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 her Official

Capacity as Commissioner of the Texas Department of State Health Services, Appellants 

v. 

Sky Marketing Corp., d/b/a Hometown Hero; Create A Cig Temple, LLC; Darrell Surif; 

and David Walden, Appellees 

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-21-006174, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

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

 The Texas Department of State Health Services (the Department) and 

Dr. Jennifer A. Schuford, in her official capacity as the Department’s commissioner (the 

Commissioner),

1 appeal from the trial court’s orders denying their plea to the jurisdiction and 

granting a temporary injunction enjoining “the effectiveness going forward of amendments to the 

terms ‘tetrahydrocannabinols’ and ‘Marihuana extract’” in the Department’s 2021 Schedule of 

Controlled Substances and the Department’s “rule stated on [its] website that Delta-8 THC in 

any concentration is considered a Schedule I controlled substance.” For the following reasons, 

we affirm the trial court’s orders denying appellants’ plea to the jurisdiction and granting a

temporary injunction. 

1 We have substituted Dr. Jennifer A. Schuford for Dr. John Hellerstedt. See Tex. R. 

App. P. 7.2(a) (automatically substituting public official’s successor as party when public official 

is party in official capacity and ceases to hold office during pendency of appeal). 
2

BACKGROUND

The Texas Controlled Substance Act

We begin with a brief overview of the commissioner’s role concerning the 

schedules of controlled substances under the Texas Controlled Substances Act (TCSA). 

See Tex. Health & Safety Code §§ 481.001–.354. The legislature designated substances in

Schedules I through V as controlled substances and delegated the duty of establishing, 

modifying, and publishing the schedules to the commissioner. See id. §§ 481.032 (containing 

most current version of schedules of controlled substances), .034 (addressing establishment and 

modification of schedules of controlled substances by commissioner), .036 (requiring 

commissioner to publish schedules); see also TCSA, 63rd Leg., R.S., ch. 429, §§ 2.03–.05, 1973 

Tex. Gen. Laws 1132, 1135–41 (listing controlled substances that legislature initially included in 

schedules). The term “controlled substance” includes “a drug, an adulterant, and a dilutant, 

listed in Schedules I through V” and “the aggregate weight of any mixture, solution, or other 

substance containing a controlled substance.” Tex. Health & Safety Code § 481.002(5).

The commissioner is statutorily required to “annually establish the schedules of 

controlled substances.” See id. § 481.034(a). The schedules must include the “complete list of 

all controlled substances from the previous schedules and modifications in the federal schedules

of controlled substances as required by Subsection (g).” Id.; see also 21 U.S.C. §§ 811

(addressing authority and criteria for classification of substances), 812 (providing schedules of 

controlled substances). Generally, “if a substance is designated, rescheduled, or deleted as a 

controlled substance under federal law” and notice is provided, “the commissioner similarly shall 

control the substance under [the TCSA].” Tex. Health & Safety Code § 481.034(g); see also, 

e.g., 40 Tex. Reg. 8050 (2015) (amending schedules of controlled substances to remove 
3

substance that administrator of Drug Enforcement Administration (DEA) removed from federal

schedules); 38 Tex. Reg. 4928 (2013) (amending schedules to include several substances 

temporarily scheduled by DEA administrator); 30 Tex. Reg. 2934 (2005) (providing notice of 

amendment to schedules to add substance following federal legislation). The commissioner, 

however, may object when a substance is “designated, rescheduled, or deleted as a controlled 

substance under federal law” by timely publishing “the reasons for the objection,” “giv[ing] all 

interested parties an opportunity to be heard,” and, after the hearing, “publish[ing] a decision, 

which is final unless altered by statute.” Tex. Health & Safety Code § 481.034(g).

In addition to modifying the schedules of controlled substances to conform with

the federal schedules, the commissioner also has independent authority to add, delete, or 

reschedule a substance on the schedules. See id. § 481.034(a). In this context, the commissioner 

must make such modifications in accordance with section 481.035, “in a manner consistent with 

this subchapter,” and “with approval from the executive commissioner.” Id.; see also

id. §§ 481.002(55) (“‘Executive commissioner’ means the executive commissioner of the Health 

and Human Services Commission.”), .035 (addressing required findings for commissioner to 

place substance in particular schedule).2 Prior to making a modification to a schedule in this 

context, the commissioner must consider eight factors and make findings as to those factors. 

Id. § 481.034(d), (e). “If the commissioner finds the substance has a potential for abuse, the 

executive commissioner shall adopt a rule controlling the substance.” Id. § 481.034(e); see 

id. § 481.001(55).

2 For example, to place a substance on Schedule I, the commissioner must find that the 

substance “has a high potential for abuse” and “has no accepted medical use in treatment in the 

United States or lacks accepted safety for use in treatment under medical supervision.” Tex. 

Health & Safety Code § 481.035(a).
4

Legalization of Hemp

Cannabidiol (CBD) and tetrahydrocannabinol (THC) are compounds in cannabis 

plants, and THC creates the feeling of intoxication. 25 Tex. Admin. Code § 300.101(6), (33) 

(2020) (Dept. of St. Health. Servs., Definitions) (defining CBD and THC). THC exists in the 

form of isomers, including delta-9 THC and delta-8 THC. Delta-9 THC is the “primary 

psychoactive component of cannabis.” Id. § 300.101(10); see id. (stating that for purposes of 

chapter, “terms delta-9 tetrahydrocannabinol and THC are interchangeable”).

In 2018, federal legislation excluded “hemp” from marihuana in the federal

schedules of controlled substances and authorized states to create their own plans to regulate the 

hemp industry. See generally Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132

Stat. 4490 (2018) (2018 Farm Bill). Hemp is defined under federal law as “the plant Cannabis

sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, 

cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 

tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 

7 U.S.C. § 1639o. The federal legislation modified the term “tetrahydrocannabinols” to not 

include “tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural 

Marketing Act of 1946 [7 U.S.C. § 1639o].” See 21 U.S.C. § 812(c)(17). Thus, the 2018 Farm 

Bill limited the control of “tetrahydrocannabinols in hemp” to “any such material that contains 

greater than 0.3% of [delta-9 THC] by dry weight.” See 85 Fed. Reg. 51639, 51641 (2020) 

(addressing change in definition of THC under 2018 Farm Bill). The 2018 Farm Bill “[did] not 
5

impact the control status of synthetically derived [THC].” “All synthetically derived [THCs] 

remain schedule 1 controlled substances.”3 See id.

In 2019, the Texas Legislature legalized hemp and hemp-derived products. See

generally Act of May 15, 2019, 86th Leg., R.S., ch. 764, § 7, 2019 Tex. Gen. Laws 2085, 2099;

see also Tex. Health & Safety Code §§ 443.204(1) (stating that “hemp-derived cannabinoids,

including cannabidiol [CBD], are not considered controlled substances or adulterants”),

481.002(5) (defining term “controlled substance” as not including “hemp, as defined by Section 

121.001, Agricultural Code), (26) (defining term “marihuana” as not including “hemp, as that 

term is defined by Section 121.001, Agriculture Code”). The Texas Legislature’s definition of 

hemp mirrors the federal definition: “the plant Cannabis sativa L. and any part of that plant, 

including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, 

and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration 

of not more than 0.3 percent on a dry weight basis.” See Tex. Agric. Code § 121.001; see also

25 Tex. Admin. Code § 300.101(1) (defining “acceptable hemp THC level” as “delta-9 

tetrahydrocannabinol content concentration level on a dry weight basis, that, when reported with 

the accredited laboratory’s measurement of uncertainty, produces a distribution or range that 

includes a result of 0.3 percent or less”).

Prior to the 2019 legislation, the Department’s schedules designated THC

naturally contained in the cannabis plant as well as synthetic equivalents, marihuana, and 

3 The parties dispute whether delta-8 THC is synthetic, and the Department and the 

Commissioner represent that it is “common knowledge that delta-8 is only sold in synthetic 

form” and ask this Court to take judicial notice of “that common knowledge.” We decline to 

take judicial notice and expressly do not resolve the parties’ dispute as to whether delta-8 THC is 

synthetic because it is unnecessary to the disposition of this appeal concerning the trial court’s 

jurisdiction and temporary injunctive relief. See Tex. R. App. P. 47.1.
6

marihuana extract as Schedule I controlled substances. See 42 Tex. Reg. 1271 (2017); see also

81 Fed. Reg. 90194 (2017). Conforming to the federal and state legislation, the Commissioner’s 

2019 Schedule of Controlled Substances reflected that hemp and THC derived from hemp as 

defined by federal law were not Schedule I controlled substances:

*(23) Marihuana

The term marihuana does not include hemp, as defined in section 297A of the 

Agricultural Marketing Act of 1946.

. . .

*(31) Tetrahydrocannabinols;

meaning tetrahydrocannabinols naturally contained in a plant of the genus 

Cannabis (cannabis plant), except for tetrahydrocannabinols in hemp (as defined 

under section 297A of the Agricultural Marketing Act of 1946), as well as 

synthetic equivalents of the substances contained in the cannabis plant, or in the 

resinous extractives of such plant, and/or synthetic substances, derivatives, and 

their isomers with similar chemical structure and pharmacological activity to 

those substances contained in the plant, such as the following . . . .

See 44 Tex. Reg. 2517 (2019) (providing 2019 version of schedules of controlled substances).

Following the United States Department of Agriculture’s (USDA) approval of a 

state plan for hemp production, the executive commissioner of the Department of Health and

Human Services adopted rules and procedures related to the manufacture, distribution, and sale 

of consumable hemp products. See 25 Tex. Admin. Code §§ 300.100–.606 (2020) (Dep’t of 

St. Health Servs., Manufacture, Distribution, and Retail Sale of Consumable Hemp Products);

see also Tex. Health & Safety Code § 443.051 (requiring executive commissioner to adopt rules 

and procedures necessary to administer and enforce Chapter 443, which concerns manufacture,

distribution, and sale of consumable hemp products); Texas Dep’t of St. Health Servs. v. Crown 

Distrib. LLC, No. 03-20-00463-CV, 2021 Tex. App. LEXIS 6283, at *1–2 (Tex. App.—Austin
7

Aug. 5, 2021, no pet.) (mem. op.) (considering rule adopted under Chapter 443). Production and 

the sale of consumable hemp products in Texas followed.

4

Commissioner’s Objection to the DEA’s Interim Final Rule

In September 2020, the Commissioner published an objection to the DEA’s

Interim Final Rule (IFR) “amending the regulatory controls over marihuana, 

tetrahydrocannabinols, and other marihuana-related constituents in the Controlled Substances 

Act.” 45 Tex. Reg. 6613 (2020); see generally 85 Fed. Reg. 51639 (2020). The IFR’s stated

purpose was to codify in the DEA’s regulations the statutory amendments to the federal 

controlled substances act that were made by the 2018 Farm Bill “regarding the scope of 

regulatory controls over marihuana, tetrahydrocannabinols, and other marihuana-related 

constituents” and conform the DEA’s regulations to the statutory amendments that had “already 

taken effect.” 85 Fed. Reg. at 51639. The IFR “[did] not add additional requirements to the 

regulations” and “did no more than incorporate the statutory amendments.” Id.

Purportedly acting pursuant to Section 481.034(g) of the TCSA, the

Commissioner objected to the IFR’s modification of two definitions in the DEA’s regulations

as follows:

The interim final rule modifies 21 CFR 1308.11(d)(31) by adding language 

stating that the definition of “Tetrahydrocannabinols” does not include “any 

material, compound, mixture or preparation that falls within the definition of 

4 According to appellees’ pleadings, following the enactment of the 2018 Farm Bill and 

the Texas legislation, “an entirely new market for [hemp] products emerged.” In Texas, there are 

“hemp businesses all across the supply chain, from cultivation to sale, and all areas in between,”

the Department “has issued licenses for hundreds of [consumable hemp products] processors and 

manufacturers,” and the Department has registered “thousands” of retailers of consumable 

hemp products.
8

hemp set forth in 7 U.S.C 1639o.” The commissioner objects to this 

modification.

The interim final rule modifies 21 CFR 1308.11(d)(58) by stating that the 

definition of “Marihuana Extract” is limited to extracts “containing greater than 

0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis.” The 

commissioner objects to this modification.

See Tex. Health & Safety Code § 481.034(g) (authorizing commissioner to object when federal

law designates, reschedules, or deletes controlled substance on schedules). The Commissioner 

objected to the two definitions that the DEA proposed “to the extent that the definitions allow for 

the presence or addition of tetrahydrocannabinols aside from the presence of [delta-9 THC]. 

Multiple [THC] isomers and variants may have pharmacological or psychoactive properties.” 

According to the Commissioner, delta-8 THC derived or extracted from hemp or CBD produces

a higher concentration product that is subject to control.

In October 2020, the Commissioner held a brief public hearing via Zoom on her

objections; no comments were received during the hearing; and in January 2021, the 

Commissioner published her decision that Texas did not adopt the DEA’s “modifications of the 

two definitions” as to the federal schedules. See 46 Tex. Reg. 873 (2021).

In March 2021, the Commissioner published the 2021 Schedule of Controlled 

Substances with the following changes (shown in bold) to Schedule I substances from the prior 

year as to THC and marihuana extract:

*(31) Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained

in a plant of the genus Cannabis (cannabis plant), except for up to 0.3 percent 

delta-9-tetrahydrocannabinols in hemp (as defined under Texas Agriculture 

Code 121), as well as synthetic equivalents of the substances contained in the 

cannabis plant, or in the resinous extractives of such plant, and/or synthetic 

substances, derivatives, and their isomers with similar chemical structure and

pharmacological activity to those substances contained in the plant, such as the 

following . . .
9

*(58) Marihuana extract, meaning an extract containing one or more cannabinoids 

that has been derived from any plant of the genus Cannabis, except for extracts

derived from hemp (as defined under Texas Agriculture Code 121) 

containing up to 0.3% delta-9-tetrahydrocannabinol on a dry weight basis, 

other than separated resin (whether crude or purified) obtained from the plant.

46 Tex. Reg. 1763 (2021). The schedule modified its previous version by referring to the 

definitions in the Texas Agriculture Code, instead of the federal statutes, and reworded the 

definitions to designate THC as controlled, “except for up to 0.3 percent” delta-9 THC in hemp, 

and marihuana extract as controlled, except for extracts derived from hemp “containing up to

0.3% delta-9-tetrahydrocannabinol.” Cf. 44 Tex. Reg. 2517 (2019).

In October 2021, the Department also posted the following statement on its 

website as to “Consumable Hemp Products”:

Texas Health & Safety Code Chapter 443 (HSC 443), established by House Bill 

1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not 

exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, 

including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are

considered Schedule I controlled substances.

Litigation Ensued

Shortly after the Department posted this statement on its website, appellees sued 

the Department and the Commissioner seeking temporary and permanent injunctions and 

declaratory relief. In their second amended petition, appellees alleged that (1) the Commissioner 

acted ultra vires by adopting any amendments to “tetrahydrocannabinols” and “Marihuana

extract” in the 2021 Schedule of Controlled Substances because the Commissioner did not 

comply with statutorily required procedures under the TCSA, see Tex. Health & Safety Code 

§§ 481.034–.035, and (2) the amendments to the definitions and the Department’s October 2021 

statement were invalid rules under the Texas Administrative Procedure Act (APA), see generally
10

Tex. Gov’t Code §§ 2001.021–.041 (setting out procedures for APA rulemaking). Appellees 

alleged that delta-8 THC that was derived from hemp was de-scheduled and no longer deemed a 

controlled substance and that the Department and the Commissioner had improperly amended 

the schedules of controlled substances to make delta-8 THC derived from hemp an illegal

Schedule I controlled substance.

5 Among its requested relief, appellees sought to temporarily 

enjoin the “effectiveness going forward” of the amendments to the terms 

“tetrahydrocannabinols” and “Marihuana extract” in the Department’s 2021 Schedule of 

Controlled Substances.

The Department and Commissioner filed a plea to the jurisdiction with evidence, 

seeking to have appellees’ claims dismissed on the grounds that appellees lacked standing and

their claims were barred by sovereign immunity. Appellants contended that the Commissioner 

did not act ultra vires because she acted within her authority under Section 481.034(g) of the 

TCSA and that appellees did not have standing because they sought relief from criminal 

enforcement, which was not within the Department’s responsibility, and they did not allege that 

the Department was attempting to revoke their licenses or that they were facing civil penalties. 

The evidence attached to the plea included copies of the Department’s published schedules of 

controlled substances from 2017 to 2021, the Commissioner’s September 2020 notice of 

objection, the January 2021 decision order, the DEA’s IFR, an analysis of changes in cannabis 

potency from 1995 to 2014, and other reports and articles on delta-8 THC.

The trial court held a hearing on the plea to the jurisdiction and appellees’ request 

for temporary injunctive relief. Appellees’ witnesses were the executive director of the Texas 

5 As counsel for appellees explained during the hearing, the 2021 schedule made the 

change from prohibiting delta-9 THC in concentrations exceeding 0.3 percent to “prohibiting all 

forms of THC, except for delta-9 THC in concentrations not exceeding 0.3 percent.”
11

Hemp Foundation; the director of government and public affairs for the Department of Texas 

Veterans of Foreign Wars; a retailer of products containing delta-8 THC; the chief financial 

officer of Sky Marketing; an owner of a company that manufactures products containing delta-8 

THC and retail stores selling delta-8 products; and the deputy state inspector for the State of 

Texas. Appellees’ witnesses testified about the Commissioner’s modifications to the schedules, 

their involvement with delta-8 THC products, and how the Commissioner’s modifications to the 

schedules had impacted them. The evidence showed that after hemp was legalized in Texas, 

products containing delta-8 THC derived from hemp were being sold in Texas and used by

individuals to manage pain and other health issues, including dependency on opioids. Both sides

offered exhibits that the trial court admitted, but appellants did not call any witnesses.

Following the hearing, the trial court denied appellants’ plea to the jurisdiction 

and granted appellees’ request for a temporary injunction, enjoining “the effectiveness going 

forward of amendments to the terms ‘tetrahydrocannabinols’ and ‘Marihuana extract’ in the 

[Department’s] 2021 Schedule of Controlled Substance.” The trial court ordered the Department 

to “remove from its currently published Schedule of Controlled Substances the most recent 

modifications” of the definitions and any subsequent publications and “enjoin[ed] the 

effectiveness going forward of the rule stated on [the Department’s] website that Delta-8 THC in 

any concentration is considered a Schedule I controlled substance.” This appeal followed.

ANALYSIS

In two issues, the Department and the Commissioner contend that the trial court 

erred when it denied their plea to the jurisdiction and abused its discretion when it granted 

temporary injunctive relief.
12

Plea to the Jurisdiction

Standards of Review and Applicable Law

“Sovereign immunity protects the State of Texas and its agencies and 

subdivisions from suit and from liability.” Matzen v. McLane, 659 S.W.3d 381, 387–88 (Tex. 

2021) (citing PHI, Inc. v. Texas Juv. Just. Dep’t, 593 S.W.3d 296, 301 (Tex. 2019)). “Because 

the assertion of sovereign immunity implicates the courts’ jurisdiction, immunity is properly 

raised in a plea to the jurisdiction.” Id. at 388 (citing Houston Belt & Terminal Ry. v. City of 

Houston, 487 S.W.3d 154, 160 (Tex. 2016)).

To defeat a plea to the jurisdiction that challenges the pleadings, the plaintiff 

suing a state agency or a state official must “affirmatively demonstrate” in its pleadings that 

sovereign immunity has been waived or that it does not apply. Texas Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “We construe the pleadings liberally in favor of 

the plaintiffs and look to the pleaders’ intent.” Id. A plea to the jurisdiction may also challenge 

the existence of jurisdictional facts. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 

635 (Tex. 2012). “In those cases, the court can consider evidence as necessary to resolve any 

dispute over those facts, even if that evidence ‘implicates both the subject matter jurisdiction of 

the court and the merits of the case.’” Id. (quoting Miranda, 133 S.W.3d at 226). The trial 

court’s review of the evidence “mirrors that of a traditional summary judgment motion.” Id.; see

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). “We review orders 

on pleas to the jurisdiction de novo.” Matzen, 659 S.W.3d at 388 (citing University of Tex. 

M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019)); see Miranda, 

133 S.W.3d at 226.
13

The jurisdictional issues that appellants raise also involve statutory construction, 

which is a question of law that we review de novo. See First Am. Title Ins. v. Combs, 

258 S.W.3d 627, 631 (Tex. 2008). We begin “‘with the Legislature’s words,’ looking first to 

their plain and common meaning.” El Paso Healthcare 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. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 

2010) (construing “text according to plain and common meaning unless a contrary intention is 

apparent from the context or unless such a construction leads to absurd results” (citing City of 

Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008))). “In conducting this analysis, ‘we

look at the entire act, and not a single section in isolation.’” Murphy, 518 S.W.3d at 418. This 

“text-based approach to statutory construction requires us to study the language of the specific 

provision at issue, within the context of the statute as a whole, endeavoring to give effect to 

every word, clause, and sentence.” Id. (quoting Ritchie v. Rupe, 443 S.W.3d 856, 867 

(Tex. 2014)).

Standing

As part of their first issue, the Department and the Commissioner argue that the 

trial court erred in denying their plea to the jurisdiction because appellees do not have standing.

Standing is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. 

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

852 S.W.2d 440, 445–46 (Tex. 1993) (discussing requirement that party has standing to invoke 

trial court’s subject matter jurisdiction). “The issue of standing focuses on whether a party has a 

sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.”
14

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). To establish standing, a 

plaintiff must show (1) an actual or imminent injury in fact that is (2) fairly traceable to 

the challenged conduct and (3) likely to be redressed by the plaintiff’s requested remedy. 

Heckman v. Williamson County, 369 S.W.3d 137, 154–55 (Tex. 2012); see also California v.

Texas, 141 S. Ct. 2104, 2113–116 (2021) (analyzing whether individual plaintiffs had standing).

The Department and the Commissioner challenge appellees’ standing on the 

ground that they cannot redress appellees’ alleged harm. They argue that there is no enforcement 

connection between the Department and the schedules of controlled substances, that the 

Department is not the governmental entity responsible for criminal enforcement of controlled 

substances, that courts enjoin state officials and not laws or executive orders, and that “the relief 

that [appellees] would need to redress their alleged injury [is] beyond anything the trial court or 

this Court can order the Commissioner” to do. See Tex. Health & Safety Code § 481.003

(authorizing “director” to “adopt rules to administer and enforce this chapter”); see also id.

§ 481.002(11) (“‘Director’ means the director of the Department of Public Safety or an employee 

of the department designated by the director.”). Appellants contend that “the DEA has also 

concluded that Delta-8 THC is [a] schedule I controlled substance,” making the trial court’s 

temporary injunction “merely advisory.”

The Department, however, is the state agency that is required to maintain the 

schedules and has statutory authority to regulate consumable hemp products. See, e.g., Tex. 

Health & Safety Code §§ 443.103 (requiring license from Department to manufacture hemp and

requiring application to be accompanied by certain information including “any other information 

required by department rule”), .151 (requiring consumable hemp products to be tested “for any 

other substance prescribed by the department”), 481.034(a); see also 25 Tex. Admin. Code 
15

§§ 300.100 (Dep’t of St. Health Servs., Purpose) (“This chapter implements Texas Health and 

Safety Code, Chapter 443, regulating the manufacture, distribution, and retail sale of consumable 

hemp and consumable hemp products in the State of Texas.”), 300.201(a) (Dep’t of St. Health

Servs., Application for License or Renewal) (requiring person to hold license issued by 

Department before engaging in manufacture, processing, or distribution of consumable hemp 

products). Among its regulatory roles concerning the hemp industry, the Department has 

authority to impose administrative penalties against persons who hold licenses or are registered 

under the chapter and violate the chapter. See 25 Tex. Admin. Code § 300.606(a) (Dep’t of 

St. Health Servs., Administrative Penalty); see also Tex. Health & Safety Code § 481.301

(authorizing Department to impose administrative penalty on person who violates specified

sections or “rule or order adopted under any of those specified sections”).

Appellees alleged in their pleadings and presented evidence of injury “fairly 

traceable” to the Commissioner’s amendments to the schedules of controlled substances, which 

the Commissioner is statutorily required to “annually establish” and maintain, and they seek

prospective relief. See Tex. Health & Safety Code § 481.034(a); Heckman, 369 S.W.3d at 154–

55. Although appellees’ pleadings allege potential harm from criminal enforcement of the 

“improper modifications to the terms,” they also allege that “such enforcement will effectively 

ban [them] from conducting further business related to their sale of certain legal hemp products”

and that the appellees’ businesses have lost and will continue to lose revenue, good will, and 

reputation and have had to reduce their workforce. Appellees’ evidence presented at the hearing 

also showed ongoing injuries to businesses manufacturing and selling products with delta-8 THC 

derived from hemp, including loss of customers, market share, and revenue, and to individuals 

because of the loss of effective treatment for certain health conditions; the evidence showed 
16

those injuries were fairly traceable to the challenged schedule modifications and the 

Department’s October 2021 statement. Appellees’ requested relief to enjoin the effectiveness of 

the modifications going forward likely would redress these alleged ongoing injuries. 

See Heckman, 369 S.W.3d at 154–55.

Viewing the pleadings liberally in favor of appellees and the evidence in the light 

most favorable to them, we conclude that the trial court did not err when it determined that they

had standing to assert their claims against the Department and the Commissioner. See Garcia, 

372 S.W.3d at 635 (explaining that review of evidence in plea-to-the-jurisdiction context mirrors 

that of motion for traditional summary judgment); Miranda, 133 S.W.3d at 226.

Ultra Vires Claim

As part of their first issue, the Department and the Commissioner also challenge

the trial court’s jurisdiction over appellees’ ultra vires claim against the Commissioner6 on the 

grounds that the claim “lacks merit as a matter of law and seeks impermissible retrospective 

relief” and that “the Commissioner’s actions were authorized by Chapter 481 of the Texas Health 

and Safety Code.” Specifically, they argue that the Commissioner “did not exceed [her]

authority under Section 481.034(g)” and that the Commissioner was not required to comply with 

the other subsections of Section 481.034. See Tex. Health & Safety Code § 481.034.

“Texas law recognizes ‘ultra vires’ claims seeking prospective injunctive relief 

against individual government officials in their official capacities.” Matzen, 659 S.W.3d at 388 

6 In their briefing, appellees confirm that their ultra vires claim is not against the 

Department. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (“[T]he 

UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device for 

deciding cases already within a court’s jurisdiction.’” (quoting Texas Parks & Wildlife Dep’t 

v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011))); Sawyer Tr., 354 S.W.3d at 388 (agreeing that 

“there is no general right to sue a state agency for a declaration of rights”).
17

(citing City of El Paso v. Heinrich, 284 S.W.3d 366, 373, 376 (Tex. 2009)); see Phillips 

v. McNeill, 635 S.W.3d 620, 628–29 (Tex. 2021) (discussing ultra vires suits against government 

officials); Chambers–Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 349–55 (Tex.

2019)) (same). To successfully bring an ultra vires claim, a plaintiff must plead and prove “that 

the defendant government official ‘acted without legal authority or failed to perform a ministerial 

act.’” Matzen, 659 S.W.3d at 388 (quoting Heinrich, 284 S.W.3d at 372). “An officer acts

without legal authority ‘if he exceeds the bounds of his granted authority or if his acts conflict

with the law itself.’” Id. (quoting Houston Belt & Terminal Ry., 487 S.W.3d at 158); see

Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015) (stating that whether 

official’s conduct was ultra vires “depends on what the statute required”).

Appellees argue that they have alleged facts that, if true, demonstrate that the 

Commissioner, acting in her official capacity, exceeded her statutory authority and violated 

Section 481.034 when she amended the schedules of controlled substances based on her 

objection to the DEA’s IFR. Appellees alleged that Subsection (g) did not apply, see Tex. 

Health & Safety Code § 481.034(g); and that the Commissioner was required to comply with the 

other subsections of Section 481.034 before modifying the schedules, see id. §§ 481.034(a), (b), 

(d), (e), (h), .035(a), which she failed to do. According to appellees, the Commissioner may not 

invoke Section 481.034(g) as a basis to circumvent the prescribed process for amending the 

schedules under the other subsections of Section 481.034, that the Commissioner acted ultra 

vires by violating Section 481.034 when she amended the schedules purportedly in response to 

the IFR, and that their requested relief is prospective.

Section 481.034 sets out mandatory requirements before the Commissioner may

add or delete a substance from the schedules of controlled substances, and appellees have alleged
18

in their pleadings that the Commissioner failed to follow the statutory requirements when she 

modified the definitions of THC and marihuana extract in the schedules. Among the statutory 

prohibitions in Section 481.034, the Commissioner may not add a substance to the schedules that 

the legislature has deleted from the schedules. See id. § 481.034(c)(1) see also Tex. Gov’t Code 

§ 311.016(5) (“‘May not’ imposes a prohibition and is synonymous with ‘shall not.’”). 

Appellees rely on this provision and the statutory definitions of hemp to assert that the 

Commissioner acted ultra vires when she modified the schedules because the legislature removed 

hemp and hemp-derived products, which appellees allege include delta-8 THC products, from

the schedules of controlled substances. See Tex. Agric. Code § 121.001 (defining “hemp”); see

also Tex. Health & Safety Code §§ 443.204(1) (providing that rules adopted by executive 

commissioner regulating sale of consumable hemp products must, to extent allowable by federal

law, reflect principle that “hemp-derived cannabinoids, including cannabidiol, are not considered 

controlled substances or adulterants”), 481.002(5) (defining “controlled substances” to not 

include hemp, as defined in Agricultural Code, or THC in hemp). This allegation—based on the 

prohibition in Subsection (c)—is sufficient to invoke the trial court’s jurisdiction. See Houston 

Belt & 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 his acts conflict with the 

law itself”).

Another provision in Section 481.034 that appellees rely on to support the trial 

court’s jurisdiction is Subsection (b), which provides that “[e]xcept for alterations in schedules 

required by Subsection (g),” the Commissioner “may not make an alteration to a schedule unless 

the Commissioner holds a public hearing on the matter in Austin and obtains approval from the 

executive commissioner.” See Tex. Health & Safety Code § 481.034(b); see also Tex. Gov’t 
19

Code § 311.016(5). Appellees contend that Subsection (g) did not apply and, therefore, that the 

Commissioner was required to comply with Subsection (b).7

Beginning with the plain language of the phrase stating the exception in 

Subsection (b), we observe that it limits its scope to alterations to the schedules that are 

“required” in Subsection (g). See Webster’s Third New Int’l Dictionary 1929 (defining “require”

to mean “to demand as necessary or essential (or on general principles or in order to comply with 

or satisfy some regulations)”). Thus, the plain language makes clear that the exception only 

applies when the Commissioner does not object to a federal law designating a substance as a 

controlled substance or rescheduling or deleting a substance because in that situation, the 

Commissioner is required to make alterations to conform the state schedules to mirror the federal

law. See Tex. Health & Safety Code § 481.034(g) (stating that commissioner “similarly shall 

designate, reschedule, or delete the substance” unless commissioner objects); see also Tex. Gov’t 

Code § 311.016(2) (“‘Shall’ imposes a duty.”), (5); City of Austin v. Southwestern Bell Tel. Co., 

92 S.W.3d 434, 442 (Tex. 2002) (stating that court generally construes “shall” “as mandatory,

unless legislative intent suggests otherwise”); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 

(Tex. 2001) (stating that “shall” “generally recognized as mandatory, creating a duty or 

obligation”). It follows that, when the exception does not apply, Subsection (b) mandates that

the Commissioner hold a hearing on the matter in Austin and obtain the approval of the 

executive commissioner before making an alteration to the schedule. See Tex. Health & Safety 

Code § 481.034(b).

7 Even if the Commissioner properly objected to the IFR, appellees assert that the 

Commissioner in her stated objection to the IFR did not notify the public that a hearing would be 

held “on the matter” of the Department’s intention to make substantive modifications to the 

definitions of THC and marihuana extract on the schedules. See Tex. Health & Safety Code 

§ 481.034(b).
20

The Department and the Commissioner argue that Subsection (g) of Section 

481.034 authorized the Commissioner’s actions because the IFR “did designate and reschedule

the substances” by changing the definition of THC and marihuana extract in the federal schedule 

and that the IFR was “out-of-sync” with the federal statute.

8 But, even if we assume that the IFR

triggered the applicability of Subsection (g) when it was published in the federal register, the

plain language of Subsection (g) does not authorize the Commissioner to modify the schedules

except when she is modifying the schedules to conform them with federal modifications. When 

the Commissioner objects to a modification in the federal schedules, the Commissioner does not 

have to change the state schedules to conform them with the federal schedules and may maintain 

the state schedules as they are, but it does not follow from this authority that she is also 

authorized to modify the state schedules based on an objection to a federal modification without 

following the additional requirements in Section 481.034 for doing so.

The plain language of Subsection (a) makes this clear:

(a) The commissioner shall annually establish the schedules of controlled 

substances. These annual schedules shall include the complete list of all 

controlled substances from the previous schedules and modifications in the 

federal schedules of controlled substances as required by Subsection (g). Any 

further additions to and deletions from these schedules, any rescheduling of 

substances and any other modifications made by the commissioner to these 

schedules of controlled substances shall be made:

(1) in accordance with Section 481.035;

(2) in a manner consistent with this subchapter; and

(3) with approval of the executive commissioner.

8 The IFR’s summary stated that it “merely conforms DEA’s regulations to the statutory 

amendments to [the federal controlled substance act] that have already taken effect, and that it 

does not add additional requirements to the regulations.” It also explains that the DEA had “no 

discretion with respect to these amendments.”
21

Id. § 481.034(a) (emphasis added); see id. § 481.035. In other words, the statute requires the 

Commissioner, except for required modifications under Subsection (g) to conform the state 

schedules with the federal schedules, to comply with the other subsections of Section 481.034, 

including making required findings under Section 481.035, for “any further additions to and 

deletions from these schedules.” See id. § 481.034(a).

Among the other statutory requirements, Subsection (d) requires the 

Commissioner to consider eight factors when “making a determination regarding a substance,”

Subsection (e) requires the Commissioner to make findings as to those factors and the executive 

commissioner to adopt a rule controlling the substance if the Commissioner finds the substance 

has a potential for abuse, and Subsection (h) requires the Commissioner to provide written notice 

to the director and state licensing agencies having jurisdiction over practitioners. See id.

§ 481.034(d) (stating that commissioner “shall consider” listed factors), (e) (stating that 

commissioner “shall make findings with respect to those factors” and that executive

commissioner “shall adopt a rule controlling the substance”), (h) (requiring commissioner to give 

written notice when commissioner designates, deletes, or reschedules substance under 

Subsection (a) to director and state licensing agencies); see also Tex. Gov’t Code § 311.016(2),

(5); Southwestern Bell Tel. Co., 92 S.W.3d at 442; Wilkins, 47 S.W.3d at 494.

We also observe that appellees supported their ultra vires allegations with 

evidence. See Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635 (stating that trial court’s 

review of evidence in plea-to-the-jurisdiction context mirrors that of traditional summary 

judgment review and that if fact issue exists, plea should be denied). For example, the executive 

director of the Texas Hemp Foundation testified that the Commissioner “should’ve posted in the 

Texas Register directly that we’re going to have a hearing on a decision to reschedule legal 
22

hemp-derived Delta-8 [THC] onto the controlled substances list and didn’t. They failed to do 

that.” See Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (stating that state official with 

“some discretion to interpret and apply law may nonetheless act ‘without legal authority,’ and 

thus ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict with the 

law itself” (quoting Houston Belt & Terminal Ry., 487 S.W.3d at 158)).

At this stage of the case, our inquiry concerns the trial court’s jurisdiction and not 

the merits of the parties’ disputes. Construing the pleadings liberally in favor of appellees and 

reviewing the evidence in the light most favorable to them, we conclude that the trial court did 

not err in denying appellants’ plea to the jurisdiction as to appellees’ ultra vires claim. See 

Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 226.

APA Claim

As part of their first issue, the Department and the Commissioner also challenge

the trial court’s jurisdiction over appellees’ rule challenge brought under the APA. See generally

Tex. Gov’t Code §§ 2001.021–.038. Appellants argue that the “challenged actions by the 

Commissioner are not subject to a rule challenge under the APA” or the APA’s procedural 

requirements, that the schedules “have the force of legislative action,” that the October 2021 

statement on the Department’s website is valid and not a rule because the statement is correct 

information that “combats misinformation,” and that the posted statement has no legal effect

because “nobody can be charged with or convicted of violating the statement, and the statement 

cannot be otherwise enforced.”

Appellees’ APA claim is asserted against the Department. See id. § 2001.038(c)

(requiring state agency to be made party to action); Holt v. Texas Dep’t of Ins.—Div. of 
23

Workers’ 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

Department invokes the trial court’s “subject matter jurisdiction if appellees have challenged the 

‘validity’ or ‘applicability’ of a rule under the APA and they allege that the ‘rule or its threatened 

application interferes with or impairs, or threatens to interfere with or impair, a legal right or 

privilege of the plaintiff.’” Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 

(Tex. App.—Austin 2011, no pet.) (quoting Tex. Gov’t Code § 2001.038(a)). “Determining

whether appellees have done so” “does not require us to delve into the merits of the claims.” Id.

(citing Texas Dep’t of Pub. Safety v. Salazar, 304 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. App.—Austin 

2009, no pet.) (“[T]he APA declaratory-judgment vehicle of section 2001.038 is a legislative 

grant of subject-matter jurisdiction.”).

The jurisdictional inquiry concerns whether the Department’s challenged 

statement and modifications to the 2021 schedule constitute a rule under the APA and, if so, 

whether the rule or its threatened application interferes with or impairs appellees’ legal rights or 

privileges. See Entertainment Publ’ns, 292 S.W.3d at 720. A rule is defined under the APA as 

“a state agency statement of general applicability” that “implements, interprets, or proscribes law 

or policy” or “describes the procedure or practice requirements of a state agency,” but the 

definition “does not include a statement regarding only the internal management or organization 

of a state agency and not affecting private rights or procedures.” Tex. Gov’t Code

§ 2001.003(6)(A). “‘[T]he core concept’ in distinguishing between an agency statement that 

concerns only ‘internal management’ and a ‘rule’ is whether the agency statement has ‘a binding 

effect on private parties.’” See Texas Tel. Ass’n v. Public Util. Comm’n of Tex., 653 S.W.3d 227, 
24

266 (Tex. App.—Austin 2022, no pet.) (quoting Texas State Bd. of Pharmacy v. Witcher, 

447 S.W.3d 520, 529 (Tex. App.—Austin 2014, pet. denied)). “[T]o constitute a ‘rule’ under 

[the APA] definition, ‘an agency statement interpreting law must bind the agency or otherwise 

represent its authoritative position in matters that impact personal rights.’” Id. “When an 

agency promulgates a rule without complying with the proper rule-making procedures, the rule is 

invalid.” El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 715 

(Tex. 2008) (citing Tex. Gov’t Code § 2001.035).

Here, the Department does not contend that it complied with the APA’s rulemaking procedures when it modified the 2021 schedules or posted the statement in October 2021 

on its website that delta-8 THC was a Schedule I controlled substance. See Tex. Gov’t Code 

§§ 2001.021–.041 (setting out procedures for state agencies to adopt rules); see id. § 2001.035 

(stating that rule is voidable unless state agency adopts it in substantial compliance with Sections 

2001.0225 through 2001.034). The Department instead contends that the trial court does not 

have jurisdiction over appellees’ APA claim on the grounds that the publication of schedules and 

the October statement on its website were not rules and that the Commissioner is required to 

comply with Sections 481.034 and 481.035 of the TCSA when amending schedules, instead of 

the procedural rulemaking requirements of the APA. See Tex. Health & Safety Code 

§ 481.032(a) (stating that commissioner “shall establish and modify the following schedules of 

controlled substances under this subchapter” (emphasis added)).

But Section 481.034(e) expressly requires the executive commissioner to adopt a 

rule controlling a substance that the commissioner has found has a potential for abuse after 

considering the statutory factors. See id. § 481.034(e) (stating that executive commissioner

“shall adopt a rule controlling the substance” when commissioner “finds the substance has a
25

potential for abuse”). Thus, the legislature expressly contemplated that rulemaking would occur 

to adopt a rule controlling a substance. Id.

In its temporary injunction order, the trial court found that appellees had asserted 

a valid claim under the APA based on the Department’s statement on its website “wherein [the 

Department] proclaims that Delta-8 in any concentration is considered a Schedule I controlled 

substance.” Consistent with the trial court’s finding, we need go no further than to observe that 

the Department’s statement prescribes law, is generally applicable to the public at large, does not 

pertain to the Department’s internal management, and impacts personal rights, including 

appellees’ alleged rights. See Tex. Gov’t Code § 2001.003(6)(A); Texas Tel. Ass’n, 653 S.W.3d 

at 266; Entertainment Publ’ns, 292 S.W.3d at 720; see also Tex. Health & Safety Code 

§ 443.001(1) (defining “consumable hemp product” to mean “food, a drug, a device, or a 

cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more 

hemp-derived cannabinoids, including cannabidiol”). This statement represents the 

Department’s authoritative position on a matter that, according to appellees’ pleadings and 

evidence, threatens to interfere with or impair appellees’ legal rights or privileges. See Texas 

Tel. Ass’n, 653 S.W.3d at 266. Appellees’ evidence also showed the ongoing impact of the 

Department’s modifications to the schedules and posted statement on the businesses selling 

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

revenue, and on the loss of treatment for individuals suffering from certain health conditions.

Viewing the pleadings and evidence under the applicable standards of review, we

conclude that the trial court did not err in concluding that it had jurisdiction over appellees’ APA 

claim against the Department. See Tex. Gov’t Code § 2001.038; see also Teladoc, Inc. v. Texas 

Med. Bd., 453 S.W.3d 606, 620–23 (Tex. App.—Austin 2014, pet. denied) (concluding that 
26

Texas Medical Board’s pronouncements in letter was rule); Entertainment Publ’ns, 292 S.W.3d 

at 720–23 (concluding in context of challenge to trial court’s jurisdiction that statements in 

letters from Comptroller constituted rule). Thus, we conclude that the trial court did not err 

when it denied the plea to the jurisdiction as to appellees’ APA claim.

Having concluded that the trial court did not err when it denied the plea to the 

jurisdiction as to appellees’ ultra vires and APA claims, we overrule the Department and the 

Commissioner’s first issue.

Temporary Injunction

In their second issue, the Department and the Commissioner challenge the trial 

court’s temporary injunction.

Standard of Review and Applicable Law

“A temporary injunction is an extraordinary remedy and does not issue as a matter 

of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). To obtain a temporary

injunction, an applicant must plead and prove three elements: (1) a cause of action against the 

defendant; (2) a probable right to the relief sought; and (3) “a probable, imminent, and 

irreparable injury in the interim.” Id. “An injury is irreparable if the injured party cannot be 

adequately compensated in damages or if the damages cannot be measured by any certain 

pecuniary standard.” Id. “A temporary injunction’s purpose is to preserve the status quo of the 

litigation’s subject matter pending a trial on the merits.” Id.; see Universal Health Servs., Inc. 

v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no pet). The “status quo” is 

defined as “the last, actual, peaceable, non-contested status [that] preceded the pending 

controversy.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding).
27

A trial court has broad discretion in deciding whether to grant or deny a 

temporary injunction, and its ruling is subject to reversal only for a clear abuse of that discretion. 

See Butnaru, 84 S.W.3d at 204; Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). We view 

the evidence in the light most favorable to the trial court’s order, indulging every reasonable 

inference in its favor, and “determine whether the order was so arbitrary as to exceed the bounds 

of reasonable discretion.” Thompson, 24 S.W.3d at 576; see Butnaru, 84 S.W.3d at 204 (stating 

that appellate court may not substitute its judgment for that of trial court “unless the trial court’s 

action was so arbitrary that it exceeded the bounds of reasonable discretion”). A trial court does 

not abuse its discretion if some evidence reasonably supports its decision. See Thompson, 

24 S.W.3d at 576.

Did the trial court abuse its discretion when it granted the temporary injunction?

Among their challenges to the trial court’s temporary injunction, the Department 

and the Commissioner argue that the trial court’s temporary injunction was improper as a matter 

of law because it enjoined the effectiveness of the modifications to the state schedules of 

controlled substances going forward. They argue that courts must enjoin parties, not laws, and 

that “[t]he trial court cannot ask [appellants] to change the law.” This Court, however, has 

affirmed analogous temporary injunctive relief. See Crown Distrib., 2021 Tex. App. LEXIS 

6283, at *21 (affirming temporary injunction in part that enjoined Department from enforcing

rule); Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 

997 S.W.2d 651, 653–54 (Tex. App.—Austin 1999, writ dism’d w.o.j.) (affirming temporary

injunction enjoining agencies from relying on memorandum from state agency defining illegal 
28

“gambling devices” as that term was used in statute). Thus, we conclude that the relief granted

in the temporary injunction was not improper as a matter of law.

The Department and the Commissioner also contend that appellees “failed to

establish any of the three required elements necessary to obtain a temporary injunction.” As to 

the first two elements, they rely on their position that the trial court did not have jurisdiction 

over appellees’ claims. In addition to its finding as to appellees’ APA claim stated above, the 

trial court made the following finding as to the first and second elements to support its 

temporary injunction:

1. [Appellees] have asserted a valid ultra vires claim against [the 

Commissioner] for declaratory and injunctive relief for [her] amendments to 

the definitions for the terms “tetrahydrocannabinols” and “Marihuana extract” 

as reflected in the 2021 Department of State Health Services’ Schedule of 

Controlled Substances.

. . . .

3. [Appellees] have shown a probable right to declaratory and injunctive 

relief because [the Commissioner’s] action amending the definitions failed to 

meet the requirements found in § 481.034 of the Texas Health & Safety Code, and 

[the Department]’s rule as stated on its website concerning Delta-8 failed to 

comply with the rule making requirements found in the APA.

As discussed above, we similarly have concluded that appellees pleaded valid claims against the 

Department and Commissioner and, based on our review of the evidence as stated above, we 

conclude that appellees presented some evidence of a probable right to relief. See Thompson, 

24 S.W.3d at 576 (stating that trial court does not abuse its discretion if some evidence

reasonably supports its decision).

As to the third element to support its temporary injunction—probable, imminent, 

and irreparable injury in the interim—the trial court found:
29

4. As a result of [the Commissioner’s] ultra vires actions and [the 

Department’s] APA violations, [appellees] will suffer imminent and irreparable 

harm such as brand erosion, reputational damage, including loss of customers’

goodwill, unsalvageable loss of nationwide customers, loss of market share, loss 

of marketing techniques, employee force reduction, revenue lost and costs

incurred by not being able to manufacture, process, distribute, or sell hemp

products that fall within the newly adopted definitions for “tetrahydrocannabinol”

and/ or “Marihuana extract,” having to relocate or shut down part of [appellees’] 

businesses and contributing to the insolvency of [their] vendors and customers, 

and subjecting all of [appellees’] employees and similarly situated company 

employees and individual consumers to potential arrest and other criminal 

penalties. In addition, [individual appellees], along with other similarly situated 

individual consumers throughout Texas, will have no effective treatment to 

anxiety, depression, insomnia, migraines, loss of appetite, chronic pain, and 

nausea. [Appellees], along with these other individuals, may be forced to seek 

other dangerous alternatives, like opioids or street drugs.

5. [Appellees] cannot be adequately compensated in damages because the 

damages are not quantifiable and there is no monetary relief that can be obtained 

from [the Department and Commissioner]. Such injuries would be compounded 

should [the Department and Commissioner] not be immediately restrained from

their activities.

The Department and the Commissioner argue that the evidence showed that 

appellees who “began manufacturing, selling, or using delta-8 THC in 2019” “gambled on their 

own interpretation of the statute, not any interpretation put forth by [the Department] or the 

Commissioner.” Appellees, however, presented evidence supporting the trial court’s findings as 

to the third element for temporary injunctive relief. For example, as to evidence of harm to the 

businesses without injunctive relief in the interim, the retailer testified that he had been selling

products containing delta-8 THC, which was over 50 percent of his business, but that he stopped 

doing so after receiving a letter from the City of Copperas Cove to cease selling the products.

The chief financial officer of Sky Marketing testified similarly to its having a 50 percent

decrease in revenue and lost customers after delta-8 THC was scheduled as a controlled
30

substance, having “reputational damages” that are “somewhat unrecoverable,” likely having to 

lay off twenty-five people and five to six contractors, and not seeking to recover any damages.

Several witnesses also testified about harm to individuals in the interim without a 

temporary injunction. The director of government and public affairs for the Department of 

Texas Veterans of Foreign Wars testified about his authorization to testify on behalf of their 

68,000 members and family about the impact of the Commissioner’s actions and the cessation of 

the selling of products containing delta-8 THC derived from hemp. He testified that the products 

had been assisting individuals with a “variety of physical and mental health issues” and with 

avoiding or getting off of opioids. The owner of the manufacturing company and retail stores

testified about his addiction to opioids and how CBD and delta-8 products had helped him. He 

testified that he had been “drug-free a hundred percent for eight years, with the exception [that 

he did] take Delta-8 at least three nights a week, four nights a week, which allows me to sleep 

through the night pain-free or minimal pain.” The deputy state inspector testified that he was 

injured in combat; that he had PTSD, chronic migraines, and “lower back pain from all the 

surgeries”; that he was a consumer of delta-8 products “until a couple of weeks ago”; and that 

before he was using delta-8 products, he had been on a “myriad of drugs” prescribed to him that 

caused him to lose memory and that he had been addicted to opioids. He testified that the delta-8

products “[didn’t] leave [him] in a fog like the medications did that [he] was on” and that “the 

CBD and the delta-8 products really worked well for [him].” He also testified that without the 

ability to purchase delta-8 products, his “pain is elevated, obviously.” Viewing this evidence in 

the light most favorable to the trial court’s ruling, we conclude that there was some evidence to

support the trial court’s finding of probable, imminent, and irreparable injury in the interim. See 

Thompson, 24 S.W.3d at 576.
31

The Department and the Commissioner also challenge the trial court’s temporary 

injunction on the grounds that (1) the status quo was in place in March 2021 when the schedules 

were published and that appellees did not file suit until seven months later and (2) the 

Commissioner’s determination against classification of a controlled substance “requires 

deference” because the TCSA’s purpose “is to protect the health and safety of the public.” They 

rely on the possibility that a controlled substance may be abused, that it may not have medical 

value, and that it may lead to addiction. They also rely on exhibits before the trial court that 

contained governmental warnings about products containing delta-8 THC; the impact of the 

temporary injunction on the State’s Compassionate Use Program with its “attendant safety 

regulations and protocols,” see generally Tex. Health & Safety Code §§ 487.001–.256; and 

safety concerns for individuals who are self-medicating with delta-8 THC products.

The trial court, however, found that the temporary injunction would preserve the 

status quo prior to the Commissioner’s ultra vires conduct and the Department’s APA violation,

that the harm to appellees if the temporary injunction was not granted outweighed any potential 

harm to the Department and the Commissioner by the issuance of the temporary injunction, and 

that granting the temporary injunction would benefit the public interest. See Thompson,

24 S.W.3d at 578 (stating that trial court may balance equities and resulting hardships from

issuance or denial of temporary injunction); Landry’s Seafood Inn & Oyster Bar-Kemah, Inc. 

v. Wiggins, 919 S.W.2d 924, 927 (Tex. App.—Houston [14th Dist.] 1996, no writ) (explaining 

that equitable principles apply to request for injunctive relief); see also Tex. Civ. Prac. & Rem. 

Code § 65.001 (stating that generally “principles governing courts of equity govern injunction 

proceedings”); In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002) (orig. proceeding) (“A request for 

injunctive relief invokes a court’s equity jurisdiction.”). Although appellees did not file suit for 
32

several months after the 2021 schedules were published, appellees presented evidence that they 

did not learn of the Department’s position as to delta-8 THC until the Department posted the

statement on its website, and appellees filed suit shortly after the posting.

Viewing the evidence in the light most favorable to the trial court’s temporary 

injunction, we cannot conclude that the trial court abused its discretion in granting it. See 

Butnaru, 84 S.W.3d at 204; Thompson, 24 S.W.3d at 576. Accordingly, we overrule the 

Department and the Commissioner’s second issue.

9

CONCLUSION

For these reasons, we affirm the trial court’s orders denying appellants’ plea to the 

jurisdiction and granting a temporary injunction.

__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Affirmed

Filed: September 28, 2023

9 The Department and Commissioner argue that appellees remain in the same position as

they did before the temporary injunction was granted because of the DEA’s position concerning

THC in hemp. We expressly do not address this argument, which goes to the merits of the 

parties’ dispute.