Texas Department of State Health Services John Hellerstedt, in His Official Capacity as Commissioner of the Texas Dshs v. Crown Distributing LLC America Juice Co., LLC Custom Botanical Dispensary, LLC 1937 Apothecary, Llc

Supreme Court of Texas

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No. 21-1045

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Texas Department of State Health Services; John Hellerstedt, in

His Official Capacity as Commissioner of the Texas DSHS,

Appellants,

v.

Crown Distributing LLC; America Juice Co., LLC; Custom

Botanical Dispensary, LLC; 1937 Apothecary, LLC,

Appellees

═══════════════════════════════════════

On Direct Appeal from the

345th District Court of Travis County, Texas

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Argued March 22, 2022

JUSTICE BOYD delivered the opinion of the Court.

JUSTICE YOUNG filed a concurring opinion, in which Chief Justice

Hecht, Justice Devine, and Justice Blacklock joined.

The Texas Constitution guarantees that “[n]o citizen of this State

shall be deprived of life, liberty, property, privileges or immunities, or in

any manner disfranchised, except by the due course of the law of the

land.” TEX. CONST. art. I, § 19. The plaintiffs in this case assert that this

guarantee invalidates a new Texas law that prohibits the processing and

manufacturing of smokable hemp products. The trial court agreed and

permanently enjoined the defendants from enforcing the challenged law,

and the defendants directly appealed to this Court. 1 Because we

conclude that the due-course clause does not protect the interest the

plaintiffs assert, we reverse the trial court’s judgment.

I.

Background

The federal Agriculture Improvement Act of 2018 2—commonly

referred to as the 2018 Farm Bill—classified “hemp” as an agricultural

product and generally authorized each state to decide whether and how

to regulate it within the state’s borders. The bill delegated to the U.S.

Department of Agriculture the responsibility for approving each state’s

hemp-regulation plan and for implementing a federal plan for any state

that elects not to adopt its own. Although “marihuana” remains a

Schedule 1 substance under the federal Controlled Substances Act, the

2018 Farm Bill excludes “hemp” and hemp products that are cultivated,

produced, manufactured, and sold in compliance with federal

regulations and the relevant state’s federally approved plan. 3

1 See TEX. GOV’T CODE § 22.001(c) (“An appeal may be taken directly to

the supreme court from an order of a trial court granting or denying an

interlocutory or permanent injunction on the ground of the constitutionality of

a statute of this state.”).

2Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat.

4490 (2018).

3 See 21 U.S.C. §§ 802(16)(B)(i) (defining “marihuana” to exclude

“hemp”), 812 Schedule 1(c)(10) (listing “[m]arihuana” as Schedule 1 substance);

7 U.S.C. § 1639o(1) (defining “hemp”); 7 C.F.R. §§ 990.2–.20; 84 Fed. Reg. 58,

522–63; see also generally Meina Heydari, The Budding Hemp Industry: The

Effect of Texas House Bill 1325 on Employment Drug Policies, 15 HEALTH L. &

2

The Texas Legislature adopted a hemp plan at its next legislative

session in 2019. Through House Bill 1325, 4 the legislature enacted

chapters 121 and 122 of the Texas Agriculture Code, generally

permitting and regulating the cultivation and handling of hemp within

the state. TEX. AGRIC. CODE §§ 121.001–122.404. The bill also added

chapter 443 to the Texas Health and Safety Code, generally permitting

and regulating the manufacture and sale of consumable hemp products

within the state. TEX. HEALTH & SAFETY CODE §§ 443.001–.207.

Chapter 443 expressly authorizes the executive commissioner of the

Texas Health and Human Services Commission to “adopt rules and

procedures necessary to administer and enforce this chapter,” consistent

with the state plan. Id. § 443.051. 5

The Texas hemp plan generally permits Texans to cultivate,

handle, transport, export, process, manufacture, distribute, sell, and

purchase hemp and hemp-containing products within the state. 6 But as

POL’Y BRIEF 1, 11 (2020); David V. Patton, A History of United States Cannabis

Law, 34 J.L. & HEALTH 1, 20 n.119 (2020); Lynn Garcia & Peter Stout, Hemp

or Marijuana? The Importance of Accurate and Reliable Forensic Analysis to

the Fair Administration of Justice, JUDGES’ J., Winter 2021, at 22.

4 Act of May 22, 2019, 86th Leg., R.S., ch. 764, 2019 Tex. Gen. Laws

2085.

Chapters 121, 122, and 443 are expressly interrelated: chapter 443

5

requires the commissioner’s rules and procedures to be consistent with “an

approved state plan submitted” under chapter 121, TEX. HEALTH & SAFETY

CODE § 443.051(1), and chapter 121 in turn requires the state plan to comply

with chapters 122 and 443, TEX. AGRIC. CODE § 121.003(2), (3).

6The plan imposes various restrictions and limitations and requires a

license or registration for some hemp-related activities. See TEX. AGRIC. CODE

§§ 122.101(a) (permitting license holders to “cultivate” and “handle” hemp

within the state and “transport” hemp outside the state), .301(a) (permitting

3

an exception to this otherwise broad authorization, the plan expressly

prohibits the “processing” or “manufacturing” of hemp-containing

products “for smoking.” 7 Specifically, chapter 122 prohibits any state

agency from authorizing “a person to manufacture a product containing

hemp for smoking.” TEX. AGRIC. CODE § 122.301(b). And chapter 443

requires the commissioner’s rules to reflect the “principle” that “the

processing or manufacturing of a consumable hemp product for smoking

is prohibited.” TEX. HEALTH & SAFETY CODE § 443.204(4). Based on this

mandate, the commissioner adopted rule 300.104, which prohibits the

“manufacture” and “processing” of “consumable hemp products for

smoking.” 25 TEX. ADMIN. CODE § 300.104. 8

manufacture of nonconsumable hemp products), .302(a) (permitting

possession, transport, sale, and purchase of legally produced nonconsumable

hemp products within the state), .303 (generally permitting retail sale of

nonconsumable hemp products legally cultivated and manufactured outside of

the state), .304 (generally permitting transport and export of nonconsumable

hemp products across state lines); TEX. HEALTH & SAFETY CODE §§ 443.101

(permitting license holders to “process” and “manufacture” consumable hemp

and hemp products within the state), .201 (permitting possession, transport,

sale, and purchase of legally processed or manufactured consumable hemp

products), .2025(b) (permitting sale of consumable hemp products by registered

persons), .205(a) (permitting distribution of properly labeled consumable hemp

products), .206 (generally permitting retail sale of consumable hemp products

legally processed and manufactured outside of the state), .207 (permitting

transport and export of consumable hemp products across state lines).

7The bill defines “smoking” to mean “burning or igniting a substance

and inhaling the smoke or heating a substance and inhaling the resulting

vapor or aerosol.” TEX. HEALTH & SAFETY CODE § 443.001(11).

8The rule also prohibits the “distribution[] or retail sale of consumable

hemp products for smoking.” 25 TEX. ADMIN. CODE § 300.104. The plaintiffs

challenged these two restrictions not only on constitutional due-course

grounds, but also on the ground that these restrictions exceed the

commissioner’s statutory authority because the statutes only prohibit (and

4

The plaintiffs in this case (collectively, the Hemp Companies) are

Texas-based entities that manufacture, process, distribute, and sell

hemp products—including smokable hemp products—in Texas. 9 They

filed this suit against the Texas Department of State Health Services

and its commissioner (collectively, the Department), seeking a

declaration that section 443.204(4) and rule 300.104 violate the Texas

Constitution’s due-course clause and an injunction prohibiting their

enforcement. 10 After initially granting a temporary injunction against

only authorize the rules to prohibit) the “processing” and “manufacture” of such

products. The commissioner initially opposed that argument but has now

withdrawn that opposition in this Court. Thus, that portion of the trial court’s

judgment enjoining the rule’s prohibition against the “distribution” or “retail

sale” of such products is not before us.

9 Crown Distributing, LLC is a Texas-based distributor (and previously

a manufacturer) of hemp products, including smokable hemp products like

hemp cigarillos, hemp flower, hemp pre-rolls, and hemp wraps and rolling

paper. Wild Hempettes LLC is a Texas-based affiliate of Crown that assumed

Crown’s manufacturing business and now manufactures smokable hemp

products. America Juice Co., LLC is a Texas-based affiliate of Crown that also

manufactures and distributes consumable hemp products, including smokable

hemp products. Custom Botanical Dispensary, LLC is a Texas-based retail

store that sells a variety of hemp products, including smokable hemp products

and raw hemp flower. 1937 Apothecary, LLC is a Texas-based affiliate of

Custom Botanical that manufactures topical, ingestible, and smokable hemp

products.

10 The Hemp Companies initially challenged section 122.301(b) on the

same due-course grounds but later dropped that challenge after the

Department argued that section 122.301(b) does not apply to the Hemp

Companies because it applies only to the manufacture of nonconsumable hemp

products. As a result, the trial court’s final judgment did not address or enjoin

the enforcement of section 122.301(b). The Department now argues in this

Court that section 122.301(b) in fact does apply to the Hemp Companies and

that they lack standing to pursue their claims because their alleged injury is

not “redressable” in light of their failure to challenge the constitutionality of

that section. See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex.

5

the rule’s enforcement, 11 the trial court rendered a final judgment

declaring that section 443.204(4) violates the Texas Constitution and

that rule 300.104 is invalid in its entirety and enjoining the Department

2018) (explaining that a plaintiff lacks standing to pursue injunctive relief if

the injunction “could not possibly remedy his situation” (quoting Heckman v.

Williamson County, 369 S.W.3d 137, 155 (Tex. 2012))). According to the

Department, the Hemp Companies lack standing because, even if we were to

affirm the trial court’s judgment enjoining enforcement of section 443.204(4)

and rule 300.104, section 122.301(b) would still prohibit the Department from

authorizing the Hemp Companies “to manufacture a product containing hemp

for smoking.”

But a court’s ability to affect “the behavior of the defendant towards the

plaintiff” and even “‘to effectuate a partial remedy’ satisfies the redressability

requirement.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (quoting

Hewitt v. Helms, 482 U.S. 755, 761 (1987); Church of Scientology of Cal. v.

United States, 506 U.S. 9, 13 (1992)). Because the final judgment here enjoins

the Department from enforcing section 443.204(4) and rule 300.104, the

Department cannot prohibit the Hemp Companies from manufacturing or

processing consumable hemp products for smoking. See 25 TEX. ADMIN. CODE

§ 300.104. To the extent section 122.301(b) remains enforceable after the trial

court’s judgment, such that the Department “may not authorize a person to

manufacture a product containing hemp for smoking,” TEX. AGRIC. CODE

§ 122.301(b) (emphasis added), the final judgment nevertheless enjoins the

State from prohibiting the Hemp Companies from manufacturing or processing

consumable hemp products for smoking. The judgment thus provides the

Hemp Companies with at least “a partial remedy” sufficient to sustain their

standing.

11 Although the Hemp Companies sought a temporary injunction

against enforcement of both statutory sections and the rule, the trial court

granted the injunction only against enforcement of the rule. The Department

appealed that order, and the court of appeals affirmed the injunction only

against enforcement of the rule’s prohibition of the “distribution” and “retail

sale” of smokable hemp products. Tex. Dep’t of State Health Servs. v. Crown

Distrib., No. 03-20-00463-CV, 2021 WL 3411551, at *8 (Tex. App.—Austin Aug.

8, 2021, no pet.) (mem. op.). The Hemp Companies have since been selling

smokable hemp in Texas under the injunction’s protection.

6

from enforcing the statute or the rule. We accepted the Department’s

direct appeal.

II.

Due Course of Law

The Hemp Companies assert that the state’s ban against the

manufacturing and processing of smokable hemp products in Texas

violates the Constitution’s due-course clause because the ban has no

rational connection to any possible governmental interest 12 and its real-

world effect is so burdensome as to be oppressive in light of any

governmental interest. 13 They rely in particular on our decision in Patel

12 To the extent, for example, that the ban is intended to reduce negative

health effects or other harmful consequences resulting from the use of

smokable hemp products, the Hemp Companies contend that the ban against

in-state manufacturing or processing of such products does nothing to promote

that purpose, particularly when the state’s hemp plan freely permits the

importation, distribution, sale, possession, and use of smokable hemp products

within the state. And to the extent the ban is intended to minimize the

difficulties law enforcement might have in distinguishing smokable hemp from

smokable marijuana (which remains illegal in Texas), the ban does nothing to

promote that purpose for the same reason: banning only the in-state

manufacturing or processing of such products will not reduce the use of such

products within the state. By analogy, the Hemp Companies contend that

banning the in-state production of smokable hemp is as irrational as banning

the in-state production of beef: the ban might force beef processors to move out

of Texas and import their products into the state, but Texans would still sell,

buy, and eat just as much beef. For the reasons explained below, we do not pass

judgment on this no-rational-basis argument.

13 The Hemp Companies submitted evidence, for example, that

smokable hemp products are by far the most expensive and popular of all

consumable hemp products, and the inability to manufacture and process them

in Texas would cause the Hemp Companies to lose many millions of dollars in

profits. And although they could (and, indeed, have already taken steps to)

move their operations across the state line into Oklahoma, that transition

would also cost them millions of dollars and cause dozens of Texas employees

7

v. Texas Department of Licensing and Regulation, 469 S.W.3d 69, 90

(Tex. 2015) (holding that state licensing requirements for commercial

eyebrow threading were “so burdensome that they are oppressive”).

Before we can address the Hemp Companies’ no-rational-basis

and oppressiveness arguments, however, we must determine whether

the Hemp Companies have alleged the deprivation of an interest the

due-course clause protects. See Honors Acad., Inc. v. Tex. Educ. Agency,

555 S.W.3d 54, 61 (Tex. 2018) (“Before any substantive or procedural

due-process rights attach, however, the citizen must have a liberty or

property interest that is entitled to constitutional protection.”). 14 The

Department argued in the trial court and continues to argue in this

Court that the due-course clause does not protect the Hemp Companies’

interest in manufacturing or processing smokable hemp products.

Under our “two-step inquiry,” we address this argument first. Tex. S.

Univ. v. Villareal, 620 S.W.3d 899, 905 (Tex. 2021). 15 Because we agree

to lose their Texas jobs. For the reasons explained below, we do not pass

judgment on the Hemp Companies’ oppressiveness argument.

14 See also Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 15

(Tex. 2015) (“Before any substantive or procedural due-process rights attach,

however, the Petitioners must have a liberty or property interest that is

entitled to constitutional protection.”); Spring Branch I.S.D. v. Stamos, 695

S.W.2d 556, 560 (Tex. 1985) (“[T]he strictures of due process apply only to the

threatened deprivation of liberty and property interests deserving the

protection of the federal and state constitutions.”).

15 See Mosley v. Tex. Health & Hum. Servs. Comm’n, 593 S.W.3d 250,

264 (Tex. 2019) (“A two-part test governs a due-process claim: we must

determine whether petitioners ‘(1) ha[ve] a liberty or property interest that is

entitled to procedural due process protection; and (2) if so, we must determine

what process is due.’” (quoting Univ. of Tex. Med. Sch. at Hous. v. Than, 901

S.W.2d 926, 929 (Tex. 1995))); see also Logan v. Zimmerman Brush Co., 455

8

with the Department that the due-course clause does not protect the

Hemp Companies’ asserted interest, we do not reach the inquiry’s

second step. 16

A. Work-related interests

The Hemp Companies assert that the state’s ban on the

manufacturing and processing of smokable hemp products

impermissibly infringes on their “liberty” and “property” rights to “work

and earn a living.” This Court and the U.S. Supreme Court have at times

recognized that the due-course and due-process clauses can protect

work-related economic interests, which have sometimes been

characterized as the “right to earn a living,” Smith v. Decker, 312 S.W.2d

632, 633 (Tex. 1958), or the right to engage in a “chosen profession,”

Greene v. McElroy, 360 U.S. 474, 492 (1959).

U.S. 422, 428 (1982) (“[W]e are faced with what has become a familiar two-part

inquiry: we must determine whether Logan was deprived of a protected

interest, and, if so, what process was his due.”); Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process

apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.”).

16 We did not address the first-step issue in Patel because the

defendants in that case did not argue that the plaintiffs failed to assert a

protected interest. Instead, they filed a summary-judgment motion in which

they assumed for purposes of the motion “that the [eyebrow threaders] had a

protected, but not fundamental, liberty interest” and focused their arguments

only on the second-step issue. See Patel v. Tex. Dep’t of Licensing & Regul., 464

S.W.3d 369, 381 n.12 (Tex. App.—Austin 2012), rev’d, 469 S.W.3d 69 (Tex.

2015). Because the trial court granted the motion and the court of appeals

affirmed, the parties never presented to this Court the issue of whether the

eyebrow threaders asserted a protected interest. As a result, we referred in

Patel only generally to the eyebrow threaders’ “economic interests,” Patel, 469

S.W.3d at 75, 86, which they claimed were affected by “economic legislation” or

“economic regulation statutes,” id. at 80, 87.

9

But protected work-related interests, although sometimes

broadly stated, are not without limits. Neither “property rights nor

contract rights are absolute,” and “[c]ertain kinds of business may be

prohibited” altogether. Nebbia v. New York, 291 U.S. 502, 523, 528

(1934) (footnotes omitted). 17 The due-course clause is not so broad as to

protect every form and method in which one may choose to work or earn

a living, and some work-related interests do not enjoy constitutional

protection at all. Many cases have thus described the constitutionally

protected work-related interest more narrowly as a right to “engage in

any of the common occupations of life,” Meyer v. Nebraska, 262 U.S. 390,

399 (1923) (emphasis added), 18 or as a right to follow or pursue a “lawful

calling, business, or profession,” Dent v. West Virginia, 129 U.S. 114, 121

(1889) (emphasis added). 19

17 See, e.g., Baccus v. Louisiana, 232 U.S. 334, 337–38 (1914) (affirming

that states may, “without violating the equal protection or due process of law

clause of the 14th Amendment, . . . forbid the sale by itinerant venders of ‘any

drug, nostrum, ointment, or application of any kind’”). Because the U.S.

Constitution’s “due process” clause uses language similar to the Texas

Constitution’s “due course” clause, we may find guidance in the federal courts’

due-process decisions. Villarreal, 620 S.W.3d at 905.

18 See also Mosley, 593 S.W.3d at 264; Than, 901 S.W.2d at 929–30

(quoting Roth, 408 U.S. at 572); Roth, 408 U.S. at 572 (quoting Meyer, 262 U.S.

at 399); Truax v. Raich, 239 U.S. 33, 41 (1915) (referring to the “right to work

for a living in the common occupations of the community”) (emphasis added)).

19The Hemp Companies assert that the due-course clause protects—

and that section 433.204(4) and rule 300.104 violate—their “substantive”

work-related rights, but they do not argue that the section or rule deprives

them of the clause’s “procedural” protections. Our concurring colleagues

suggest that we should reconsider in some future case whether the Texas

Constitution’s due-course clause guarantees anything other than procedural

protections. See post at ___ (YOUNG, J., concurring). Because the Department

10

To decide this case, we need not determine precisely what

constitutes a “common occupation” or a “lawful calling.” Nor must we

decide how or whether Texas’s due-course clause protects all such

occupations or callings. It is enough to observe that the due-course

clause, like its federal counterpart, has never been interpreted to protect

a right to work in fields our society has long deemed “inherently vicious

and harmful.” Murphy v. California, 225 U.S. 623, 628, 630 (1912)

(stating that such occupations are “neither protected by the state nor

the Federal Constitution”). Historically, for example, gambling and

racetrack ownership were not “one of life’s ‘common occupations,’” and

the desire to make a living by owning such an enterprise does not fall

within the “liberty” or “property” interests the due-process and due-

course clauses protect. Medina v. Rudman, 545 F.2d 244, 251 (1st Cir.

1976) (explaining that an “investment in such an enterprise, when

permitted at all, is plainly open to the strictest kind of supervision”).

Citizens are “bound to know” that such occupations can “lawfully be

regulated out of existence.” Murphy, 225 U.S. at 630 (rejecting

has not raised this argument or otherwise urged us to reconsider our precedent

on that issue, we do not address or take any position on it here.

By the same token, because the Hemp Companies have not asserted

that the section or rule deprives them of any procedural rights, we do not

address whether or how the due-course clause might provide procedural

protections in connection with their asserted interest. We hold that the Hemp

Companies have not alleged a liberty or property interest to which the due-

course clause affords substantive protection, but we do not address whether or

how the clause might procedurally protect related liberty or property interests.

See Villarreal, 620 S.W.3d at 908–10 (assuming due-course clause provided

procedural protections against the deprivation of a student’s interest in

completing a graduate education while concluding it provided no “substantive

protection” for that interest).

11

constitutional challenge to an ordinance prohibiting “the keeping of

billiard or pool tables for hire”).

Similarly, some occupational interests exist only because the

government has created them or made them available. For due-process

and due-course purposes, such an interest is properly characterized as

a form of “property” interest. Villareal, 620 S.W.3d at 908. 20 But to be

constitutionally protected, a property interest must be “vested.” Honors

Acad., 555 S.W.3d at 61. When an interest “is predicated upon the

anticipated continuance” of an existing law and is “subordinate to” the

legislature’s right to change the law and “abolish” the interest, the

interest is not vested. City of Dallas v. Trammell, 101 S.W.2d 1009, 1013

(Tex. 1937), superseded on other grounds by constitutional amendment

as stated in Degan v. Bd. of Trs. of Dall. Police & Fire Pension Sys., 594

S.W.3d 309, 313–14 (Tex. 2020).

So, for example, because the right to operate a charter school

“rests entirely on the Legislature’s decision to continue the [charter-

school] system,” a charter-school operator has no vested property

interest in its charter. Honors Acad., 555 S.W.3d at 62–63. Similarly, a

government-issued permit to operate a private club that sells alcohol “is

not a vested property right but is a privilege that is granted and enjoyed

subject to regulations prescribed by the Legislature.” Tex. Liquor

Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.

20 A “liberty interest,” by contrast, “may arise from the Constitution

itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from

an expectation or interest created by state laws or policies.” Wilkinson v.

Austin, 545 U.S. 209, 221 (2005) (citations omitted).

12

1970). 21 As “a general rule,” constitutional due-process protections do

not “extend” to such privileges. House of Tobacco v. Calvert, 394 S.W.2d

654, 656–57 (Tex. 1965). 22

B. The Hemp Companies’ asserted interest

The Hemp Companies have described their interest in various

ways. Most broadly, they have asserted a right to “economic liberty” and

a “freedom to work and earn a living.” Less broadly, they have described

a “right to pursue a lawful calling” and “to engage in any of the common

occupations of life.” More narrowly, they have complained that Texas

law deprives them “of the ability to manufacture in Texas a product that

is lawful”; most narrowly, to engage in “the manufacture and processing

of smokable hemp products from exempt portions of the cannabis plant.”

The Department focuses on the narrowest description, asserting that

the “Hemp Companies have neither a liberty interest nor a vested

property interest in manufacturing or processing consumable hemp

products for smoking.”

In some sense, all of these descriptions—the most general and the

most specific, as well as those falling between the two—accurately

21 See also Tex. Dep’t of Motor Vehicles v. Fry Auto Servs., 584 S.W.3d

138, 143–44 (Tex. App.—Austin 2018, no pet.) (“Appellees’ ‘lawful calling,’

unlike that protected in Patel, is wholly a creation of the government. As such,

it does not fall under the shield of economic liberty addressed in Patel.”); Limon

v. State, 947 S.W.2d 620, 626 (Tex. App.—Austin 1997, no writ) (“Because an

alcoholic beverage permit is merely a privilege, applicants do not have a

constitutionally protected interest in obtaining it and are not entitled to due

process of law.”).

22Once granted, a privilege that cannot be taken away except for good

cause may rise to the level of a vested property right that the due-process and

due-course clauses protect. House of Tobacco, 394 S.W.2d at 657.

13

identify the interest the Hemp Companies are asserting. 23 We have not

directly addressed the question of how generally or specifically courts

should define asserted constitutional interests, but we need not fully

resolve that question here. It is enough for present purposes to conclude

that we should define the interest as specifically as necessary to

accurately reflect the constitution’s language (“liberty” and “property”),

our precedential construction of that language, and the realities of the

deprivation the Hemp Companies are claiming.

Defining the interest in this case broadly, as a “right to economic

freedom” or a right to “make a living” or to “engage in an occupation of

one’s choosing,” might sufficiently fit within the due-course clause’s

broad references to “liberty” or “property,” but it would not reflect the

well-established precedent recognizing those interests’ limitations to

“common occupations” and “lawful callings,” which exclude an interest

in an “inherently harmful and vicious” economic endeavor, or a right

that is not vested. Nor do the broad characterizations accurately reflect

the realities of the deprivation the Hemp Companies assert. They do not

23 See Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479, 1489–

90 (2008) (describing how the plaintiff in Raich v. Gonzales, 500 F.3d 850, 863

(9th Cir. 2007), claimed a right to “preserve her life” by using marijuana, while

the government defined the interest as “the right to obtain and use marijuana,”

and contending that the “dirty little secret of constitutional law is that, purely

as a descriptive matter, they were both correct”); Marc P. Florman, The

Harmless Pursuit of Happiness: Why “Rational Basis with Bite” Review Makes

Sense for Challenges to Occupational Licenses, 58 LOY. L. REV. 721, 740 (2012)

(discussing St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied,

571 U.S. 952 (2013), and asserting that “[o]ne could just as accurately define

the right the monks are attempting to assert in broad terms (economic freedom

or liberty of contract), in narrow terms (the right to sell wooden caskets), and

in terms somewhere in between (e.g., the right to work in one’s chosen

profession without unnecessary regulation)”).

14

contend generally that the state’s hemp plan unconstitutionally restricts

their right to make a living or even to do so by manufacturing hemp

products. In fact, they concede that, even with the prohibition against

the production of smokable hemp products, Texas law permits them to

be lawfully engaged in the hemp-products industry, although not nearly

as profitably. Instead, they narrowly challenge only the specific

prohibition against the manufacture and processing of smokable hemp

products. We therefore narrowly define their asserted interest

accordingly and ask whether the right to engage in that economic

endeavor enjoys the due-course clause’s protection.

C. Production of smokable hemp products

The Hemp Companies argue that the due-course clause protects

their asserted interest in a common and lawful occupation because, until

the enactment of House Bill 1325, Texas law always permitted

manufacturing and processing smokable hemp products. But in making

that argument, the Hemp Companies conflate the substance defined as

“hemp” under House Bill 1325 (that is, the substance the Companies

want to use to manufacture and process smokable hemp products) and

the substance commonly known as “hemp” throughout American

history. To explain, we must conduct a fairly thorough review of the

historical background leading up to the statutes now at issue.

15

1. Hemp, Cannabis, CBD, and THC

Initially, the term “hemp” was used generically to refer to a

variety of fibrous plants. 24 After Carl Linnaeus classified the

Cannabis genus of plants in 1753, 25 the term was used to refer to various

species within that genus, 26 and ultimately more specifically to the

species Cannabis sativa L. 27 Hemp—as the cannabis plant was

commonly called—was a “staple crop” in the American colonies and used

throughout early American history to produce a number of products

including clothing and other textiles, rope, paper, and medicines. 28 After

the cotton gin became more widely available in the early 1800s, however,

the hemp industry began a steady decline. 29

The Cannabis sativa L. plant naturally produces chemical

compounds called cannabinoids. 30 One such cannabinoid is cannabidiol,

24See Ryan Golden, Dazed & Confused: The State of Enforcement of

Marijuana Offenses After the Texas Hemp Farming Act, 72 BAYLOR L. REV.

737, 739 (2020).

25 See Patton, supra note 3, at 4.

See Few v. State, 588 S.W.2d 578, 581 (Tex. Crim. App. 1979)

26

(“Cannabis sativa L. is the name bestowed on the Indian hemp plant by the

Swedish botanist Carolus Linnaeus.”); Golden, supra note 24, at 739.

See generally Capuano v. State, No. 05-04-01832-CR, 2006 WL

27

321964, at *4 (Tex. App.—Dallas Feb. 13, 2006, no pet.); Patton, supra note 3,

at 4.

28See Golden, supra note 24, at 739; Patton, supra note 3, at 3;

Marijuana: A Study of State Policies & Penalties, Nat’l Governors’ Conf. Ctr.

for Pol’y Rsch. & Analysis (Nov. 1977) at 1,

https://www.ojp.gov/pdffiles1/Digitization/43880NCJRS.pdf.

29 See Marijuana: A Study of State Policies & Penalties, supra note 28,

at 1.

30 See Heydari, supra note 3, at 4–5.

16

commonly referred to as CBD. 31 CBD is credited by some with providing

relief for a variety of ailments when consumed, including inflammation,

neurodegenerative diseases, epilepsy, seizures, pain, anxiety, psychosis,

depression, insomnia, acne, and drug addictions. 32 Importantly, CBD

does not have psychoactive or psychotropic effects, and thus consuming

CBD does not cause intoxication or produce a “high.” 33

The Cannabis sativa L. plant also produces another cannabinoid

called Delta-9 tetrahydrocannabidiol, commonly referred to as THC. 34

THC may also provide relief for certain ailments, including nausea,

spasms, appetite loss, and neuropathic pain. 35 But more famously, THC

has a psychoactive effect that produces a high when ingested by

humans. 36 Historically, certain anatomical parts of the Cannabis sativa

L. plant naturally contained more THC than others. In particular, the

leaves, buds, and flowers typically contained higher levels of THC, while

the mature stalks and seeds contained much lower levels. 37

31 See id. at 5.

See id. at 4–5; Robert M. Lydon, High Anxiety: Forcing Medical

32

Marijuana Patients to Choose Between Employment and Treatment, 63 B.C. L.

REV. 623, 625 n.12 (2022).

33 See Patton, supra note 3, at 20 n.118; Heydari, supra note 3, at 4–5.

See Few, 588 S.W.2d at 581; Lydon, supra note 32, at 625 n.12;

34

Heydari, supra note 3, at 4–5.

35 See Lydon, supra note 32, at 625 n.12; Heydari, supra note 3, at 4–5.

36 See Few, 588 S.W.2d at 581; Lydon, supra note 32, at 625 n.12.

37 See Golden, supra note 24, at 739; Garcia & Stout, supra note 3, at

22–23.

17

2. Government regulation and control

Within the United States, the use of the Cannabis sativa L. plant

as an intoxicant developed initially along the Gulf Coast and the Rio

Grande in the early 1900s. 38 Around the same time, Americans

increasingly began referring to the plant by the name “marihuana” (or

“marijuana”), 39 particularly when used—or when referring to the parts

of the plant used—to produce a high. 40 The term “hemp” continued to be

used within the context of industrial uses, but both terms—hemp and

marihuana—referred to the same plant, the Cannabis sativa L. 41

As use of the Cannabis sativa L. plant as an intoxicant gained in

popularity, government efforts to control, restrict, or prohibit that use

quickly followed. By 1915, the City of El Paso adopted one of the

country’s first municipal ordinances banning the sale and possession of

cannabis. 42 Soon thereafter, Congress passed the Narcotic Drug Import

and Export Act of 1922, prohibiting the importation, exportation, and

38Patton, supra note 3, at 5–6; Marijuana: A Study of State Policies &

Penalties, supra note 28, at 2.

39 “‘Marihuana,’ with an ‘H,’ is the traditional spelling in the United

States, particularly in official, government documents. ‘Marijuana,’ with a ‘J,’

is the popular, contemporary spelling.” Patton, supra note 3, at 3 (footnote

omitted).

Julie Andersen Hill, Cannabis Banking: What Marijuana Can Learn

40

from Hemp, 101 B.U. L. REV. 1043, 1046 n.7 (2021); Golden, supra note 24, at

739.

41 Hill, supra note 40, at 1046 n.7; Golden, supra note 24, at 739.

42 Patton, supra note 3, at 6.

18

non-medical use of opiates and narcotics and establishing the Federal

Narcotics Control Board. 43

Although commentators may debate whether Congress intended

the 1922 Act to include cannabis among the regulated “narcotics,” 44

regulatory efforts in the 1930s undeniably focused on the Cannabis

sativa L. plant. By 1931, twenty-nine states—including Texas—had

passed laws prohibiting “marihuana” use. 45 By the mid-1930s, the Texas

Legislature had enacted a series of statutes making it illegal to sell,

distribute, or possess narcotics, which was defined to include

“marihuana,” and Texas courts were deciding cases filed under those

statutes, even if they weren’t sure what marihuana was. 46

Congress’s next step was to enact the Marihuana Tax Act of

1937. 47 The 1937 Act did not directly outlaw marihuana, but instead

imposed such demanding tax and administrative burdens on those who

43 Id. at 7.

44Id. (suggesting that the term “‘narcotic’ was understood to mean any

drug used by individuals of low socio-economic standing” and thus “cannabis

was classified as a narcotic” (citing Richard J. Bonnie & Charles H. Whitebread

II, THE MARIJUANA CONVICTION: A HISTORY OF MARIJUANA PROHIBITION IN

THE UNITED STATES 51 (1974))).

45 Marijuana: A Study of State Policies & Penalties, supra note 28, at 2.

46See Spangler v. State, 117 S.W.2d 63, 64 (Tex. Crim. App. 1938);

Baker v. State, 58 S.W.2d 534, 534 (Tex. Crim. App. 1933) (relying on a

magazine’s description of “marihuana” and noting that “the accuracy of the

statement is not vouched for by the members of the court”); Santos v. State, 53

S.W.2d 609, 609 (Tex. Crim. App. 1932); Davila v. State, 298 S.W. 908, 908

(Tex. Crim. App. 1927) (reversing conviction for selling “Marijuana, which

seems to be a preparation used in a pipe or cigarette to smoke”).

47Marihuana Tax Act of 1937, Pub. L. No. 75-238, 50 Stat. 551 (1937)

(repealed 1970); see Patton, supra note 3, at 9.

19

distributed, sold, or possessed it that it “practically curtailed the

marijuana trade.” 48 As the first federal law directed specifically at

curtailing the use of cannabis, the Act defined the term “marihuana” to

mean “all parts of the plant Cannabis sativa L., whether growing or not;

the seeds thereof; the resin extracted from any part of such plant; and

every compound, manufacture, salt, derivative, mixture, or preparation

of such plant, its seeds, or resins.” Marihuana Tax Act of 1937, Pub. L.

No. 75-238, sec. 1(b), 50 Stat. 551, 551 (1937) (repealed 1970). Based,

however, on the common understanding that some of the plant’s parts

did not contain any (or much) of the intoxicating ingredient, the

definition expressly excluded from the term “the mature stalks of such

plant, fiber produced from such stalks, oil or cake made from the seeds

of such plant, any other compound, manufacture, salt, derivative,

mixture, or preparation of such mature stalks (except the resin

extracted therefrom), fiber, oil, or cake, or the sterilized seed of such

plant which is incapable of germination.” Id.

By the end of 1937, forty-six of the forty-eight states and the

District of Columbia had enacted legislation prohibiting the possession

and use of marihuana. 49 Nevertheless, concerns over the significantly

increasing usage of illegal drugs led Congress to pass the Boggs Act of

1951, substantially increasing the penalties for violations of the Narcotic

Drug Import and Export Act of 1922 and the Marihuana Tax Act of

48 Gonzales v. Raich, 545 U.S. 1, 11 (2005); see Heydari, supra note 3, at

4–5.

49 See Marijuana: A Study of State Policies & Penalties, supra note 28,

at 4.

20

1937. 50 Even further increases resulted from the passage of the Narcotic

Control Drug Act of 1956, which included cannabis among the list of

drugs to which it applied. 51 Thirty-four states, including Texas, followed

suit by enacting “Little Boggs Acts,” increasing the penalties under their

state drug laws. 52

The 1960s famously produced a substantial surge in marihuana

use. 53 In 1970, as part of President Nixon’s “War on Drugs,” Congress

passed the Comprehensive Drug Abuse Prevention and Control Act and

the Controlled Substances Act, categorizing “marihuana” as a

Schedule 1 drug, having the highest potential for abuse and no accepted

medical use. 54 “Cannabis has remained a Schedule I drug ever since.” 55

Like the Marihuana Tax Act of 1937, the federal Controlled

Substances Act defined “marihuana” anatomically to mean “all parts of

the plant Cannabis sativa L., whether growing or not; the seeds thereof;

the resin extracted from any part of such plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of such plant, its

50 See id. at 4–5; Patton, supra note 3, at 9.

51 See Marijuana: A Study of State Policies & Penalties, supra note 28,

at 5.

52 See Patton, supra note 3, at 12 & n.79.

53 See Marijuana: A Study of State Policies & Penalties, supra note 28,

at 5.

Controlled Substances Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236

54

(1970) (codified at 21 U.S.C. § 801); see Gonzales, 545 U.S. at 13–14; Patton,

supra note 3, at 15.

55 Patton, supra note 3, at 18.

21

seeds or resin.” 21 U.S.C. § 802(16)(A). 56 But also like the 1937 Act, the

definition excluded “the mature stalks of such plant, fiber produced from

such stalks, oil or cake made from the seeds of such plant, any other

compound, manufacture, salt, derivative, mixture, or preparation of

such mature stalks (except the resin extracted therefrom), fiber, oil, or

cake, or the sterilized seed of such plant which is incapable of

germination.” Id. § 802(16)(B)(ii).

Because the Controlled Substances Act completely prohibited

substances containing any amount of THC, the federal Drug

Enforcement Agency interpreted the law as banning all forms of the

Cannabis sativa L. plant, whether considered “hemp” or “marihuana.” 57

As a result, the federal government “prohibited all forms of cannabis

pursuant to the [Controlled Substances Act] until the passage of the

2018 Farm Bill,” nearly fifty years later. 58 When Texas enacted its own

Controlled Substances Act in 1973, it “carried forward” the same

definition from the federal law. Williams, 524 S.W.2d at 710. 59

56 See United States v. Moore, 446 F.2d 448, 450 (3d Cir. 1971); Williams

v. State, 524 S.W.2d 705, 708 n.1 (Tex. Crim. App. 1975).

57 See Heydari, supra note 3, at 10.

58 Id.

59But see Few, 588 S.W.2d at 582–83 (discussing differences between

the federal Controlled Substances Act and the Texas Controlled Substances

Act, particularly regarding their treatment of synthetic hallucinogenic

substances, and observing that the Texas “Legislature greatly expanded what

was the more restricted definition of tetrahydrocannabinols in the draft

uniform act and the Federal law”).

22

3. Decriminalization of cannabis

The move to decriminalize cannabis began to gain ground in the

mid-1990s. From 1996 to 1998, California, Alaska, Oregon, and

Washington revised their laws to allow the use of low-THC cannabis for

medical purposes. 60 By 2008, ten states had passed such laws, and Texas

followed suit in 2015. See TEX. OCC. CODE §§ 169.001–.005. In 2012,

Colorado became the first state to legalize marihuana for recreational

use. 61 By 2020, thirty-four states had permitted marihuana use for

medical purposes and sixteen states and the District of Columbia had

also permitted recreational use. 62 The federal Controlled Substances

Act, however, continues to list marihuana as a Schedule 1 controlled

substance. See 21 U.S.C. § 812 Schedule 1(c)(10).

4. Authorized usage of “hemp”

As mentioned, the federal Marihuana Tax Act and the federal and

Texas Controlled Substances Acts, which regulated, taxed, and

prohibited the possession and use of “marihuana,” defined that term to

mean “all parts of the plant Cannabis sativa L.,” but excluded “the

mature stalks” and seeds and various products made or derived from the

stalks or seeds. Id. § 802(16); see TEX. HEALTH & SAFETY CODE

§ 481.002(26). 63 These excluded parts and products were “commonly

60 Patton, supra note 3, at 19; Heydari, supra note 3, at 9.

61 Heydari, supra note 3, at 9.

62 Id.

63 Nevertheless, under federal law as construed and enforced by the

Drug Enforcement Agency, all CBD was considered to be “marijuana-derived,

and therefore, illegal.” Patton, supra note 3, at 20 n.119.

23

known as hemp,” Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d

1082, 1085 (9th Cir. 2003), although the statutes did not refer to them

by that name.

Congress began to change the legal landscape by passing the 2014

Farm Bill, which created a pilot program to allow more extensive

production and use of the Cannabis sativa L. plant for industrial (or, at

least, non-intoxicating) purposes, while still continuing to prohibit the

possession and use of the plant in intoxicating forms. 64 Taking

advantage of scientific advancements in cultivation and testing

methods, the 2014 Farm Bill adopted a completely new approach to

distinguishing between legal and illegal cannabis. Instead of defining

“marihuana” anatomically as all parts of the Cannabis sativa L. plant

except for the mature stalks and seed products, the 2014 Farm Bill

defined it as all parts of the plant except for “hemp,” and then defined

hemp to mean all parts of the Cannabis sativa L. plant with a THC

concentration of no more than 0.3 percent by dry weight. As a result, the

statute distinguished between legal hemp and illegal marihuana based

on its chemical concentration of the ingredient that produces a high,

instead of on the anatomical parts that historically contained that

ingredient in higher concentrations. The 2014 Farm Bill thus provided

a real-world experiment allowing for “hemp” production while

maintaining the longstanding prohibition against “marihuana.” 65

64Agricultural Act of 2014, Pub. L. No. 113-79, 128 Stat. 649, 912 (2014)

(current version at 7 U.S.C. § 5940); see Patton, supra note 3, at 20 n.119.

65 Heydari, supra note 3, at 10.

24

In 2018, Congress more broadly changed the landscape by passing

the 2018 Farm Bill. 66 Like the 2014 Farm Bill, the 2018 bill defined

“hemp” separately from “marihuana,” referring in both definitions to the

Cannabis sativa L. plant but distinguishing between the two based on

the plant’s or product’s concentration of THC. The bill removed “hemp,”

as now defined, from federal controlled-substance schedules and

provided instead for it to be regulated as an agricultural product. And

as mentioned, the bill permitted each state to develop its own plan for

developing the hemp industry within its borders, with federal

approval. 67

When Texas implemented its state hemp plan by passing House

Bill 1325 the following year, it followed the federal approach to

distinguishing between marihuana and hemp. Specifically, where the

statutes previously defined “marihuana” to mean “the plant Cannabis

sativa L.” and all of its parts and derivatives, except for its “mature

stalks” and certain derivatives, House Bill 1325 added an exception

listing “hemp, as that term is defined by Section 121.001, Agriculture

Code.” TEX. HEALTH & SAFETY CODE § 481.002(26). It also amended the

Health and Safety Code’s definition of “Controlled substance” to

expressly exclude “hemp, as defined by Section 121.001, Agriculture

Code, or the tetrahydrocannabinols in hemp.” Id. § 481.002(5). And it

added section 121.001 of the Agriculture Code to define “hemp” to mean

“the plant Cannabis sativa L.” and all of its parts and derivatives with

66Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat.

4490 (2018).

67 See Garcia & Stout, supra note 3, at 22.

25

a THC concentration “of not more than 0.3 percent on a dry weight

basis.” TEX. AGRIC. CODE § 121.001.

As a result of these revisions, the Cannabis sativa L. plant and

its parts and derivatives that historically were illegal—including the

flowers, buds, leaves, and stems—can now be legally cultivated in Texas,

so long as they contain a THC concentration of no more than 0.3

percent. 68 Under the new statutory framework, all such parts of the

Cannabis sativa L. plant now qualify as “hemp,” and no longer qualify

as “marihuana.” Farmers can produce hemp by controlling a plant’s

THC levels in a number of ways, including by selective breeding and by

harvesting the plant before its THC concentration exceeds 0.3 percent. 69

But the only way to distinguish between a legal “hemp” plant, part, or

product and an illegal “marihuana” plant, part, or product is to test its

THC concentration forensically; they are “virtually indistinguishable by

sight or smell alone.” 70

D. Constitutional analysis

With this background in mind, we must determine whether the

Texas Constitution’s due-course clause protects the Hemp Companies’

68 The 2018 Farm Bill did not completely legalize all plants and products

that meet the new definition of “hemp.” Beyond the maximum-THC-

concentration requirement, the bill also imposes licensing, registration,

reporting, testing, and other requirements. Cannabis remains a scheduled

substance under the Controlled Substances Act, and plants and products that

are cultivated, handled, manufactured, processed, distributed, or sold in

violation of these additional requirements remain illegal. See Heydari, supra

note 3, at 11.

69 See Garcia & Stout, supra note 3, at 22–23.

70Golden, supra note 24, at 740; see also Garcia & Stout, supra note 3,

at 22–23; Heydari, supra note 3, at 6.

26

asserted interest in manufacturing or processing smokable hemp

products. The Department argues it does not because the Companies

“are not complaining of economic regulations that burden their exercise

of a ‘lawful calling.’” Instead, the Department contends, the Hemp

Companies are complaining about the inability to produce products “in

contravention of the law”—products that Texans could not even legally

possess until “a few years ago.” According to the Department, the

Companies have, at most, “a mere unilateral expectation” of being able

to produce smokable hemp products and thus do not complain of the

deprivation of a vested right.

By contrast, the Hemp Companies argue that they are asserting

the deprivation of a protected interest because “the manufacture and

processing of smokable hemp products from exempt portions of the

cannabis plant was legal until § 443.204(4) was enacted.” Noting that

the Marihuana Tax Act of 1937 and the federal and Texas Controlled

Substances Acts excluded “non-psychoactive portions of the cannabis

plant”—“such as the mature stalks, seeds, fiber, and cannabis seed

oil”—from the definition of “marihuana,” the Companies assert that “the

manufacture and sale of these hemp products has always been legal in

the United States.” Based on these assertions, the Companies contend

that section 443.204(4) deprives them of a protected interest because it

completely bans them from engaging in a business that has always been

lawful and would still be lawful if it weren’t for that section’s prohibition.

See, e.g., Smith, 312 S.W.2d at 634 (holding that bail bondsmen had a

“vested property right in making a living” by “performing their business

otherwise lawful but for the statute in question”).

27

We are not convinced. The Companies’ argument conflates the

substances that were not prohibited before House Bill 1325 with those

that are not prohibited after. Even assuming arguendo that a different

regulatory history might produce a different result, the actual history of

governmental regulation of “hemp” undermines the Companies’ claim.

To the extent the manufacture and processing of smokable “hemp”

products was legal before section 443.204(4), it was legal only if those

products were made from the exempt parts of the cannabis plant—the

mature stalks or oils from the stalks or seeds. Any product made from

other parts of the plant—the flowers, buds, or leaves, for example—was

considered to be marihuana and was completely illegal under prior law.

The record in this case establishes that the cannabis flower is the

key and essential ingredient in the smokable products the Hemp

Companies desire to process and manufacture. As one witness testified,

“ultimately what we produce is a flower.” To manufacture smokable

hemp products, the Companies (1) take “raw hemp material” in “buck or

shuck form, meaning that there’s essentially the flower, the leaf, and

occasionally some seed and stems,” (2) “separate out the seeds and

stems,” (3) “grind” and “sift” the “flower and make sure it’s the

appropriate size,” (4) “flavor the Hemp material,” and then (5)

manufacture “the rods of the smokable hemp product.” As the

Companies’ counsel summarized the evidence in the trial court, “there

is no difference between hemp flower and smokable hemp. They are the

same thing . . . . There is no distinction between the two.”

As explained, the law has long prohibited the manufacturing or

processing of any smokable (or other) product using or containing the

28

flower of the Cannabis sativa L. plant. And as the Companies

acknowledge, House Bill 1325 “established a new framework for the

production, manufacture, retail sale, and inspection of hemp and hemp

products.” Under this new framework, all plants and parts that qualify

as “hemp” are excepted, but those are not the same substances that were

colloquially referred to as “hemp” under the old framework.

Nor are we convinced by the fact that the Companies began

processing and manufacturing smokable hemp products after the 2018

Farm Bill but before section 443.204(4) became effective. The

Companies assert that they began manufacturing smokable hemp

products that contained zero percent THC in the fall of 2018, with the

approval of (or at least without any objection from) the federal Drug

Enforcement Agency and the Dallas Police Department. The

Department contends that such sales were nevertheless illegal at that

time because Texas did not remove “hemp” from the controlled-

substances schedules until March 2019. 71 But in either event, we do not

find the fact that the Companies may have “legally” manufactured

smokable hemp products for a few (or even several) months before

section 443.204(4) became effective in June 2019 relevant to our

analysis. Even if there had been a few months during which the

manufacture of smokable hemp was lawful, this brief window would

have existed only by a temporary administrative quirk in the process of

the substance’s partial “decriminalization.” Such a fleeting “right” was

71See Dep’t of State Health Servs., Order Removing Hemp, as Defined

by the Agricultural Marketing Act of 1946, From Schedule I, 44 Tex. Reg. 1467,

1467–69 (2019).

29

in no sense “vested” in the Companies, which had, at most, a mere

anticipation that the government would allow a right it created to

continue in existence. Nor would the uncertain state of the law for a few

months transform the long-prohibited manufacture of smokable

cannabis flower into the kind of “lawful calling” to which courts have

afforded constitutional protection.

Ultimately, the Hemp Companies complain that Texas law does

not permit them to manufacture or process products that Texas law

prohibited for nearly a century. The legislature’s recent decision to adopt

a “new framework” that permits the possession and use of those

products, and even allows the manufacture and processing of similar

products, does not transform the Hemp Companies’ desire to produce

products that the law still prohibits them from producing into a

constitutionally protected interest. Considering the long history of the

state’s extensive efforts to prohibit and regulate the production,

possession, and use of the Cannabis sativa L. plant, we conclude that

the manufacture and processing of smokable hemp products is neither a

liberty interest nor a vested property interest the due-course clause

protects. It is, instead, “purely a personal privilege” that the people’s

elected representatives in the legislature may grant or withdraw as they

see fit. State v. Bush, 253 S.W.2d 269, 272–73 (Tex. 1952).

III.

Conclusion

We hold that the Hemp Companies’ complaints regarding

section 443.204(4) and rule 300.104 do not assert the deprivation of an

interest substantively protected by the Texas Constitution’s due-course

clause. Because the Department no longer defends the portion of

30

rule 300.104 that prohibits the “distribution” and “retail sale” of

consumable hemp products for smoking, the trial court’s injunction

against enforcement of that portion remains. We otherwise reverse the

trial court’s judgment and render judgment accordingly.

Jeffrey S. Boyd

Justice

OPINION DELIVERED: June 24, 2022

31