Most states in the U.S. now allow, to some extent, the sale, possession, and use of marijuana for various purposes. Several states, beginning with Colorado, have effectively legalized recreational use of marijuana in small amounts. Many of these states, however, only allow the use of specific marijuana-derived products for specific medical uses, under a doctor’s supervision. Texas is among the states that have only slightly eased restrictions on marijuana. Even the minor recent changes to state law, however, have resulted in significantly different priorities between the federal and Texas criminal justice systems. Marijuana remains a highly controlled substance under federal law, but since 2014, Congress has barred federal law enforcement from interfering with state medical marijuana programs. The U.S. Department of Justice (DOJ) has recently lobbied Congress to repeal this provision, but a Senate committee approved renewing it this summer. Shortly afterwards, Texas issued the first license under this state’s medical marijuana law.
Marijuana is a Schedule I controlled substance under federal law, meaning that Congress has deemed it to have “no currently accepted medical use.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). Texas also continues to treat marijuana as a strictly controlled substance in most circumstances, but in 2015, the Texas Legislature enacted the Texas Compassionate-Use Act (TCUA). This law allows the use of “low-THC cannabis” for the treatment of intractable epilepsy, defined as a “seizure disorder” that has persisted after the patient has tried “two or more appropriately chosen and maximally titrated antiepileptic drugs.” Tex. Occ. Code §§ 169.001(2), (3). The TCUA establishes standards for the licensing of “dispensing organizations” and registration of individuals involved in producing, distributing, prescribing, and using low-THC cannabis. See Tex. Health & Safety Code § 487.001 et seq.
Despite the many layers of administrative procedures put in place by the TCUA, it still violates federal law, at least in a technical sense. Federal law enforcement officials, from the President and the Attorney General (AG) down to individual DEA agents, have taken a wide range of views on whether federal law should supersede state medical marijuana programs. The view of the current AG appears to be that federal drug enforcement efforts take precedence, but Congress has generally disagreed.