U.S. Senate Committee Retains Federal Ban on Interference with State Medical Marijuana Programs, as Texas Issues First Medical Marijuana License

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.

The Rohrbacher-Farr Amendment, first enacted in 2014, bars federal law enforcement expenditures that interfere with states’ implementation of medical marijuana programs. A federal appellate court, citing this provision, dismissed multiple indictments last year against individuals who were in compliance with state medical marijuana laws. United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). In July 2017, the Senate Appropriations Committee approved a budget bill that retains the amendment’s language. See S. Rept. 115-139 § 538 (Jul. 27, 2017).

Several weeks after the Senate committee voted to extend Rohrbacher-Farr, the Texas Department of Public Safety issued the first license to produce and distribute low-THC cannabis under the TCUA. The licensee is a Florida-based company that will operate a facility in Schulenberg, between Austin and Houston. The department has stated that it intends to issue two more licenses for facilities in the Austin area.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown is a board-certified drug crime attorney who has defended people against alleged state and federal charges in West Texas courts since 1992. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with an experienced and knowledgeable advocate for criminal justice.

More Blog Posts:

Law Enforcement Tactic Originally Authorized for Anti-Terror Operations Reportedly Being Used in Drug Enforcement Instead, Texas Criminal Lawyer Blog, June 25, 2017

Texas County Establishes Diversion Program for All Misdemeanor Marijuana Offenses, Texas Criminal Lawyer Blog, May 30, 2017

Federal Law Enforcement, Courts Consider Legality of Ayahuasca and Related Products, Texas Criminal Lawyer Blog, May 25, 2017


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