Gas stations and smoke shops across Galveston sell delta-8 gummies, delta-10 vapes, and "THCA flower" openly. Customers assume that means they are legal. Brian Foley explains in this video why the answer is more complicated than the storefront suggests.
What the statute says
Texas Health & Safety Code § 481.103 places in Penalty Group 2 "tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant." It does not list delta-8, delta-10, or THCA by name — it does not have to. Delta-8 and delta-10 are tetrahydrocannabinols. THCA is the acid precursor that converts to delta-9 THC when heated (which is exactly what smoking or vaping does).
The hemp carve-out and the fight over it
The 2019 hemp law removed hemp — and, by its definition, hemp-derived cannabinoids with delta-9 THC at or below 0.3% — from the definition of a controlled substance. Delta-8 sellers argue their products fall inside that carve-out. The Department of State Health Services took the position that delta-8 remains a Schedule I substance; litigation over that rule has gone back and forth in the Texas courts for years, and the Legislature has repeatedly considered — and in 2025 passed and then saw vetoed — an outright ban on consumable THC products. The legal status is, in a word, unsettled.
How Galveston County charges it
Unsettled law does not stop arrests. A vape or edible seized in a traffic stop is sent to a lab. If the lab reports "THC" — and many labs report total THC after conversion, without distinguishing delta-8 from delta-9 or THCA from THC — the charge is possession of a controlled substance, Penalty Group 2, a state jail felony for any usable amount under one gram.
The defenses
Ambiguity is the defense. The State must prove the substance is one the statute prohibits, and a lab that cannot say which cannabinoid it found, or cannot say whether the delta-9 content exceeded 0.3% before heating, has not proven that. Add the knowledge element — you bought it legally, labeled as hemp — and the search issues that begin every vape case, and these prosecutions are far weaker than the felony label implies.
See our controlled substances page, or call or text (409) 877-4909 for a free consultation.