What changed with THC in Texas, and what did not

If you buy a gummy at a smoke shop in Houston, the legal answer to whether that was a crime is different today than it was eighteen months ago. The confusing part is that the marijuana statute itself has not changed at all.

What did not change

Possession of marijuana is still governed by Texas Health and Safety Code § 481.121, and the penalty ladder is the same one it has been for years. Two ounces or less is a Class B misdemeanor, more than two up to four ounces is a Class A, and above four ounces it becomes a felony that climbs from there.

The 89th Legislature did not touch any of that in 2025.

What did change, and why it catches people

Hemp has never been marijuana in Texas, since it is written out of the definition: § 481.002(26) excludes hemp, and hemp is defined in Agriculture Code § 121.001 as cannabis with no more than 0.3 percent delta-9 THC by dry weight. That definitional gap is what created the delta-8 industry, because delta-8 is not delta-9.

That gap is now closed. In Texas Department of State Health Services v. Sky Marketing Corp., decided May 1, 2026, the Supreme Court of Texas held that the Health Commissioner lawfully added the broader THC definitions to Schedule I back in 2021 and that the 2019 Texas hemp law did not prevent it. Those definitions were reinstated by notice effective July 31, 2026.

The practical consequence is large and most people have not caught up to it. Delta-8, delta-10 and the other non-delta-9 isomers are now Schedule I controlled substances in Texas, which does not put them on the marijuana penalty ladder. It puts them in a penalty group, where the exposure is measured in grams and starts at felony.

So a product that was sitting openly on a shelf last year can be a felony-level substance this year. Buying it from a licensed store does not change that. Neither does the label.

The rules around the stores changed too

The Legislature tried to ban consumable THC products outright in 2025 with Senate Bill 3, which passed both chambers before the Governor vetoed it on June 22, 2025, saying the ban would be tied up in constitutional litigation. Two later attempts in special sessions died.

So the regulation came by executive order and rule instead. Executive Order GA-56, issued September 10, 2025, directed the health and alcohol agencies to act, and the permanent rules took effect March 31, 2026: nobody under 21, mandatory testing before sale, child-resistant packaging, sharply higher license fees, and a total-THC standard that counts THCA rather than delta-9 alone.

That last one is why smokable hemp flower is in trouble, though it is also still being litigated.

Harris County

Misdemeanor marijuana arrests in Houston have risen sharply. Police department figures reported in September 2026 show roughly 405 arrests in the first eight months of 2026 against 29 in the same period of 2025. Harris County prosecuted more than a thousand misdemeanor marijuana cases in 2025, and the large majority were dismissed.

At the same time the District Attorney told law enforcement in May 2026 that the office would not accept charges for THC vape pens, because local laboratories cannot measure concentrations in the range between 0.3 and 1 percent, which is exactly the range that separates legal hemp from marijuana. Nor can they tell whether the THC came from hemp, marijuana or a laboratory.

And the county’s misdemeanor marijuana diversion program has not been abolished.

So whether a given arrest becomes a conviction depends heavily on which agency made it, what the substance was, and whether anyone can test it.

What this means

Being arrested is not the same as being chargeable. The State has to prove the substance was marijuana and not hemp, and in a lot of misdemeanor cases the laboratory work to do that was never done.