### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00571

- CV

Texas Department of State Health Services, and Dr. Jennifer A. Shuford , in h er Official Capacity as Commissioner of th e Texas D epartme nt of S tate H ealth S ervices , Appellant s

v. Sky Marketing Corp., d/b/a Hometown Hero; Cr eat e A Cig Temple, LLC; Darrell Surif; and David Walden , Appellee s

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -21-006174, THE HONORABL E JAN SOIFER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The Texas Depart ment of State Healt h S er vices (the Department) an d
Dr. Jennifer A. Schuford, in her official capacity as the De partment ’s commissioner (the
Co mmissioner) , 1 appe al from t h e trial court ’ s orders denying their plea to the jurisdiction an d granting a temporary injunction enjoining “ the effective ness going forward of amendme nts to the

te rms ‘tetrahydrocannabinols’ and ‘ Marihuana extract ’” in the Department ’ s 2021 Schedule of
Controlled Substances and the Department ’ s “ ru le stated on [its] web site that Delta

- 8 THC i n any concentration is consider ed a Schedule I contr olled substance.” For t he foll owi ng reasons ,

we affirm t he trial court ’ s order s den ying appellants ’ plea to the jurisdiction and gra nting a temporary injunction.

1 We have substit uted Dr. Jennifer A. Schuford for Dr. John Hellerstedt. See Tex. R. App. P. 7.2(a) ( automatically su bstit uting public official ’ s succ essor as party when publi c official is party in offic ial capacity and cease s to hold office during pendency of appe al ).2 BACKG ROUND
T he Tex as Controlled Subst a nce Act We begin with a brief overview of the commissioner ’ s role concerning the
schedules of controlled substances under the Texas Cont r olled Substan c es Act ( T C SA)

. See Tex. He alth & Safety Code §§ 481.001

– .354

. The legisl a tu re des ign at e d subs tan c es in
Schedu les I through V as controlled substances and delegate d the d uty of es tab lishing , modifying, and publishing the schedule s to the c ommis sioner

. See id. §§ 4 81.032 ( containing
most current version of schedules of controll e d substa nces ) , .034 ( address ing establishment and
modification of sc h edules of controll ed substances by commissioner ) , .036 (requiring commissioner to p ublish sc h edules) ; see also TCSA, 63rd Leg., R.S., ch . 429, § § 2.03

– .05 , 197 3 Tex. Gen. Laws 1132, 1135

– 41 (l ist ing controlled substances that legis lat ure initi ally included i n
schedules )

. The term “ co n trolled substance ” includes “ a drug , an adulterant, an d a dilutant , li sted in Schedules I t h rough V ” and “ the aggregate weight of any mixture, solution, or o th er
sub stance cont aining a contr o l led s ubstance.” Tex. Health & Safety Code § 481 .00 2(5 )

. The c ommissioner is statutorily requ ired to “ annually establish the schedules of
controlled sub stances

. ” See id. § 481 .034 (a)

. The schedules mu s t includ e the “com plete li s t of
all controlled substanc es from the pr evious schedules and modifications in t he federal sched ules of controlled substances as required by Subsection (g)

. ” Id. ; see also 21 U .S.C. § § 8 11 (addressing authority and criteria for classificati o n of subst ances ), 8 12 ( providing schedules of controlled substances)

. Generally, “ if a substance is designated, rescheduled, or deleted as a
controlled substance under federal law ” and noti c e is prov ide d , “ the c ommission er similarly shall
control t he sub s t anc e unde r [the TCSA]. ” Tex. Health & Safety Code § 481.034(g) ; s ee also ,
e.g. , 40 Tex. Reg. 8050 (20 15) (amending schedules of controll ed substances to r emove3 s ubstance that administrator o f Drug En for cement Administration (DEA ) removed from federal
sch e d ul es ) ; 3 8 Tex. Re g. 4928 (2013) (amending sched ules to include several substances temporarily sche d ul ed by DEA administrator ); 30 Tex. Re g. 2934 (2005) ( providing notice of
amendm ent to s chedules to add substance following federal legislation )

. The c o m m i ssi oner , however, may object when a s ubstance is “ designated, reschedule d, or de l e ted as a controlle d

s ubstance under federal law ” by timely publ ishing “ the reasons for the objection , ” “ g i v [ing] all interested parties an o p p ortunity to be heard , ” and , a f t er t he hea ring, “ publish [ing] a dec isi on , which is final unless altered by statute

. ” Tex. He alth & Safet y Code § 481.034(g)

. In addition to modifying th e schedules of controlled substa n ces to conform with
the federal schedules, t he c ommissioner also ha s ind e pende nt authority t o add, delete, or
reschedule a su bsta nce on the schedules

. See id. § 481.034 (a)

. In this context, the commissioner
must make s uch modificat i ons in acc ordance with section 481.035 , “ in a manner consist e nt w ith this subchapte r, ” an d “ wi t h app rova l from the exec ut ive commissioner. ” Id

. ; see also
id

. § § 481. 002(55) ( “ ‘ E xecutive commissioner ’ means the execut ive commissioner of the Hea lth
and Human Se r vices Commission

. ” ) , . 035 ( addressin g r equired findings for c omm i ssion er to pla ce su bstan ce in particul ar schedule). 2 Prior to making a modification to a schedule in this
context, t he c o m missioner must consider eight factors and make findings as to those factors

. Id. § 481.034 (d) , (e )

. “ I f the c ommissioner f inds the substanc e has a pot entia l f or abuse , the
executive commis si oner shall adopt a rule controlling the substance. ” Id. § 481.034 (e) ; see
id. § 481.001 (55)

.

2 For example, t o pla ce a substance o n Schedule I, the c om missioner m us t find that the substance “ h as a high potent i al fo r abuse ” an d “ has no accepted medical use in treatment in t h e United States or l acks accepted safety for use in treatment under m edical supervisio n. ” Tex. Health & Safety C ode § 48 1.035(a).4 Legalization of H emp
Ca nnabidio l (CBD) a nd tetrahydrocannabinol ( THC ) are c ompound s in cann abis

p lants , and T HC crea tes the f eeli ng of intoxication

. 2 5 Tex. Ad min. Code § 300.101 (6), ( 33 ) (2020) (Dept. of St. Health. Servs., Definitions) (defining CBD and THC). THC exists in the
form of isom e r s , including del t a - 9 THC and del ta

- 8 THC

. Delta

- 9 TH C is t he “p r imary psych oactive c ompone nt of ca nnabis.” Id. § 300.101 (10) ; see id. (stating that for purposes of chapter, “ terms del ta

- 9 tetrahydrocannabinol and T HC are interchangeable ” )

. In 201 8, f ederal legisla tion excluded “ hemp ” from mari h uana in the federal
schedules o f controlle d subs tances and auth orized state s to create their own plans to regulate the hemp in du stry

. See generally Agricul ture Impro v e men t Act of 201 8, Pub. L. No. 115

- 334 , 132
Stat. 44 90 (2018) ( 2018 Farm Bill )

. Hemp is defin e d under f e deral law as “ t he plant Ca nnabis
sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts,

cann abinoids, i somers, acids, salts, and salts of isomers, w h eth er growing or not, with a delta

- 9 tetrahydrocannabinol concen t rati on of not m ore than 0. 3 perc ent on a dr y weight basis

. ”
7 U

. S

. C

. § 1639o

. The federal legislation modified t he term “ tetrahydrocannabi nol s ” to not
include “ tetrahydrocannabi nol s in hem p (as defined under section 297A of the Agr icultural
Marketi ng Ac t of 1946 [7 U.S .C. § 1639o ]

. ” S e e 21 U.S.C. § 8 12(c) (17)

. T h us , the 2018 Farm
Bill limited the control of “ tetrahydrocannabi nol s in hemp ” to “ any such mater ial tha t contains greater than 0

. 3% o f [ del ta

- 9 THC ] by dry weight. ” See 8 5 Fed. Reg. 51639 , 516 41 (202 0) (addre ssing ch ang e in d efinition of THC under 2018 Fa rm Bill)

. The 2018 Farm Bill “ [ did ] not5 impact the contro l s tatus of s ynthetically derived [ THC ]

. ” “ A ll synthetically derived [ T HC s ]
remain schedule 1 controlled substances. ” 3 See id.

In 2019, the Texas L egislatu re le gali zed he mp and hemp

- de rived pr oducts

. See

genera lly Act of May 15, 2019, 86 th Leg., R.S., ch

. 764 , § 7, 2019 Tex. Gen. Laws 2085 , 2099 ;
see also Tex. Health & Safety Co d e § § 443.204( 1 ) ( stat ing th at “hemp

- derived cannab i noids , inc ludin g cannabid iol [CBD ] , a re not considered con trolled subs tances or adulterants ” ) , 481.002(5) ( defining ter m “ controlle d substance ” as not includ ing “ he mp , a s defined by Section 121.001, Ag r icul tural Code ) , ( 2 6) ( defining term “ mari hua na ” as not inc lud in g “ h emp, as t ha t

term is d e fined by Section 121.001, Agriculture C ode ” )

. The Tex as L egi sla ture ’ s def i n ition of hemp mirror s the f ederal de finition: “the p l ant Ca nnabis sativa L. an d any par t of that plant, including the seeds of the plant and all der ivati ves, extracts, cannab inoid s, isomers, acids, salts,
and sa lts of i somers, whethe r growing or not, with a delta

- 9 tetrahydrocannabino l concentration
of no t m ore th an 0.3 percent on a dry weig h t basis.” See Tex. Agric. Code § 121.001 ; see also
2 5 Tex. Admin . Code § 300.10 1 ( 1 ) ( defin ing “ acceptable hemp THC le vel ” as “ delta

- 9

tetra hydrocannabinol content concentration level on a dry weight basis, that, when reported with
the accredited laborato r y ’ s measurement of uncertainty, produces a distribution or r ange that
includes a resul t of 0.3 percent or less ” )

. Prior to t h e 2019 legislation , the Department ’ s sc hedules designated THC naturally contained in the ca nna bis pla nt as well as synthetic e q uivalents , marihua na, and

3 The parties dispute whether del ta

- 8 THC is synthetic , and th e D epartm ent and the C o mmissioner repres ent that it is “ comm on knowledge that delt a - 8 is only s old in sy nthetic form ” and ask this Court t o take j udicial notice of “ that common knowledge. ” We d ecline to take judicial notice and expressl y do not resolve th e p arties ’ dispute as to whether del ta

- 8 THC i s synthetic beca use it is unn ecessary to the disposition of this appeal c oncerning th e trial court ’ s jurisdiction and tempo rary injunct ive relief

. See Tex. R. App. P. 47.1.6 m arihua na extract as Sc hedule I c ontro lled substances

. See 42 Tex. Reg. 1271 (2017) ; see also 81 Fed. Reg. 90194 ( 201 7)

. Con forming to th e federal and state legislation , t he Commi ssion er ’ s
201 9 S chedule of C on trolled S ubstances refl ect ed that hemp an d THC der ived from h emp as
def ined b y fede ral law w ere no t S ch e dule I c ontrolled substance s :
*(2 3 ) Marihuana
Th e term marihuana d oe s not include hemp, as defined in s ection 297A of the Agr icultural Marketing A ct of 1946.

. . . *(31 ) T etrahydrocann abinols;

m eaning t etrahydrocannabinols natura lly co ntained in a pl ant of the gen us Cannabis ( cannabis pla nt) , except for tetrahydrocannabi nol s in hemp ( as defin ed under s ection 297A of the Agr icultural Marke ting Act of 1946 ), as well as synth e tic equivalents of the subst anc es co ntained in the cannabi s plan t , or in the
re sinous extract ives of such plant , and/ or synthetic sub stances, derivative s, and their isomers w ith similar chemical structure and pharmacolog ical activit y to th ose substances c o ntained in the plant , s uch as th e follow ing

. . . .

See 44 Tex. Reg. 2517 (2019 ) ( p ro viding 2 019 versi on of schedules of controlled s ubstances )

. Following the U nited States Department of Agriculture ’ s ( USDA) approval o f a

state plan for he mp production , the executive commissioner of the D epartment of Health and
Human Services ado pt ed rules and p ro cedures related to the manufa cture, di stribution , and sale
of consumable hemp products

. See 25 Tex . Admin. Code §§ 300.100

– . 606 (2020) (Dep ’ t of
St

. Health S ervs., Ma n ufacture, Distribution, and Retail Sale of Consumable He mp Produ cts) ;

se e also Tex. He alth & Sa fety C ode § 443.051 ( requiring exec u tive comm issioner to ad opt rules and proc edures necessary to administer and enforc e C hapter 443, which con cern s manufacture , distri bution, and sale of consumable he mp products ) ; Tex as Dep ’ t of St

. Health Servs. v. Crown
Distrib. LLC , No. 03

- 20

- 00463

- CV, 2021 Tex. App. LEXIS 6283, at * 1

– 2 (Tex. A pp.

— Au stin7 Aug . 5, 202 1, no pet.) (mem. op .) ( considering rule adopted under C hapter 443)

. Product ion and
the sa le of c onsumable h emp pr od ucts in Te xas foll owed

. 4

Commi ss ioner ’ s Objection to the DEA ’ s Interim Final Rule
In Septembe r 2020, the C o mmissio ner publi she d an objection to the DEA ’ s
I nt e r im F inal R ul e (IFR) “ amending the regu l atory controls o ver marihuana, tetrahydrocannabinols, and o ther marihuan a - related cons ti tuents in the Controlled Substances
Act

. ” 45 Tex. Reg. 6613 (2020) ; see ge nerally 8 5 Fed. Reg. 51639 (2020)

. The I FR ’ s stated

purpose was to codi fy in the DE A ’ s regu l ations the statutory amendments to the federal

cont rol led substa nces act that were made by th e 2018 Farm Bill “ regarding the s cope of regulatory controls o ver m arihua na, tetrahydrocannabinols, and other marihuana

- re lated

con s t ituent s ” and confo rm the DEA ’ s regulations to the statutory amendments that had “ a lr eady
taken effect. ” 8 5 Fed. Reg. at 51 639

. The IFR “ [ did ] not add additional requirements to the regulations ” and “ did no m ore than inc orporate the statutory a mendments

. ” I d.
Pu rportedly ac ting pur sua n t t o S ection 481 .034(g) of the TCSA , t he
Commissio ner o bj ected to t h e IFR ’ s modifica tion of two defini tions in the DEA ’ s re gu lations

as follows :

The inte rim final rule modi fies 21 CFR 1308.11(d)(31) by adding la nguage stating that t he definition of “ Tetrahyd r ocannabinols ” does not include “ any material, compound , mixt ure o r preparation th a t falls wit hin the definition of

4 A ccording to appell ees ’ pleadin g s, fo llowi ng the enactment of the 2 018 Far m Bill and t he Texas l egi s lation, “ an entirely new ma rket fo r [hemp] products emerged. ” I n Texas , there are

“ hemp businesses all acr oss the supp ly chain, from cultivation to sale , and all areas in bet ween , ” the D e partm ent “ has issued l ic enses for hundre ds of [con sumable h e mp p roducts] processors and manufacturers, ” and the De partment has regis tered “ thousands ” of ret aile rs of con sumable h e mp products

.8 hemp set forth in 7 U.S.C 1639o. ” T he commissioner ob jects to this modification.
The interim final rule modifies 21 CFR 1308.11(d)(58) by s t ating that the definition of “ Ma rihuana Extract ” is li mited to e x tracts “ containi n g greater t han 0.3 percent delta

- 9

- tetrahydrocannab inol on a dry wei ght basis. ” The
co mmissioner objects to this modification

.

See Tex. He alth & S afety Code § 481.034(g) (a u thorizing commissioner to object when federa l
law desi gnates , re s chedules, or del etes control led substance on schedules ). T he Commissi oner object ed to the two definitions that the DEA proposed “ to the extent that the defini tions allow for the p rese nce or addition of tetrahydrocannab inol s a side from the prese nce of [ d e l ta

- 9 THC ]

. Mult iple [ THC ] i somers and variants may have pharmacological or psychoactive properties

. ” According to the Commissioner, del ta

- 8 T HC der ived or extracted from hemp or CBD p r od uce s

a hig her concentration p roduct that is subject to control

. I n October 2020, t he Com missioner held a br ief public hearing via Zoom on h er
ob jections ; n o co mme nts were received during the hearing ; and i n Ja nuary 2021 , the
Commission er published h e r dec isio n that Texa s did not adopt the DEA’s “ modifica tions of t he

two def ini tions ” as to the federal schedules

. See 46 Tex. Reg. 873 (2021).
In March 2 021, t he Comm iss ioner pub lished t he 2021 S chedule of C ontro lled
S ubstances with the following change s (shown in bold) to Sche dule I substances from the pr ior

year as to T H C a nd m ari h uana e xtra c t :
*(31) Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained in a plant of the gen us Cannab is (cannab is plant), except for up to 0.3 percent d e lta

- 9

- tetrahydrocannab inols in hemp (as defined unde r Texas Agri cultur e Cod e 121) , as w ell as synthetic equivalents of the substances contained in the cannabis plant, or in the re sinou s extra ctiv es of suc h plant, a nd/or synthetic substances, derivatives, a nd their isomers with simil ar chemical structure and pharmacolog ical a ctivi t y to those sub s tances contained in the plant, s uch as the following

. . .9 *(58) Marihuana extrac t, mea ning an extract con tainin g one or m ore cannabinoids that has been derived fr o m any plant of the gen us Ca nnabis, except for extrac ts derived f rom he mp (a s defined un der Texas Agriculture Code 121) cont aining up to 0.3% delta

- 9

- tetrahydrocannabinol on a dry weigh t basis , ot her than separated resin (whether crude or purified) obtaine d from the plant



### .

46 Te x. Re g. 1763 (2021)

. T he sche dule modi fie d its prev ious version by refer r ing to the
definitions in the Tex as Agriculture Code , instead of the fed eral stat ut es , and rewor ded the
def inition s to designate THC as controlled , “ e xcept for up to 0. 3 perce nt ” de l ta

- 9 THC in h emp , and mari huana ext ract as contr olled, except for extracts derived from hemp “ containing up to
0.3% delta

- 9

- tetrahydrocannabinol

. ” C f. 44 Tex. Reg. 2517 (2019)

. I n O c tober 2 021 , the De partment also posted the following st a te ment on its
website as to “ Con sum ab le Hemp Pr oducts ” :

Texas H ealth & Safety Co de Chapter 443 ( HS C 443) , es tablished b y House Bill 1325 (86th Legislature), allows Consumable Hemp Produ cts in Texas that do n ot exceed 0.3% Delt a - 9 tetrahydrocan nabinol (TH C ). A ll other forms of THC, includi ng Delta

- 8 i n any conce ntrat i on and Delta

- 9 ex ceeding 0.3% , are c onsidered Schedule I controlled substances

. Litigation Ensu ed
Sh ortly after the Department posted this sta tement on its websi te , appell ees sued
the De par t ment and the Commissioner seeking t emporary and permanent injun c ti on s and
declara t ory rel ief . In their sec ond amended petition, appellees alleg ed that (1) the Com missi oner acted ultra vires by adopting any a mendme nts to “ tetrahy drocannabinols ” and “ Marihuana

extract ” in the 2021 S chedul e of C ontrol led S ubstances beca use the Commission er did not comply with statutor ily re quired procedures under the TCSA , see Tex. Health & Safety C ode § § 481.034

– .03 5 , and (2) t he a mendments to the definitions and the Department ’ s O ctober 2 0 21

statement were in valid rule s u nder the Texas Ad mini s tr ative Pr ocedure Act (APA ) , see generally10 Tex. Gov ’ t Code § § 200 1. 0 21

– .041 (setting out proc edures for APA rulemaking)

. Appellees alleg ed that de lta

- 8 TH C that was deri ved f rom hem p was de

- sc h eduled and no longer deemed a
controlled substanc e and that the Departme nt an d the C o mmissioner had imp r op e rly amen ded
the s chedule s of c ont rolled s ubstances to make delta

- 8 THC derived from hem p a n illegal
Schedule I control led substan ce
. 5 Among it s req u este d rel ief, a ppellees so ught to tempo rarily

e njo in t he “ effect iveness going forward ” of the amend ments to the terms

“ t etrahydrocannabinols ” and “ Marihuana extract ” in the Department ’ s 2021 Schedule of
Cont rolled Substances

. The Department and C o mmissi o ner filed a plea t o the ju risdiction wi th evi dence,

se eking to h ave appe llees ’ claims dismissed on the grounds tha t appellees lack ed standing and
their claims we re barred by s overeign immunity

. Appe llants contended that the Commis sioner
did not act ultr a vires be cau se s he act ed within h er a uthority under S ec t i on 481.0 34(g) of the
TCSA and that appellees did not have standin g bec ause th ey sought relief from criminal

e nforcement, which was not wit hin t he Depar tmen t ’ s responsibility , and they di d not allege t hat

t he Department was atte mpting t o revoke their l ice nses or th at they were facing civil penalties

. The evid ence attached to the plea included copies of the De partment ’ s published schedules of

cont r olled substances from 2017 to 2021 , the Commissione r ’ s S e ptember 2020 notice o f obje ction , the January 202 1 de ci sion ord er , the DEA ’ s IFR , an a nalys is of changes in cann abis
potency from 1995 to 2014, and other reports and articles on del t a - 8 THC

. The t rial court he ld a hearing on th e plea t o the jurisdict i o n and app ellees ’ request
fo r temporary injunctive reli ef. Appel lees ’ wit nesses were the executive director of the Texas

5 As counsel for appellees explained du ring the hear ing , the 20 2 1 sche dul e m ade the change from prohibit in g delta

- 9 THC in conc e ntrati ons exceeding 0 .3 percent to “ prohibiting all f orms of THC, e xce pt f or de lta

- 9 THC in conce ntrations not exceeding 0 .3 per cent. ”11 H e mp Foun dation ; the director o f government and publi c affairs for the Departme nt of Texas
V eterans of Foreign War s ; a retai ler of pro d u cts cont aining de l ta

- 8 THC ; the chi ef financial
offic er of Sky Marketing ; an owner of a company that manufactures product s containing de l ta

- 8
THC and re tail s tore s selling delta

- 8 products ; and the d eputy state in spector for the State of
Texas

. Appe lle es ’ wi tnesses testified a b o u t t he Co mmissioner ’ s modific ations to the sch ed ule s , the ir invo lvement with delta

- 8 THC products , and how the C o mmissioner ’ s modificatio ns to the
schedule s had impact ed them

. The evidence sho wed that after hem p was legalized in Texas , pro ducts contain in g del ta

- 8 THC de rived from hem p were b eing sold i n Texas and used by
i ndividuals to manage pain and other health issues, including d epe n denc y on o pio i ds

. B oth sides
offere d ex hibits that the trial court admitted , but appellants did not c all any wit nesse s
. Following the hearing , the trial court denied appellants ’ ple a to the ju r isd icti on

a nd granted a ppellees ’ request for a tempor ary in junction , enj o ining “ the effectiveness go ing
forward of a mendments to the terms ‘ tetrahydroc annabinols ’ and ‘ Marihuana e x tra ct ’ in the [Department ’ s] 202 1 S chedule of Con trolled Substan ce
. ” The trial court ordered the Depar tment

to “remove from its currently published Schedule of C ontro lled S ubs tances the most r ecent
modifications ” of the definitions and an y sub se quent pub l i cations and “enjoin[ ed ] the
effectiveness going forward of the r ule stated on [ t he D epartment ’ s ] website that D elt a - 8 THC in
any concent ration is considered a Schedule I contr olled substance

. ” This appe al f ollow ed.

AN ALYSIS
In t w o iss ue s, the Departm e nt and the Commissioner c onte nd t hat the trial co u rt
erred when it denied their p lea to the jurisdicti on and abused its di s cretion when it granted

tem po r ary injunctive relief

.12 P lea to the Jurisdictio n
Standard s of Review and Applica ble Law

“ Sovereig n immunity protects the State of Texas and its agenci e s and
subdi v isions from suit and from liability. ” Matze n v. McLane , 659 S.W.3d 381, 387

– 88 (Tex.
20 2 1) (c iting PHI, Inc. v. Te x as Juv. Just. Dep ’ t , 593 S.W.3d 296, 301 (Tex. 2019) )

. “ B ecaus e
the asser t ion of sovereign immunity imp licates the courts ’ j ur i sdiction, i m munity is properl y raised in a plea to the jurisdiction. ” I d. at 3 88 (citing Hous ton Be l t & Terminal Ry. v. City o f
Houston , 487 S.W.3d 154, 160 (Tex. 2016) )

. To defeat a pl ea to the j u r isdiction that ch alleng e s th e pleadings , the plaintiff

su ing a state a ge ncy or a st ate official must “affirmative ly demonstrate ” in it s pleadings t hat
soverei gn im munity ha s been wai ve d or that it does not apply

. Texas Dep ’ t o f Park s & Wild li

f

e

v. Miran d a , 133 S.W .3d 217, 226 (Tex

. 2004). “ We co nstrue the p l eadings liberall y in favor of
the plaintiff s and look to the ple ader s ’ intent. ” Id. A plea to the jur isdictio n m ay also chall enge

t he existence of j urisdiction al facts

. Mission C on sol. Indep . Sch. Dist. v. Garcia , 372 S.W.3d 6 29 , 635 (Tex. 2012). “ In t hose cas es, the cour t can consider evidence as necessary to r es olve any dispute over those facts, even if that ev idence ‘ implic ates bot h the subject matt er jurisdiction of
the court and t h e mer its of the case. ’ ” Id. (quoting Mir anda , 133 S.W.3d at 226)

. The tria l

court ’ s review of the eviden ce “ mirrors that of a traditional summ ary judgment motion. ” Id

. ; see Bland Indep. Sch. D ist. v. Blu e , 34 S.W.3d 54 7, 553

– 54 (Tex. 2000)

. “ We review ord er s

on p l eas to the juri sdict ion d e no vo. ” Ma tzen , 659 S.W.3d at 388 (ci ting Univ ersity of Tex.
M.D. Anderson Cancer Ctr. v . McKenzie , 578 S.W.3d 506, 512 (Tex. 201 9) ) ; see Miranda , 133 S.W.3 d at 226

.13 T he juris dictional issue s that appellants raise also involv e statutory construction,
whic h is a question of law that we revi ew de no vo. See First Am. Title Ins. v. Comb s , 258 S.W.3d 627, 631 (Tex. 2008). We be gin “ ‘ with the Legislature ’ s word s, ’ looking first to their plain and comm on meaning. ” El Pa so He althca r e Sys., Ltd. v. Murphy , 518 S .W.3d 412, 418 (Tex. 2017) ( quoting Fitzgerald v. Advanced Spine Fixation Sys. , Inc. , 996 S.W.2d 864,
865

– 66 (Tex. 1999)); see also Presidio Indep. Sch. Di st. v. Scott , 309 S.W.3d 927, 930 (Tex. 2010) (construing “ text ac cordi ng to p lain and co mmon meaning unless a contrary intention is
apparent from the context or unless such a construction leads to absur d results ” (citing City of Rockwall v. Hughes , 246 S. W.3d 621, 625

– 26 (Tex. 2008))). “ In conducting this analysis, ‘ we
look at th e entire act, and not a single section in isolation. ’ ” Murphy , 5 18 S.W.3d at 418. This

“ text

- based approach to statutory con struction requires us to study the language of the sp ecific provision at issue, within the context of the statute as a whole , ende a voring to give effect t o every word, clause, and se ntence. ” Id. (quoting Ritchie v. Rupe , 443 S.W.3d 856, 867 (Tex. 2014)).

Stand ing As part of their first issue, t he Departm ent and t he Commissi oner argue that the

t r ial c our t erred in de ny i ng the i r ple a to the ju risd ict ion because appell ees do not have standin g
. Standing is a component of su bject matter jurisdiction

. Waco Indep. Sch. Dist.

v. Gibson , 22 S. W.3d 849, 850 (Tex . 2000) ; see Tex as Ass’n of Bus. v. Tex a s Air Control Bd

. , 852 S .W.2d 4 40, 44 5

– 46 (Tex. 1993) ( discussing requirement that p arty ha s st anding to invoke
trial court ’ s subject matter jurisdiction ). “ The issue of standing focuse s on whether a party h as a
suf ficient relationship with the lawsuit so a s to have a ‘ jus tic ia b le int e rest ’ in its outcome. ”14 Austin Nursing Ctr., Inc. v. Lovat o , 171 S.W.3d 845, 848 (Tex. 2005)

. To establish standing, a plainti ff must show (1) an actual o r imminent inj ury in fact that is (2) fairly trace able to
the challenge d conduct and (3) li ke l y to b e redressed by the plai n tiff’s requested remedy.
Heckman v . Will iamson C ounty , 369 S.W.3 d 137, 154

– 55 (Tex. 2012) ; see also Cal ifornia v.
Texas , 141 S. Ct. 2104, 211 3

– 11 6 (2021) ( an alyz ing whether individual plaintiffs had standing )

. The De part me n t and t he Comm i ssioner challen g e a ppell ees ’ standing on the

groun d that they canno t re dress appellees ’ alleged harm

. They argue that there is no enforcement
connection be tween the Department and the schedules of controlled substances , that t he Depa rt ment is not the govern mental entit y re sponsible for c riminal enfo rceme nt of controlled
substan ces , that courts e njoin state officials and not laws or exe c utive orders , a nd that “ the relief
th at [ap pellees] would need to redress their alleged injury [is] beyond a nythi n g the trial c our t or
th is Court can ord er the Commissioner ” to d o. See Tex. Health & Safety Code § 481.003 ( authorizing “ director ” to “adopt rul es to administer and enforce this chapte r” ) ; see also id. § 481.002(11) ( “ ‘ Direct or ’ means the director of th e Department of Public S afety or an employee of the departm e nt de signated by the directo r. ” )

. Appell ants contend that “ t he DEA has also
concluded that Delta

- 8 THC is [a] schedule I contr oll ed substance, ” making the trial court ’ s temporary injunction “ mere l y advi sory
. ” The Dep artment, how ever, is the s tate agenc y tha t is required to maintain the
schedules and has statutory authority to reg ulate consumable hemp products

. See , e.g. , Tex. Health & Safety C ode § § 443.10 3 (requiring license from D epart ment t o manufacture hemp and

r equiring appli cation to be accompani e d by certain information including “ any other information

r equired by department ru le ” ) , .15 1 (requiring consumable hem p produc ts to be tested “ for an y
other substance prescribed by the de partmen t ” ) , 481.03 4 (a) ; see als o 25 Tex. A dmin. Code15 § § 300. 10 0 ( De p ’ t o f St

. Health Servs., Purpose) ( “ This chapter implements T exas Health and
Sa fet y C o de , Ch apter 443, regulating the manufactu re, distribution, and retail sale of consumable hemp and co nsu mable h emp products in the Sta te of Texas. ” ), 300 .2 01(a) ( Dep ’ t of St

. Health Servs., Application for Licen se or Renewal) (requiring person to hold license issued by Departme nt before engagi ng i n manu facture, pr o cessing, or di stribution of consumable hemp

p ro duc t s)

. Among its r egulato ry rol es concerning the hemp industr y , t h e De partment has authority to impose administrative penaltie s against person s who hold license s or are registered
under the chapte r and violate the chapter

. See 25 Tex. A dmin. Code § 300.606 ( a) ( Dep ’ t of
St

. Health Servs., Administrative Penalty) ; se e als o Tex . Health & Safety C ode § 481. 30 1 ( authorizing Department to impose administrative penalty on person who violates spec i fied
sections or “ rule or orde r adopted under any of those spec ified sections ” ).
A ppelle es all ege d in their pleadings and pres e nt ed ev idence of injury “ fairly
traceable ” to the Com missione r ’ s amendments to the schedule s of contr olled subs tance s , whi c h

t h e Commissioner is stat utorily requ i red to “ annually e stablish ” and main tain , and they see k prospective relief

. S ee Tex. Health & Saf ety Code § 481.03 4 (a) ; Heckman , 369 S.W.3d at 154

– 55

. Alt houg h appellee s ’ pleadings al le ge potential harm from criminal en fo rcement of the

“ improper modifications to t he term s, ” they also al l ege that “ such enfo rc ement will effectively ban [them] from cond ucting fu rther business r elated to their sale of certain legal hemp product s ”
and th at the app ellee s ’ businesses have l ost and will continue to los e revenu e , good will, and
reputat ion and have h ad to reduce their work force

. A ppellees ’ ev idence presen t ed at the heari ng
also showed ongoing injur ies to busine sses manufac t u ring and selling products with delta

- 8 THC
derived from h emp , in cluding loss of customers , market share, and rev enue , and to individuals
because of the loss of ef fective treatmen t for c e rtain health con di t ions ; the evidence showed16 those injuries were fairly traceab le to th e challenged schedule modifications and the Department ’ s Octo ber 202 1 sta tement

. Appe llees ’ requested relief to enj o in the effect ive ness of
the modi fi cation s g oing f or

w ard lik ely w ould re dress th e se alleged ong oing i n juries.
See Heckman , 369 S.W.3 d at 154

– 55

. Viewing the pleadings liberally in fa vor of appellees and the evidence in the l ight

mo st f av or able to them , we conclude t hat the tr ial court d id not err whe n it determined t h at they
had stan ding to assert their claim s agains t th e Dep artment and the C ommiss ioner

. See Garcia , 372 S.W.3d a t 635 (explaining that review of evidence in plea

- to

- the

- juris diction conte x t mirrors
tha t o f motion for traditional summary jud g ment ) ; Mira nda , 133 S.W.3d at 226.

U

ltr a Vires Claim As part of their first issue, t he De partment and the C o mmis si oner a lso challenge
the trial court ’ s jurisdiction over appellees ’ ultra vires clai m against the C o mmission er 6 on the

g round s that t h e cla i m “ lacks merit as a matter of law an d see ks impermissible retrospective
relief ” and that “ the Comm issioner ’ s acti ons were autho rized by Chapter 481 of the Texas Health and Safety Code. ” Spe cifically , they argue th at the Commissioner “ d id not e xceed [her]
auth ority under Section 481.034(g) ” and t hat the C o mmissioner was not required to comply with
the other s ubsec tions of Section 481.034

. See Tex. He alth & Safety Code § 481.0 34

.

“ Texas l aw recogni z es ‘ ultr a vir es ’ clai ms seeking prospective injunctive r e lief

a g ainst in divid ual g overnmen t of ficials in their official capacities. ” Ma tzen , 659 S.W.3d at 38 8

6 In their b riefing, a pp ellees confirm tha t their ultr a vires cla im is not again st the Department

. S ee Tex as Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 621

– 22 (Tex. 2011) ( “[T]he UDJA d oes not en large the trial court’ s jurisdiction but is ‘merely a procedural devic e for deciding cases already within a court ’ s ju risdic tion.’” (qu oting Tex as Parks & W ildl ife Dep’t
v. Sawye r Tr. , 354 S.W.3d 384, 3 88 (Te x. 2011) )); S awyer Tr. , 354 S.W.3d at 388 ( ag reeing that

“ t here is no general right to s ue a state agency for a dec laratio n of rights ” )

.17 (citing City of El Paso v. Heinrich , 284 S.W. 3d 366, 373, 376 (Tex. 2009) ) ; se e Phill ips

v. McN e ill , 635 S.W. 3d 620, 628

– 29 (Tex. 2021) (discussing ultr a vires suits against g overnment
offi cials) ; Chambers

– Liberty Cntys. Navigation Dist. v. State , 575 S.W.3d 339, 34 9

– 5 5 (Tex.
201 9) ) (same)

. To successfully bring an ultra vires c laim, a p l aintiff mu s t plead and p rove “ that
the d efendant g overnment officia l ‘ acted withou t legal author ity o r failed to perform a ministerial

act. ’ ” M at

zen , 659 S.W.3d at 3 88 ( quoting Heinrich , 284 S.W .3d at 372 )

. “ An officer acts
without legal autho ri ty ‘ if he exceeds t h e bounds of h is granted author ity or if his acts conflic t
with t he law i tself. ’ ” Id. (q uot ing Hous ton Belt & Terminal Ry. , 487 S.W.3d at 158 ) ; see
Southwest ern Bell Tel. , L.P. v. Emme tt , 459 S.W.3d 578, 583 (Tex. 2015 ) (stati ng that whether
offici al ’ s condu c t was ultr a vires “ depends on what the statute requir e d ” )

. A ppellees argue that th ey ha ve alleged facts that, if true , dem ons trate that the
Commiss ioner , acting in her official ca pacity , exceeded h er statutory authority and violated
Section 481.034 wh e n she amen d ed the sc hed ules of controlled substances ba s ed on he r obj ection to th e DEA ’ s IFR

. Appell ees alleged that S ubsection (g) did not apply , see Tex. Health & Safety Code § 481

. 034(g) ; and tha t t he Commissioner was requ ired to comp ly with the

ot her subsec tion s of Section 481.034 before modi fying th e sch e dules , s ee id. § § 481.034 (a), ( b), (d) , (e) , (h) , .035(a) , which s he fai led to do

. According to appellees, the C o mmissioner ma y not
invo ke S ection 481 .03 4( g) as a basis to circumvent the pr e s cri be d p r ocess for amend ing the
schedule s u nde r the ot her subse c tions of Section 481.0 34 , that th e Commiss ioner acted u ltra vires by violating S ection 481.034 when s he amended the sche dules p urportedly in response to
the IFR , and t h at their request ed rel i ef is pros pective

. Section 481.034 sets out man dato ry requir eme nts bef ore the Comm issioner may

a dd or d elete a substance from the schedules of controlled substances , and appellees have alleg ed18 in their pleadings that the C omm issione r failed to follow t he sta tuto r y requirements when she
modif ied the def initio ns of T HC an d mari h uana ex tract in the schedules

. Among the statutory prohibitions in Section 481.034 , the Commissi oner may not add a su b stance to the schedules that the legislat ure has deleted fro m the s ched ules. See id. § 481.034 (c) (1) s ee also Tex. G o v ’ t C ode § 311.016 (5 ) ( “ ‘ May not ’ imp ose s a prohibition and is synonymous with ‘ shall not. ’ ” )

. A ppellees rely o n this provision and the statut ory defin ition s of hemp to assert that t he
Co mmissioner acted ultr a vires when she modif ie d the sc hedules because the legis lature removed hemp a nd he mp - der ived prod ucts , which appellees allege include del ta

- 8 THC products , fr om
the s chedules of contr olled substances

. See Tex. Agr ic. Code § 1 21. 001 (d ef ining “ hemp ” ) ; se e
also Tex. Health & Safety Code § § 443 .204( 1) ( p roviding that rules adopted by executive
commissioner regulating sa le of consumable hemp products must , to extent allow able b y federal
l aw , reflect pri n cip le that “ hemp

- derived ca n nabino ids, i ncluding cannabi diol, are not con sidered
controlled s ubstances o r adulter ants ” ) , 481.002(5) ( defini ng “ co ntrolled substances ” to not
include h emp , as defined in Agric ul t ural Code, or THC in hemp ). Th is allegat ion

— based on the prohibition in S ub secti o n (c)

— is sufficient t o invoke the trial court ’ s jurisdict ion

. See H ouston
Bel t & Terminal Ry. , 487 S.W.3d at 158 (explaining that state official acts without legal authority when he “ exceeds the bounds of his granted authority or if h i s acts conflict w ith th e
law it se lf ” ).
A n other provision in Section 481.034 that a ppel lees rely on to s upport the trial

court ’ s jurisdiction is Subsection (b) , which provides tha t “ [ e ] xcept for alter ations in schedules

requ ired by Subsection (g), ” the Commissione r “ m a y not make an alt eration to a sch edu le unless
the Commissioner h olds a pub li c hearin g o n the matter in Austin and obtain s approv al from the
executive c ommissioner. ” See Tex. Health & S afet y C o de § 481.034(b) ; s ee also Tex. G ov ’ t19 C ode § 311.016 (5 )

. Appe l l ees contend that Subse ct ion (g) d id not apply and , the ref ore, th a t the
C o m missioner was re quired to comply with Sub section ( b). 7 Beginn ing with t he plain language of the phrase stating t he exception in
Sub sect ion (b) , we observe that it limits i ts scope t o alter ation s to the sc hedules that are

“ required ” in Subsect io n (g)

. Se e Webster’ s Thi rd New Int ’l Dictionary 1929 ( defining “ require ”

to mean “ to dema nd as necessar y or es sential (or on gene ral principles or in order to comply with

or s atisfy som e regulations) ” )

. Thus, th e p lain language makes cle ar that the exc ept ion only applies wh en the Commissi oner does not obje ct to a federa l law desig nating a sub stance as a
controlled substance or rescheduling or delet ing a substance because in that situation , the
Commissioner is req uir ed to make altera tions to conform the state schedu les to m ir ro r the federal
law

. See Tex. Health & Safet y C o de § 481.034( g ) (stat ing that c ommissioner “ simi larly s hall designate , r esched u le, or delete the substance ” unless commi s sioner objects ) ; see al so Tex. G ov ’ t
C ode § 311.016 (2) ( “ ‘ S hall ’ impos es a d uty. ” ) , (5 ) ; C ity of Austin v. S outh west ern Bell Tel. Co. , 92 S.W.3d 434, 442 (Tex. 2002) ( stating that court g e nerally const rues “ shall ” “ as mandatory ,

u nless legi slative intent s u ggests otherwise ” ) ; He len a Chem. Co. v. W ilkins , 47 S.W. 3d 486, 494 (Tex. 2 00 1 ) ( s tat ing that “ shall ” “ generally recognized as mandatory, creating a duty or obligation ” )

. It follows that , when the exc eption does not apply , Subsection (b ) mandates that

t h e Commissioner hold a h ear ing on the matter in Austin an d obtain the approva l of the

e xec utive commission er bef ore making an alteration to the sched u le. See Tex. Health & Safety
C ode § 481.034(b)

.

7 Even if the Commission e r pr operl y objected to the IFR, a ppellees a ssert that t he Commis sioner in her stated o bject ion to the IFR did not notif y the public that a hearing would be he ld “ on the matter ” of the Department ’ s intention to make substantive modifica ti ons to the definit i ons of TH C and marihua na extract on the sc hedules

. See Tex. Hea lth & Sa fety Code § 481. 034 (b).20 The Departmen t a nd the C o mmissioner argue that Subse c t ion (g) of Section
481 .03 4 authorized the Commissioner ’ s action s because the I FR “ did de s ignate and reschedule
the s ubstan c e s ” by changing the definition of THC and marihuana e xtract in the federal schedule
and that the IFR was “ out

- of

- sync ” with t he fe d e ral sta tu te

. 8 But, e v e n i f we a ssume that the I FR
tri ggered the applicab ility of Subsect ion (g) when it was published in the federal reg ister , the plain language o f Subsection ( g) d oes not authorize the Commission er to mo dify the schedules
except when sh e is modify ing the sched ule s to conform them with f ederal modif ic a tions

. When

t he Commiss ioner objects to a modification in the federal schedules , the Commissioner does not have to change the s tate sc hedules to confo rm them with the federal sch edules and m ay maint ain
the state s che dules as they are , b ut it doe s not fol low from this a uthority t hat sh e is al so
autho rize d to modify the state schedules based on an objection to a federal modifi cation without following the additional requirements in Sect ion 481. 0 34 for doing so.
Th e p lain lang uage of Subsection (a) makes this cl ear :
(a) T he commiss ioner sh all annual ly establish the schedules of controlled subst ances. These annual schedules shall include the complete list of all controlled substances from the previous schedules and mod ifications in the federal schedules of controlled s ubst ances as r equired by Subsect ion (g)

. Any further additions to and deletio ns from these schedules, any rescheduling of substances and any other modifications made by the comm i ssioner to these schedu les of controlled substances shall be mad e : (1) in acco rd ance with Section 481.035; (2) in a manner consistent with this subchapte r; and (3) with approval of the executive commissioner.

8 The IFR ’ s summary state d that it “ merel y conf orms DEA ’ s regulations to the statutory amendments to [t he federal c ontrolled s ubstance a ct ] that have alr eady t aken effe ct, and t hat it d oes not add addi tional requirem ents to t he regulation s. ” It also explains that the DEA had “ no d i sc retio n with respect to these amendments

. ”21 Id. § 481.034(a) (emp h asis added) ; see id. § 481.035. In other words, the st at ute req uires th e Commissioner, e xcept for requ ired modif ica tions unde r Subsection ( g ) to conform the state

sc hedule s with the federal schedules, to comp ly with the other subsections o f Section 481.0 3 4 , including making req uired findings under Sect ion 481.035 , for “ any f urther addit ions to and
deletion s from the se schedules

. ” See id. § 481.034 ( a). Among the other statutory requireme nts , Sub section (d) r equire s the
Commissioner to co n sider eig ht fa c tors when “ making a det erminatio n regard ing a substanc e , ”
Subsec tion (e) requires th e Commissioner to ma ke finding s as to those fa ctors and the executive
commissioner to adopt a rule controlling the substance if the C o mmissioner finds the substa nce
has a p otenti al for abuse , and Sub section (h) r equires the Commissioner to provide writt en notice

to the direct or and s ta te l icensing agencies having jurisdiction over pr actitioners

. See id

. § 481.034 (d ) (stating that c om missioner “ shall c onsider ” listed factor s ) , (e) (stating that

c ommissio ner “ shall make fi ndings w ith re sp ect to those factors ” an d that executive
commissio ner “ shall adopt a rule controlling the substance ” ) , (h) ( re q uiring commissioner to giv e
written notice wh en commissioner desig nates, deletes , or resc hed ules su bstance under
S ubsection (a) t o director and s tate l icensing agen cies ) ; see also Tex. G ov ’ t C ode § 311.016 (2) , (5) ; S outh western Bell Tel. Co. , 92 S.W.3d at 442 ; W ilkins , 47 S.W. 3d a t 494

. We also o bserve t hat appellees s upported the i r ultra vires allegation s with
evidence

. See Mi ssion Con sol. In dep. Sch. Dist. , 372 S .W.3d at 6 35 (statin g that tri al court ’ s
review of evide nce in plea

- to

- the

- jurisdict ion context mirrors th at of traditional summary judgment review and that if fact i ssu e exists, plea should be denied )

. For example, t he e xec utive
dir ector of the Texas Hemp F oundation testifi ed that th e Commissioner “ should ’ v e pos ted in the
Te xas Register directly that we ’ re going to have a hearing on a de cision to re schedule legal22 hem p - d e rived Del ta

- 8 [THC] onto the controlled substanc es list and didn ’ t. They failed to do
that

. ” See Hall v. McRave n , 508 S.W.3d 232, 238 ( Te x. 2017 ) (stating that state official with

“ some discretion to interpret and apply law may non etheless a ct ‘ wit ho ut l e gal author ity , ’ and thus ultra vires, if he exc eeds the bounds of his granted authori ty or if h is acts co n fli ct wit h the
law it se lf ” (qu oting Housto n Belt & Terminal Ry. , 487 S.W.3d at 1 58) ).
A t this sta ge of t he case , our i n quiry concerns the trial cou rt ’ s jurisdiction and not
the me rits of the part ies ’ disputes

. C ons tru ing the pleadi ngs liberally in fa vo r of appel lees and reviewing the evidence in the light most favorable to th e m , we conclude that the trial cour t did not err in denying a p pellants ’ ple a t o the jurisdiction as to appellees ’ ultra v i r es cl aim

. See
Missi on Con so l

. Indep. Sch. Dist. , 372 S .W. 3d at 6 35 ; Miranda , 133 S.W

. 3d at 226.

APA Claim As part of their first issue, t he De partment and the C o mmis sioner also challenge
the trial co urt ’ s jurisd iction over appellees ’ rule challeng e brought under the A PA

. S ee generally
Tex. Gov ’ t Code § § 200 1

. 021

– . 038

. Appell ants argu e that the “ challenged actions by the
Commissioner are not sub ject to a rule challenge under the APA ” or the A PA ’ s pro ced u ral requirements , that the schedules “ have t he force of legislat iv e action , ” that the October 20 21

statemen t on the D epartment ’ s website is valid and not a rule be cause the statement is correct
informat ion that “ c ombats misinformation , ” and tha t the p o st e d statemen t has no legal effect
because “ nobo dy can be charged w i t h or convicted of v i olating the statement, and the s tatement
cannot be otherwise enforced. ” Appell ees ’ APA claim is asserted a gainst the Depar tment

. Se e id. § 2001.0 38(c) ( r eq u iring sta te age ncy to be made party to action) ; Holt v. Texas De p’t of Ins.

— Div. o f23 Wo rkers’ Comp. , No. 03

- 17

- 00758

- CV, 2018 Tex. App. LEXIS 10555, at *3 (Tex. App.

— Austin Dec. 20, 2018, pet. denied ) (mem. op.) (same)

. Appellees ’ APA claim against the
De p artment in vokes the trial co u rt ’ s “ subject matter jurisd iction i f appellee s hav e challenged the

‘ validity ’ o r ‘ applicab i lity ’ of a rule under the APA a nd t hey allege that th e ‘ rule or i ts threatened applicat ion inter feres with or impairs, or threatens to i nterfere with or impair, a le gal right or privilege of t he plain tiff. ’ ” Te xas Dep’t of Transp. v. Sunset Tra nsp., Inc. , 357 S.W. 3d 691, 702 (Tex. App.

— Austin 2011, no pet.) (quoting Tex. Gov’t Code § 2001.038( a ) ). “ Determining
wh ethe r appellees have d one so ” “ does not require us to delve i nto the me rits of the claims. ” Id. (citing Tex as D ep’t of Pub. Saf ety v. Salazar , 3 04 S.W.3d 896, 903 (Tex. App.

— Austin 2009, no pet.) ) ; see also Combs v. Entertainment Publ ’ ns, Inc. , 292 S.W.3d 712, 720 (Tex. A pp.

— Aust in 2009, no pet.) ( “ [T]he APA declaratory

- judgment vehicl e of sect ion 2001.038 is a legi slative grant of subject

- matter jurisdict ion

. ” )

. The jurisdictional inquiry concerns w hether the De partment ’ s challenged

statem ent and modifications to the 2021 sche d ul e const itute a rule under the APA and, i f so,
whether the rule or its threaten ed appli cation interferes wit h or impair s appe lle es ’ legal rig ht s or privile ges. See Ente rtai nment Publ ’ ns , 292 S.W.3d at 720

. A rule is defined un der the APA as

“ a sta t e age ncy stat ement of general applicability ” that “ impl ement s, i nterprets, or prosc r ibes law

o r po licy ” or “ describe s the pro cedure or practice requirements of a state agen c y , ” but the
definition “ does n ot include a statement regarding only the internal managem ent or o r ganization of a state agency and not affecting private rights o r procedures

. ” Tex. Gov ’ t Code § 200 1.003(6)(A )

. “ ‘ [T] he core concept ’ in distinguishing b etween an agency statement that concerns only ‘ internal management ’ and a ‘ rule ’ is whether the ag e n cy statement has ‘ a binding effect on private parties. ’ ” See T exas Tel. Ass ’ n v. Public Util. Comm ’ n of Tex. , 653 S.W .3 d 227,24 266 (Tex. App.

— Austin 2022, no pet.) (quo ting Texas State Bd. of Pharmacy v. Witcher , 447 S.W .3d 520, 529 (Tex. App.

— Aus tin 2014, pet. d e nied) ). “ [T]o constitute a ‘ rule ’ und er [the APA] definition, ‘ an agency statement interpreting law mu st bind t he agency or otherwise represent its authori tative position i n matters that impact personal rights

. ’ ” Id. “ W hen an

agenc y pr o mulgates a rule w ithout complying with the prope r rule

- making procedures, the ru le is
invalid. ” El Paso Hosp. Dist. v

. Tex as He a lth & Human Serv s

. Comm ’ n , 247 S.W.3d 709, 715 (Tex. 2 008) (citing Tex. Gov ’ t Code § 2001.035)

. Here , t he Departme nt does n o t contend th a t it c om plied with the APA ’ s rule

making p rocedures when it modi f ied the 2021 schedules or p osted the state me nt in O ctober 2021
on its website that delta

- 8 THC was a Schedule I controlled substance

. See Te x. Gov ’ t Co de §§ 2001.021

– . 041 (sett i ng out pr oce d u res for state agencies to adopt r ules ) ; s ee id. § 2001.035 (sta ting that rule is voidable unless st ate age ncy adopt s i t in substan tial compliance with Sections
2001 .0225 through 2001.034 )

. The Depart ment instead contends that the trial court d oes n ot
ha ve ju ris d i ctio n over appellees ’ APA claim o n the gr ounds that the publica tion of schedules and
the October s tatement on its website w ere not rule s and that the Commissio ner is required to

com ply with S ect ions 481 .034 and 481 .035 of the TCS A whe n amending schedule s , in ste ad of
the procedural rule m akin g requirements of the APA

. Se e Tex. Health & Safety Code § 481 .032(a) ( stating that c o mmi ssioner “ shall establish an d modify the foll owing schedules of
controlled substances under this s ubcha pte r ” ( empha sis added) )

. But S ection 481.03 4 (e) exp r essly r equires the exec utive commiss ioner to adopt a rule controlling a s ubstance that the commis sion er has f ound ha s a potential for abuse after considering the statutory factors. See id

. § 481.034 (e) ( stati ng that executive co m m issioner

“ sha ll adopt a rule con trolling the s ubstance ” when co mmissioner “ finds the substance has a25 potent ial for a buse ” )

. Thus , the legisla t ure expr essly con templated that rule making would occur to adopt a rule controlling a su bsta nce. Id.
In its t emporary injunction order, th e t r ial court found that app ellees had asserted
a valid claim under the A PA base d on the Department ’ s statement on its website “ wherein [the
De partmen t] proclaims that D el ta

- 8 in an y conce ntrat ion is consid e re d a Sch e dule I c o n trolled
substance

. ” Consistent with the trial court ’ s finding , we need go no fu rther than to ob se rve that

t h e Department ’ s statement pr escrib es law , is ge nerally ap plic able to the pub lic at large , does not pertai n to the Department ’ s i nter nal man agemen t , and impacts personal rights , inc luding appellees ’ alleged righ ts

. S ee Tex. Gov ’ t Code § 200 1.003(6)(A ) ; Texa s Tel. Ass ’ n , 653 S.W.3d
at 26 6; Entertai nment Publ ’ ns , 292 S.W.3d at 720 ; see also Tex. Health & Sa fety Code § 443.001(1) (def ining “ consu m able hemp product ” t o m ean “ food, a dru g, a device, or a

cosme ti c, as those terms are d efined by Section 431. 002, th at contains hemp or one or mor e hemp

- derived cannabinoids, including cannabidiol ” )

. This st atement represents the Department ’ s au thoritati v e position on a matter that , according to appellees ’ plea dings a nd
evid ence , threaten s t o interfere wit h or i mpair a ppe lle es ’ legal rig hts or pri vile ges
. See Texas
Tel. Ass ’ n , 653 S.W.3d at 266. Appellees ’ ev idence also showed the ongoing im pact of th e
D epartment ’ s modifications to the schedu le s and po sted sta tement on the business e s selling products with delta

- 8 THC derived from hemp , including loss of customers , market share, and

rev enue , and on the loss of treatmen t for indi viduals sufferi ng from cert a in health con di t ions.
V i ewing the pl ead ings and evidence un de r the a pplicable s tandards of review , we
concl ude tha t the trial court d id not err in concluding that it had jurisdiction over a ppellees ’ APA
claim again st the Depar tment

. See Tex . Gov ’ t Cod e § 20 01.038 ; see also Teladoc, Inc. v. Texas
M ed. B d. , 453 S.W.3 d 606, 620

– 2 3 (Tex. Ap p.

— Au sti n 2014, pet. den ied) (c o nc l uding that26 Texas Me dical Board ’ s pronouncement s in letter was r u le) ; Entertai nment Publ ’ ns , 292 S.W.3d

at 720

– 2 3 ( c oncludin g in c o nte xt of challenge to trial court ’ s jurisdic tion that statement s in
le tters fr om Comptroller con stitut ed ru le)

. Th u s , we conclude that the tr ial court did not err
when it denied the pl ea to the jur isdiction as to appellees ’ APA claim

. Having conc luded t hat the trial c ourt did not err when it deni ed the plea to the j urisdic tion as to appellees ’ ultra vires and APA cl aims , w e overru le the Department and the
C o mmissioner ’ s fi r st issue.

Te mpo rary Injunctio n
In thei r seco nd issue, the Department an d th e Co mmission er challenge the tr i al

court ’ s te mporary i njunction.

Stand ard of Review and Applicable Law

“ A temporary i njuncti on is an extraordinary remedy and does no t issue as a matter of right. ” Butnaru v. Ford Mot or Co. , 84 S.W.3d 198, 2 04 (Tex

. 20 02 ). To ob tain a temporary injunction, a n applicant must ple ad and prov e three elements: (1) a cause of action against t he
defe ndant; (2) a probable right to the relief sought; and (3) “ a probable, imminent, and irrepara ble injury in the interi m. ” Id

. “ A n in jury is irreparable if t he injured p arty cannot be adequa tely c ompen sated in damages or if the damages cannot be mea sured b y any certain pecuniary standard. ” Id. “ A temporary injunction ’ s purpose is to preserve the status quo of the litiga tio n ’ s s ubj ect ma tter pending a trial o n the merits

. ” Id. ; see Universa l Heal th Se rvs., Inc.

v. Thompson , 24 S.W.3d 570, 576 (Tex. App.

— A ustin 2000, no pet). The “ status qu o ” is
d efined as “ the last, actual, peaceable, non

- contest ed status [that] precede d t he p e n di ng

contr ove rsy. ” In re New t on , 146 S.W. 3d 648, 651 (Tex. 200 4) (or ig. p roceeding).27 A trial court has broad discretion in dec iding whether to grant or deny a

tem porary injunction , and its ruling is subject to reversal on ly for a clear abuse of tha t di s cre tion.
See B utnaru , 84 S.W.3 d at 204; Wa lling v. Metcalfe , 863 S.W.2 d 56, 58 (Tex. 1993). We view
the evidence in the l ight mo st favorable to the trial court ’ s ord er, ind ulging every reasonable inference in its favor, and “ determine whether the ord er w a s s o arb itrary as to exceed th e bounds
of reasonable discretion. ” Tho mpson , 24 S.W.3d at 576; see Butnaru , 84 S.W.3d at 2 04 (sta ting that appellate court may not sub stitute its judgment for that of trial court “ unless the t rial court ’ s
action was so arbi t rar y that it e xceeded the boun d s of reason able discretion ” ). A trial court does
not abuse its discretion if some evidence reason ably supports its decision. See Thom pson , 2 4 S.W.3d at 576.

Did the trial court abuse its d iscret ion when it grante d t he t e mp o rary injunc tion? Among t heir c hallen ges to the trial court ’ s tem po rary injunction, t he Departmen t
and the C o mmissioner argue t hat the trial cou rt ’ s temporary injunctio n was improper as a matter

o f law because it enjoined the effective ness of the mod i f ic ations to t he state schedules of

contro l led subst ances going forwar d

. They argue that courts must enjoin parties, not law s , and
that “ [ t ] he trial court cannot ask [appellants] to change the law

. ” T his Court , however, has
affirmed anal o gou s temporary i nju n ctive relief

. See Crown Distrib. , 202 1 Tex. App. LEXIS
6283 , at * 21 (affirming t emporary injunction in part that enjoine d Depar tment from enforcing rule); Texas Alcoholic Beverage C o mm ’ n v . Amusemen t & Mu sic Operators of Tex ., Inc. , 997 S.W.2d 651, 6 5 3

– 5 4 (Tex. App.

— Austin 1999, writ dism ’ d w .o
. j.) (affirm in g temp orary injunction enjoining agencies from relying on memorandu m from state agency defining il legal28 “ gam bling devi ces ” as that term was used in s t atute )

. Thus , we conclude t hat the relief gran t ed
in the temporary injunction was not imp roper as a ma tter of l aw.
The Department and the Commissioner also contend that a ppellee s “ failed to
estab lish any of the three required ele ments necessary to obt ain a temporar y i njunction

. ” As to
the first tw o el em ents, the y rely on their position tha t the trial c ourt did not have jur isdiction

over appellees ’ claims

. In addition to i ts find ing as to appellees ’ APA claim stated a bove , the
trial court made the fo llowing finding a s to the fir st and second ele men t s t o support its
temporary injunction :

1. [Appellees ] have asser ted a valid ultra vires claim against [th e C o mm issioner ] for de clarato ry and injunctive relief for [her ] amendments to the definitions for th e terms “tetrahydrocanna binols ” and “Marihuana e xt r act ”
as reflected in the 2021 Department o f State Health Service s ’ Sc hedule of Controlled Substances.

. . . . 3. [Appellees] ha ve sh ow n a probable right to declaratory and injunctive relief b ecause [the Commissioner ’ s ] actio n amending the d efinitions fail e d t o meet the requ iremen ts found in § 481. 034 of the Te xas Healt h & Safety Code, and [the Department] ’ s rule as stated on it s w ebsite concerning Delta

- 8 failed to comply with the rule making requirements found in the APA

.

As discussed above, we similarly h ave c oncluded that appel le es p leaded valid claims against the
De p artment and Commiss ioner and , based on our review of the evide nce as stated above , we
conclude that appellees presented some evidence of a probable right to relief

. S ee Thom ps on , 24 S. W.3d a t 5 76 (stating that trial court does not a buse its discretion if some evid ence reasonably support s its decision )

. As to the t hird el ement to support its temporary injunction

— probable, imminent , and irreparable injury in the interim

— the trial court f ou n d :29 4. A s a result of [the Commissioner ’ s ] ultra vires actions a n d [the Department ’ s] APA violations, [ap pe llees] will suffer immi nent an d irreparable harm such as brand erosion, reputational damage, including los s of c ustomers ’ goodwill, unsalvageable los s of nat ionwide customers, loss of market s hare, loss of marketi n g techniques, employee for ce reduction, revenue lost and costs in curred by not being able to manuf acture, process, distribute, or sell hemp products that fall within the newly adopted definit i ons for “ tetrahydrocannabinol ” and/ or “ Ma rihuana extract, ” hav i n g to relocate or shut dow n part of [a ppellees ’ ] businesses and c ontribu ting to the insolvency of [their] vendors and customers, and subjecting all of [ap pellees ’ ] employees and similarly sit u ate d co mpany employees and individual cons umers to potential ar r e st and other criminal penalties. In addition, [individual appel lees] , along with other similarly situated individual consumers throughout Texas, w ill ha ve no effective treatment to anxiety, dep ress ion, insomnia, migraines, loss of a ppetite, chronic pain , and
nausea. [Appellees] , along with these other individuals, ma y be fo rced to seek other da nger ous alternatives, like opio i ds or street drugs.
5. [Appel lees] cannot be adequately compensate d in dam ages because the damages are not qu antifiable and there i s no monetary relief that can be obtained from [t he De partment an d C o mm i ssioner]

. Such injuries w ould be compounded should [the De partment and C o mm ission er] not be immediately restrained fro m th eir activities.
The Depa rtment and th e Commissio ner argue t h at the evidence sh owed that appellees who “ b egan manufacturing , selling , or using delta

- 8 THC in 2019 ” “ gam bled on their own interpretation of the statut e , not any inte rpretation put forth b y [t he D epartment] or the
C o mmission er
. ” A ppell ees , however, pre sen ted evidence supporting t he trial court ’ s findings as
to the t hird el ement for temporary injunct ive rel ief

. For example, a s to evid ence of harm to the
businesses with out injunctive relief in the interi m , t he reta iler testified tha t he had b ee n se llin g
pr oducts containing del ta

- 8 THC , w hich was over 50 percent of his busine ss, but that he st opped
d oin g so after re ceiving a letter from the City of Copper as Cove to cease selling the products.

T he ch ief financial officer of Sky Marke t ing testified simi larl y to its having a 50 per cent
decrease in revenu e and lost cus tome rs a fte r de l ta

- 8 THC w as sc heduled as a con trolled30 substanc e , having “ reputational dam ages ” that are “ somewhat unrecoverable , ” likely hav ing to
la y off twenty

- five peopl e and fi ve to six contr ac tors , and not seek ing to rec over any damages

. S everal witnes ses als o testif ied ab out harm to in dividuals in the inter im without a
temporar y injunction

. T he director of govern m e n t and pub lic aff airs for the Department of
Tex as Veterans of F orei gn Wars testified about his authorization to testify on behalf of the ir 68,000 m embers and family abou t the impact of the Commissioner ’ s actions and the cessation of the selling of produc t s containing delta

- 8 TH C derived from hem p . He tes tif ied that t he p rod ucts
had been assistin g individuals with a “ variety of physical and m ental h ealth issues ” and with avoiding or getting off of opio i ds. The owner o f the manuf act uri n g company and retai l s tore s
testified about his addiction to opio i ds an d how CBD and delta

- 8 prod uct s ha d helped him. He

test ifi ed that he had be en “ drug

- free a h u ndr ed pe rce nt for eight years, with t he exception [ that
he did ] take Delta

- 8 at least three n ights a wee k, f our nigh t s a week, whi ch allows me to sleep through the night pain

- fre e o r minimal pain. ” Th e deputy stat e in spector tes tified that he was inju r ed in com bat ; that h e had P TSD, chronic migraines, a nd “ lower back pain from all the surgeries ” ; that he was a co n sumer of d el ta

- 8 p r od uc ts “ until a couple of weeks a go ” ; and that
before h e was using del ta

- 8 products, he had bee n on a “ myriad of drugs ” pr escribe d to him that
caused him to lose m emory and that h e had been addicted to opio i ds

. H e t est ified that the de l ta

- 8

pr oducts “ [did n ’ t] leave [him] in a fog like t h e medications did that [he] was on ” and that “ the
CBD and t he de lt a - 8 products rea lly wor ked wel l for [him]. ” He also tes tified tha t without t he ability t o purchase de l ta

- 8 products, his “ pain is eleva ted , ob v io usly

. ” Vie wing thi s eviden ce in
the light m ost favorable to t he trial court ’ s ruling, we con clude that t here was some evidence to

su pport t he trial court ’ s finding of probable , immi nent , and irre par able injury in the i nterim

. See Thomps on , 24 S.W.3d a t 5 76.31 The D epartment and the Commissioner al so challenge the t r ial court ’ s temporary injuncti on on the ground s that (1) t he sta tus q u o was i n place in March 2021 when the sche dules

wer e p ublished and that appelle es did not file suit until seven months later a nd (2) t he
Commissioner ’ s determination a gainst classification of a controlled substance “ requires
defe rence ” because the T CSA ’ s p urpose “ is to protect the health and safety of the public

. ” They rely on the possibility that a controlled substance may be ab use d , t hat it may not have medical
value , and that it may lead to a ddiction. T hey a lso rel y on exhibits before the trial court t hat

con tained governmental warnings about products co nt aining del ta

- 8 THC ; the imp act of the temporary injunction on the Sta t e ’ s C ompa ss io nate Use Pro gram with its “ at t endant sa fety regulat ions and pr otocol s , ” see generally Tex. Health & S afety Code § § 487 .001

– . 2 56 ; and safety concerns for in di viduals who are self

- medicat ing w ith delta

- 8 THC prod u cts.
The trial court , howev e r, fo und th at the temporary injunction wou ld preserve the

status quo prior to the Commissioner ’ s ultra vires con duct and the Departme nt ’ s AP A violation , that the harm to appellees if the temp orary injunction was not granted out weigh ed any po te ntial
harm t o the Depart ment and the Commissioner by th e issuance of the temp orary injunction , and that granting the temporary injunction would be nefit t h e public inter est. S ee Thompson,
24 S.W.3d at 578 (stat ing that trial court may balance equities and resulting ha r dship s from issuance or denial of temporar y injunction); Landry ’ s Seafood Inn & Oyster Bar

- Kema h, Inc.

v. Wiggins , 919 S.W.2d 924, 92 7 (Tex. App.

— Houston [14th Dist.] 1996, no writ) (explain ing
th at equitable principles apply to request for injunctive rel i ef ); see al so Tex. Civ. Prac. & Rem.
Code § 65.001 (stating that generally “ principles go verning courts of equity govern injunction

p roceedi ngs ” ); In re Gamble , 71 S.W.3d 313, 317 (Tex. 2002 ) (ori g. proceeding) ( “ A request for injunctive relief invokes a c ourt ’ s equi ty jurisdiction. ” ) . Although a ppellees did not file suit for32 several mo nths after the 2021 schedules were published, appe llees p res ented evidence that they
did not lear n of the Department ’ s position as to d el ta

- 8 THC u ntil t he Department p oste d the

statem ent on its website , and appelle es filed suit shortly after t he posting.
Vie wing the evidence in the light most favorable to the trial court ’ s temporar y injunction , we cannot conclude t hat the trial court abuse d its d iscret io n in g ranting i t

. S ee
Butnaru , 84 S.W.3d at 204 ; Thompso n , 24 S.W.3d at 576. Accordingl y, we overrule the Department a nd the C o mmissioner ’ s second iss ue
. 9

CO N CLUSION
For th ese reasons, we affirm the trial court ’ s order s denyin g appellant s ’ plea to the juris d iction and g ranting a t e mporary injunction

.

___ __ _________ ___________ ______ _________ __ Rosa Lopez Theofani s , Just ic e
B efo re Chief Justice Byr ne, Justic e s Tri ana and Theof anis
Affirmed
Filed: September 28, 2023

9 The Department and Commissioner ar gue th at appellees remain in the same pos ition a s the y did b efore the temporary injunction was grante d because of the DEA ’ s position concerning THC in hemp

. We expressly do not addr ess t hi s argument , wh ich goes to the merits of the part ies ’ dispute

.