. Accordingly, a product cannot be deemed lawful based solely on its measured Delta-9 THC concentration.
That said, products that originally tested below the 0.3% threshold may come to exceed it depending on the THCA levels in the products. This is because THCA degrades into Delta-9 THC over time. Accordingly, products where the THCA degrades into Delta-9 THC can create criminal liability for consumers found in possession of them. For products containing any amount of naturally occurring THCA that exceed 0.3% Delta-9 THC are de facto classified as marijuana under Texas law. Two ounces or less is a Class B misdemeanor; more than two but not more than four ounces is a Class A; more than four ounces becomes a felony.
Extracts and concentrates require a separate analysis. Form alone is not dispositive: “hemp” is defined to include extracts, cannabinoids, isomers, and acids, so an extract is not a controlled substance merely because it has been extracted from the cannabis plant. Rather, the threshold question is whether the material still satisfies the “hemp” definition. If it does, the statutory hemp exclusions remove it from state CSA control. If it does not, the material nevertheless falls outside the state’s marijuana penalty scheme, as extracted resin and preparation of that resin are excluded from the definition of “marihuana,” and the material instead falls within Penalty Group 2 for being “tetrahydrocannabinols, other than marihuana, and synthetic equivalents.” Possession of less than one gram of a Penalty Group 2 substance is a state jail felony under sections 481.116.
To succeed on a criminal possession case, the State must prove the concentration exceeded legal limits , but Texas appellate courts have not uniformly required quantitative laboratory testing. Extracts and “tetrahydrocannabinols, other than marihuana,” have sat in Penalty Group 2 for decades, so the July 31 scheduling reinstatement creates no new offense—what it restores is DSHS’s civil and licensing enforcement footing. Importantly, the only time a scheduling decision creates a new penalty is when a newly controlled substance is not listed in the penalty groups, which is not the case here.
- Practical reality for individuals
- Reinstated schedules may nevertheless result in an increase in law enforcement activity against those found to be in possession of a product containing THCA.
- Generally, law enforcement cannot determine whether a product’s THCA occurred naturally, was produced synthetically, or was extracted from hemp, based on its appearance, odor, packaging, or routine roadside testing. Determining the product’s cannabinoid composition and origin may require more sophisticated laboratory analysis and supporting supply-chain evidence.
- Keeping original packaging and all source documentation, including the batch certificate of analysis, may help establish that the product was sold as hemp and document its reported cannabinoid profile.
- A consumer in possession of a product containing naturally derived THCA may nevertheless be arrested and subjected to employment and other repercussions, even if the charge ultimately fails in court.
- Beginning November 12, 2026, absent further legislative intervention, federal law will measure hemp using a Total THC standard, expressly including THCA, and will exclude final hemp-derived cannabinoid products containing more than 0.4 milligrams of Total THC per container. High-THCA products that no longer satisfy the federal definition of hemp will therefore lose the protection they have enjoyed under the 2018 Farm Bill’s protection against state interference with interstate transportation.