Texas THC Ban Lawsuit: Injunction, Reversal, and Appeal

The Texas THC ban lawsuit, filed in Travis County in April 2026 as Texas Hemp Business Council v. Texas Department of State Health Services, challenges state rules that would effectively outlaw smokable hemp by changing how THC is measured. A trial judge blocked the rules statewide on May 1, 2026, but the Texas 15th Court of Appeals lifted that block on June 5, 2026. The rules are technically back in force while the appeal and the underlying case continue, and enforcement is unsettled.

Who Sued and What They Are Arguing

The Texas Hemp Business Council, Hemp Industry and Farmers of America, and eight hemp companies filed suit on April 7, 2026, in Travis County’s 455th Judicial District Court.{¹} The defendants are the Texas Department of State Health Services (DSHS), DSHS Commissioner Jennifer Shuford, the Texas Health and Human Services Commission, HHSC Executive Commissioner Stephanie Muth, and Attorney General Ken Paxton.{²}

The plaintiffs’ core argument is that DSHS rewrote the definition of legal hemp that the Texas Legislature set in 2019, substituting a “total THC” formula the legislature itself declined to adopt when Senate Bill 3 failed in 2025. Relying on the Texas Administrative Procedure Act and separation-of-powers principles, the petition argues that “an administrative agency may not substitute its own policy judgment for the outcome produced by the constitutional lawmaking process.”{³} The suit also challenges the rules’ transport restrictions as an interference with lawful interstate commerce and the daily-penalty structure as undermining statutory notice-and-cure protections.{⁴}

Plaintiffs did not challenge every part of the rules. The 21-and-older purchase age, child-resistant packaging, and labeling requirements were left in place, and those consumer-safety provisions remain in effect regardless of how the litigation ends.{²}

What the DSHS Rules Actually Do

DSHS published the final rules in the March 20, 2026, Texas Register, with a March 31, 2026, effective date.{⁵} The centerpiece is a new testing formula for consumable hemp: instead of measuring only delta-9 THC, labs must calculate “total delta-9 THC” as (THCA × 0.877) + delta-9 THC. Because raw hemp flower typically contains substantial THCA, that formula pushes most smokable products over the 0.3 percent legal ceiling and effectively bans their sale.{⁶}

THCA itself is not psychoactive, but heat converts it into delta-9 THC when a product is smoked or vaped. Under the 2019 delta-9-only standard from House Bill 1325, high-THCA flower passed as legal hemp; under the new formula, it does not.{⁷}{⁶}

The rules also raise retail registration fees from $150 to $5,000 per location and manufacturer licensing fees from $250 to $10,000 per facility, bar the transport of hemp plants and materials into Texas for processing, and allow each day of a violation to count as a separate offense.{⁸}{⁴} A separate state law in effect since September 2025 makes it a Class A misdemeanor to sell vape products containing any cannabinoids.{⁶}

The Rulings So Far

Temporary Restraining Order, April 10, 2026

Three days after the suit was filed, Travis County Judge Maya Guerra Gamble issued a temporary restraining order. It blocked DSHS from enforcing the total-THC testing formula and the interstate transport restrictions, but it did not block the higher licensing fees. The judge found the plaintiffs had a “probable right to relief,” signaling that the rules likely exceeded the agency’s delegated authority.{⁹}{⁴}

Statewide Temporary Injunction, May 1, 2026

After a three-day hearing, Judge Daniella DeSeta Lyttle granted a broader temporary injunction. This order blocked the total-THC standard, the transport restrictions, the fee increases, and the daily-penalty structure, and it applied statewide to the entire consumable hemp industry rather than only the named plaintiffs. The judge reasoned that a narrower order would be “impossible” to provide complete relief and would lead to a “multiplicity of suits.” A trial on the merits was set for July 27, 2026.{⁸}{¹⁰}

Appellate Reversal, June 5, 2026

The state appealed to the Texas 15th Court of Appeals, which denied the industry’s emergency motion to keep the injunction in place. The order was a single sentence, with no written reasoning about the legality of the rules, and one justice dissented. The effect was to lift the injunction and let the DSHS rules take effect again.{¹¹}{¹²}

Where Things Stand for Buyers and Sellers

As of mid-June 2026, the DSHS regulations, including the total-THC testing standard and the higher fees, are technically back in force. Enforcement is another matter. A DSHS spokesperson said the agency is “still determining how to proceed given that there is not a final disposition yet.”{¹¹}

Two tracks are running in parallel: the state’s appeal of the temporary injunction sits with the 15th Court of Appeals, and the Travis County trial court still holds the merits of the case. The July 27, 2026, trial date was described in reporting as of June 10 as “more of a placeholder” that may shift with the appellate proceedings.{¹¹}{¹³}

The consumer-safety pieces the plaintiffs never challenged remain in effect throughout. That includes the 21-and-older minimum purchase age, child-resistant packaging, labeling standards, and required testing for contaminants.{⁵} Federal law is also moving: starting November 12, 2026, Section 781 of H.R. 5371 will redefine “hemp” nationwide to exclude products with “intoxicating levels of THC,” measured by total THC rather than delta-9 alone.{¹⁴}

A Supreme Court Decision That Could Shape the Appeal

On the same day as the May 1 injunction, the Texas Supreme Court decided Texas Department of State Health Services v. Sky Marketing Corp. (No. 23-0887), a separate case about DSHS’s 2021 attempt to classify manufactured delta-8 THC as a Schedule I controlled substance. The court reversed the lower courts, dissolved an injunction that had kept delta-8 products on shelves, and held that the DSHS commissioner acted within her statutory authority under the Texas Controlled Substances Act.{¹⁵}{¹⁶}

Justice Evan Young wrote: “The legislature clearly defined ‘hemp’ to encompass the plant itself and the compounds as found in the plant… The legislature gave that inch, but the vendors claim a mile — that the legislature exempted all THC, even in non-naturally-occurring ways. We reject that contention.”{¹⁷} Sky Marketing concerned synthetically produced delta-8, not natural smokable hemp flower, so its holding does not directly resolve the current dispute. But it read the legislature’s grant to the industry narrowly and the agency’s discretion broadly, and both sides expect it to influence how the 15th Court of Appeals, and eventually the Texas Supreme Court, treat the DSHS rules.

How Texas Got to This Point

The 2019 Texas Hemp Farming Act (HB 1325) defined “hemp” as cannabis with no more than 0.3 percent delta-9 THC on a dry weight basis and excluded hemp and its cannabinoids from the state’s controlled-substance schedules.{⁷} That delta-9-only measurement created the opening for high-THCA products to be sold legally.

In 2025, the legislature tried to close it. Senate Bill 3, authored by Senator Perry, would have banned virtually all consumable hemp products; the House rewrote it as a regulation-and-taxation framework; Governor Greg Abbott vetoed the final version on June 22, 2025, saying it would be “enjoined for years” over potential conflicts with the federal Farm Bill.{¹⁸}{¹⁹}{²⁰}

With SB 3 dead, Abbott issued Executive Order GA-56 on September 10, 2025, directing DSHS, the Texas Alcoholic Beverage Commission, and the Department of Public Safety to write rules prohibiting sales to minors, requiring age verification, tightening testing and labeling, and raising licensing fees to fund enforcement.{²¹}{²²} DSHS’s rules followed in March 2026, and the lawsuit followed those. The question the courts are now being asked to answer is whether the agency had the power to draw a line the legislature had considered and chosen not to draw.

1
KBTX. Texas Cannabis Businesses Sue State to Block Smokeable Hemp Ban
2
Texas Hemp Business Council. Original Petition and Application for TRO and Injunction
3
Texas Tribune. Texas Hemp Smokeable Ban Joints Lawsuit
4
Cannabis Business Times. THCA Flower Sales Resume in Texas After Judge Grants TRO
5
Texas Secretary of State. Adopted Rules — Health Services
6
Texas State Law Library. Cannabis: Hemp Products
7
Texas Legislature. HB 1325, 86th Legislature
8
KUT. Austin TX Hemp Cannabis Ruling — Temporary Injunction Granted
9
KSLA. Texas Smokeable Hemp Ban Temporarily Blocked by Judge
10
Texas Hemp Business Council. Order Granting Temporary Injunction
11
Houston Public Media. Austin TX Hemp Cannabis Marijuana Court Appeals Decision
12
Off the Kuff. Texas Hemp Industry Court Ruling
13
The Haze Connect. Texas THCA Ban June 5, 2026
14
Arnold & Porter. Major Changes to Federal Regulation of Hemp-Derived Products
15
Supreme Court of Texas. Texas Dept. of State Health Services v. Sky Marketing Corp., No. 23-0887
16
FindLaw. Texas Dept. of State Health Services v. Sky Marketing Corp.
17
KUT. Texas Delta-8 Ban May Have Hurt Hemp Businesses, but Enforcement Freeze Must End, Justices Say
18
Texas Legislature. SB 3, 89th Legislature — Bill History
19
Office of the Governor. Governor Abbott Vetoes Senate Bill 3
20
Houston Public Media. Gov. Abbott Vetoes Texas THC Ban, Calls Special Session to Regulate Hemp
21
Office of the Governor. Governor Abbott Issues Executive Order to Protect Children From Hemp Products
22
Texas Secretary of State. Executive Order GA-56