The Texas hemp ban lawsuit is a Travis County challenge brought by the Texas Hemp Business Council and several hemp companies against Department of State Health Services rules that took effect March 31, 2026, and effectively banned smokable hemp flower, pre-rolls, and concentrates. A trial judge blocked the rules statewide on May 1, 2026, but the 15th Court of Appeals lifted that block on June 5, 2026, allowing the rules to snap back into effect while the case continues. Enforcement is uncertain, and the underlying question — whether DSHS can use rulemaking to ban products the Legislature has not banned — remains undecided.
What the March 31 Rules Actually Do
Two changes drove the lawsuit. First, DSHS adopted a “total delta-9 THC” testing standard that counts THCA at 87.7 percent of its weight as delta-9 THC after decarboxylation. Because natural hemp flower contains THCA levels that push the total above the 0.3 percent legal threshold once that conversion factor is applied, the rule effectively removes smokable hemp flower, pre-rolls, and concentrates from the legal market.1Texas Tribune. Texas Hemp THC Smokeable Flower Joints Regulations Edible hemp products and beverages, which are regulated separately by the Texas Alcoholic Beverage Commission, are not affected.2KUT. Texas Moves to Ban Selling Smokable Cannabis
Second, the rules raised fees sharply. Annual manufacturer licensing rose from $250 to $10,000 per facility, and retail registration jumped from $150 to $5,000 per location. DSHS had originally proposed $25,000 and $20,000, which would have generated an estimated $202 million a year from roughly 9,900 small businesses.3Texas Secretary of State. Proposed Rules, Title 25, Health Services The final numbers were lower but still represented increases of roughly 3,000 percent or more.1Texas Tribune. Texas Hemp THC Smokeable Flower Joints Regulations
The rules also added penalties of up to $10,000 per day per violation, child-resistant packaging and labeling requirements, mandatory testing, detailed record-keeping, and a minimum purchase age of 21.1Texas Tribune. Texas Hemp THC Smokeable Flower Joints Regulations
Who Sued and What They Argue
On April 7, 2026, the Texas Hemp Business Council, the Hemp Industry and Farmers of America, and eight hemp companies filed a 330-page petition in the 455th Judicial District Court of Travis County, case number D-1-GN-26-002511. The defendants are DSHS Commissioner Jennifer Shuford, Health and Human Services Commission Executive Commissioner Stephanie Muth, and Attorney General Ken Paxton.4KUT. Texas Hemp Ban Cannabis Lawsuit
The central allegation is that DSHS and HHSC used administrative rulemaking to accomplish what the Legislature declined to do. Lawmakers passed Senate Bill 3 in 2025 to regulate these products, but Governor Greg Abbott vetoed it on June 22, 2025, calling it legally vulnerable to federal preemption challenges.5Office of the Texas Governor. Governor Abbott Vetoes Senate Bill 3 Rather than wait for new legislation, according to the petition, the agencies embedded the total-THC formula into their testing rules, “replacing in operation” the statutory definition of hemp without formally changing it.6Texas Hemp Business Council. Plaintiffs’ Verified Original Petition and Application for TRO
A key piece of the argument turns on what the Legislature chose to include and exclude. The plaintiffs contend that post-decarboxylation testing was written into the Agriculture Code, which governs hemp cultivation, but was intentionally left out of Chapter 443 of the Health and Safety Code, which governs hemp commerce. By importing that formula into commercial testing rules, they argue, the agencies overrode a deliberate legislative choice.6Texas Hemp Business Council. Plaintiffs’ Verified Original Petition and Application for TRO
The suit seeks a declaratory judgment that the rules exceed agency authority and violate constitutional limits, plus temporary and permanent injunctions blocking the total-THC standard, the fee increases, and the penalty structure.6Texas Hemp Business Council. Plaintiffs’ Verified Original Petition and Application for TRO A separate Travis County suit filed on March 17 by retailer Boomtown Vapor LLC (case D-1-GN-26-002037) makes similar claims and remains active.7Trellis Law. Boomtown Vapor LLC vs Texas Department of State Health Services
The Court Rulings So Far
The legal status of smokable hemp has flipped several times in a matter of weeks.
- April 10, 2026: A Travis County district judge issued a temporary restraining order lifting the ban through May 1, 2026.8Texas Tribune. Texas Hemp Smokeable Ban Joints Lawsuit
- May 1, 2026: Judge Daniella DeSeta Lyttle granted a statewide temporary injunction blocking the total-THC standard, the fee increases, the daily-penalty structure, and new transport restrictions, through the scheduled July 27, 2026, trial. She applied the injunction statewide rather than only to the named plaintiffs, reasoning that partial relief would be unworkable, cause “indivisible injury” across the industry, and spawn duplicate lawsuits.9KUT. Hemp Cannabis Ruling Temporary Injunction Granted
- May 7, 2026: The state appealed. The 15th Court of Appeals initially allowed the ban back into effect, then granted the industry emergency relief that reinstated the injunction pending a May 17 hearing.8Texas Tribune. Texas Hemp Smokeable Ban Joints Lawsuit
- June 5, 2026: The 15th Court of Appeals denied the industry’s emergency request to keep the injunction in place, issuing a two-sentence order that effectively stayed Judge Lyttle’s ruling and let the DSHS rules take effect again.10Houston Public Media. Hemp Cannabis Court Appeals Decision
One point worth noting about the May injunction: even at its broadest, it did not freeze every new regulation. The child-resistant packaging requirements, the minimum purchase age of 21, and other consumer-safety rules stayed in effect throughout.11Houston Public Media. Temporary Injunction Granted
What This Means for Sellers and Buyers Right Now
The DSHS rules are technically in force again. But actual enforcement is unclear. A DSHS spokesperson said the agency is “still determining how to proceed” given that there is no final ruling on the merits.12KUT. Hemp Cannabis Court Appeals Decision The agency has not publicly announced a crackdown, and many retailers are in a wait-and-see posture.
For businesses, the exposure is not theoretical. Violations carry penalties of up to $10,000 per day. Retail registration costs $5,000 per location annually and manufacturer licensing $10,000 per facility. Products failing the total-THC test are, under the rules as written, no longer legal for sale.
The commercial stakes are why the case has moved so fast. Austin Vape and Smoke reported smokable hemp accounted for 43 percent of total sales; La Casa Smoke Shop put it at 50 percent; Dream Planet Smoke and Vape said more than half.13Texas Tribune. Texas Smokeable Hemp Ban Lawsuit Smoke Shop Todd Harris of The Happy Cactus told the Dallas Morning News that the affected products were roughly 70 percent of his revenue, and Candice Stinnett of Emerald City Dispensary estimated her losses at 60 to 70 percent.14Dallas Morning News. Texas to Restrict Smokable THC Hemp Products Starting March 31 Austin Vape and Smoke said it would close a location near the University of Texas campus, and Emerald Organics in Fort Worth furloughed more than half of its staff.
A March 2025 analysis by Whitney Economics pegged the Texas hemp-cannabinoid industry at roughly $5.55 billion in annual revenue, supporting more than 53,000 jobs and over 8,500 businesses. Whitney testified that the new regulations and resulting closures would produce a $7.2 billion negative impact on the state’s economy.15Texas Hemp Business Council. An Economic Impact Analysis of the Hemp Cannabinoid Industry in Texas
What Happens Next
The June 5 appellate order was not a ruling on the merits. It only addressed whether the trial court’s injunction could remain in place while the appeal proceeded. The appeals court has not decided whether the DSHS rules are lawful, and the trial court has not held its trial. A trial in Travis County had been set for July 27, 2026, though that date was described as a placeholder that could shift depending on the pace of the appeal.10Houston Public Media. Hemp Cannabis Court Appeals Decision
The core legal question is still open: can DSHS use administrative rules to effectively prohibit products the Legislature has not banned? That question will be answered either at trial or on further appeal, and it could ultimately reach the Texas Supreme Court.