Untitled Texas Attorney General Opinion: KP-0469

July 3, 2024

The Honorable Charles Schwertner
Chair, Senate Committee on Business & Commerce
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0469

Re: Whether low-THC cannabis inventory may be transported between department-
approved locations by a licensed dispensing organization before a prescription is issued
and filled under the Compassionate-Use Act (RQ-0525-KP)

Dear Senator Schwertner:

You ask whether the Texas Compassionate-Use Act (“Compassionate-Use Act”) and its
associated regulations permit licensed dispensing organizations to “transport and store their low-
THC cannabis inventory between” state-approved locations “before a prescription is issued and
filled . . . .” 1

Legislative Background of Low-THC Cannabis for Medical Use

The Compassionate-Use Act was part of a legislative initiative in 2015 to permit a very
limited medical use of low-THC cannabis in the State of Texas. See Act of May 19, 2015, 84th
Leg., R.S., ch. 301, §§ 1–4, 2015 Tex. Gen. Laws 1419–25 (“Senate Bill 339” or the “Bill”). Senate
Bill 339 did three main things. First, it added chapter 169 to the Occupations Code to authorize

1
Letter from Honorable Charles Schwertner, Chair, Senate Comm. on Bus. & Com., to Honorable Ken
Paxton, Tex. Att’y Gen. at 1 (Dec. 15, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-
files/request/2023/RQ0525KP.pdf (“Request Letter”). You do not ask about the permissibility of this scenario under
federal law and we do not address it except to note that federal laws may apply. Although the Compassionate-Use Act
implicates only intrastate commerce, the United States Supreme Court has held that federal regulation of intrastate
marihuana production and distribution does not violate the Commerce Clause. Gonzales v. Raich, 545 U.S. 1 (2005)
(concerning the California Compassionate Use Act). Additionally, although you ask whether dispensing organizations
“may transport and store their low-THC cannabis inventory” as described, your letter focuses only on the
transportation aspect. Request Letter at 1, 3 (emphasis added). As you do not otherwise provide context regarding the
circumstances of the proposed transportation, we presume that the mention of storage merely illustrates a potential
purpose of the transportation. See id. at 1–3. We limit our analysis accordingly.
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qualified physicians to prescribe low-THC cannabis to patients with certain medical conditions. 2
Id. § 4 at 1423–25; see TEX. OCC. CODE §§ 169.001–.005; see also id. §§ 169.001(3) (defining
“[l]ow-THC cannabis” as “the plant Cannabis sativa L., and any part of that plant . . . that contains
not more than one percent by weight of tetrahydrocannabinols”), 169.003 (authorizing the
prescription of low-THC cannabis). Second, the Bill added the Compassionate-Use Act in Health
and Safety Code chapter 487, which directs the Department of Public Safety (the “Department”)
to license and regulate the organizations that cultivate, process, and dispense low-THC cannabis
to patients with a prescription. Bill § 1 at 1419–23; see TEX. HEALTH & SAFETY CODE §§ 487.001–
.256. The Bill also requires the Department to maintain a registry 3 to track information about each
prescription. Bill § 1 at 1419–20. Third, the Bill amended the Texas Controlled Substances Act
(“Controlled Substances Act”) to exempt licensed dispensing organizations from certain
possession and delivery offenses and to specifically authorize them to possess low-THC cannabis.
Id. §§ 2, 3 at 1422–23; see TEX. HEALTH & SAFETY CODE §§ 481.111(e), .062(a)(6). With this
background in mind, we address your question.

Transportation of Low-THC Cannabis under the Compassionate-Use Act and
Associated Regulations

Your inquiry concerns the transportation of low-THC cannabis inventory by a licensed
dispensing organization between state-approved locations before a prescription is issued and
filled. 4 See Request Letter at 1, 3. As a general matter, a dispensing organization is “licensed by
the [D]epartment to cultivate, process, and dispense low-THC cannabis” to a patient for whom it
has been prescribed. TEX. HEALTH & SAFETY CODE § 487.001(3) (defining “[d]ispensing
organization”). The cultivation, processing, and dispensation of low-THC cannabis takes place at
a licensed dispensing organization’s premises. See id. § 487.102(1)(B)(ii) (requiring a dispensing
organization to possess “the ability to secure . . . premises” to be eligible for a license); see also
37 TEX. ADMIN. CODE §§ 12.1(12) (2017) (Tex. Dep’t of Pub. Safety, Definitions) (defining
“[r]egulated premises” as “[t]he physical areas under the control of a licensee, in which low-THC
cannabis, or production related raw materials or by-products, are cultivated, handled, transported,
processed, or dispensed”), 12.2(a) (2017) (Tex. Dep’t of Pub. Safety, Requirements and Standards)
(providing that “[a] licensee may only perform regulated functions at a department approved
location”).

The statute’s use of the word “premises” does not foreclose the possibility that a dispensing
organization may have multiple premises. See Smith v. State, 268 S.W. 742, 743 (Tex. Crim. App.
1925) (observing that “[t]he word ‘premises’ has many varied meanings” and could mean, for

The Bill initially authorized only the treatment of intractable epilepsy, but the law has since been amended
2

and now includes nine specified illnesses, plus “a medical condition that is approved for a research program under
Subchapter F, Chapter 487, Health and Safety Code[.]” TEX. OCC. CODE § 169.003(3)(A).
3
The Compassionate-Use Act requires the Department to establish and maintain an online “compassionate-
use registry” containing information about the prescribing physician, the patient, the dosage prescribed, the total
amount of low-THC cannabis required to fill the prescription, and “a record of each amount of low-THC cannabis
dispensed by a dispensing organization to a patient under a prescription.” TEX. HEALTH & SAFETY CODE § 487.054(a).
4
Because you reference “a licensed dispensing organization operating out of multiple facilities within the
State,” we understand you to ask about transportation between the multiple facilities operated by the same licensee.
Request Letter at 3.
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example, “different bodies of land separated from each other” as readily as it could mean “all of a
large estate”); see also 37 TEX. ADMIN. CODE § 12.11(b)(7)(B)(i) (2017) (Tex. Dep’t of Pub.
Safety, Application for License) (requiring an applicant to describe “all properties applicant
proposes to utilize to cultivate, process, and dispense low-THC cannabis” (emphasis added)).
Although the Compassionate-Use Act authorizes the dispensing of low-THC cannabis in
accordance with the law and associated regulations, as you acknowledge, it does not address the
transportation of low-THC cannabis, whether between Department-approved locations or
otherwise. See Request Letter at 3 (observing that no provision in that law of which you are aware
either expressly provides for or prohibits the transportation of low-THC inventory “from one
facility to another within the state”). The statute does, however, direct the public safety director of
the Department to “adopt any rules necessary for the administration and enforcement of [chapter
487]” (“Department rules”). TEX. HEALTH & SAFETY CODE § 487.052.

The Department has promulgated multiple rules that contemplate the transportation of low-
THC cannabis. See, e.g., 37 TEX. ADMIN. CODE §§ 12.11(b)(7)(D)(iv) (2017) (Tex. Dep’t of Pub.
Safety, Application for License) (requiring applicants for a dispensing organization license to
provide “[i]dentifying descriptions of any vehicles to be used to transport product”), 12.2(k) (2017)
(Tex. Dep’t of Pub. Safety, Requirements and Standards) (requiring directors, managers, or
employees of a licensed dispensing organization to carry a Department-issued registration card
when performing certain functions, “including . . . the transportation of low-THC cannabis on
behalf of a licensee”), 12.4(b)(3)–(4) (2017) (Tex. Dep’t of Pub. Safety, Records) (requiring
licensees to retain “delivery records and manifests reflecting the recipient’s acknowledgement and
establishing the chain of custody, relating to the transportation of . . . Low-THC cannabis,” as well
as “transportation trip plans”), 12.32(a), (b) (2017) (Tex. Dep’t of Pub. Safety, Security of
Vehicles) (requiring “[a]ny vehicle used by a dispensing organization for the transportation of low-
THC cannabis” to have certain security measures in place and requiring a licensee to prepare a trip
plan “[p]rior to transportation of any product”).

None of the rules expressly address the scenario of transporting low-THC cannabis
inventory between Department-approved locations prior to a prescription being issued and filled.
See Request Letter at 1, 3. However, while the ultimate purpose of a dispensing organization is to
“cultivate, process, and dispense low-THC cannabis to a patient for whom low-THC cannabis is
prescribed,” the rules contemplating transportation do not necessarily indicate that a prescription
must have already been issued and filled before such transportation may take place, nor do they
indicate that transportation between facilities would be prohibited. TEX. HEALTH & SAFETY CODE
§ 487.001(3) (emphasis added). Thus, we find nothing in the rules that would prohibit the scenario
about which you ask.

Administrative rules, however, must comport with state law. See generally R.R. Comm’n
of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992). In this case, given the nature of
low-THC cannabis, the legality of its transportation implicates the Controlled Substances Act.
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Low-THC Cannabis and the Controlled Substances Act

For purposes of compassionate use, “[l]ow-THC cannabis” means “the plant Cannabis
sativa L., and any part of that plant or any compound, manufacture, salt, derivative, mixture,
preparation, resin, or oil of that plant that contains not more than one percent by weight of
tetrahydrocannabinols.” TEX. OCC. CODE § 169.001(3). Tetrahydrocannabinol is the chemical
compound in the marihuana plant that produces a psychoactive high when ingested and is
commonly referred to as “THC.” Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647
S.W.3d 648, 658 (Tex. 2022). Under the Controlled Substances Act, if a cannabis plant or its
derivatives has a THC concentration of more than 0.3%, it is “marihuana” and is subject to
regulation as a controlled substance. See TEX. HEALTH & SAFETY CODE § 481.002(26)(F) (defining
“[m]arihuana” as “the plant Cannabis sativa L., whether growing or not, the seeds of that plant,
and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its
seeds” but excluding, among other things, “hemp, as that term is defined by Section 121.001,
Agriculture Code”); TEX. AGRIC. CODE § 121.001 (defining “hemp” as “the plant Cannabis sativa
L. and any part of that plant . . . with a delta-9 tetrahydrocannabinol concentration of not more
than 0.3 percent on a dry weight basis”); see also TEX. HEALTH & SAFETY CODE § 481.002(5)
(defining a “[c]ontrolled substance” as “a substance . . . listed in Schedules I through V[,]” among
others); TEX. DEP’T OF STATE HEALTH SERVS., 2023 SCHEDULES OF CONTROLLED SUBSTANCES
(listing marihuana as Schedule I hallucinogenic substance). 5 Thus, the transportation of any low-
THC cannabis containing a concentration of THC exceeding 0.3% is subject to the Controlled
Substances Act’s restrictions on marihuana.

Controlled Substances Act Exemption for Dispensing Organizations

The Controlled Substances Act provides that, “[e]xcept as authorized by this chapter, a
person commits an offense if the person knowingly or intentionally delivers marihuana.” TEX.
HEALTH & SAFETY CODE § 481.120(a). “Deliver” means “to transfer, actually or constructively, to
another a controlled substance . . . regardless of whether there is an agency relationship.” Id.
§ 481.002(8). But the Controlled Substances Act provides certain exemptions to its provisions. See
generally id. § 481.111 (titled “Exemptions”). Among them 6 is subsection 481.111(e)(2)—added
to the statute by the Bill—which provides in relevant part that the offense of delivery of marihuana
in section 481.120 does not apply

to a person who engages in the acquisition, possession, production,
cultivation, delivery, or disposal of a raw material used in or a by-

5
Available at https://www.dshs.texas.gov/drug-manufacturers-distributors/schedules-controlled-substances-
drug-manufacturers-distributors.
6
Another exemption, subsection 481.111(c), provides that “[a] person does not violate Section 481.113”
(offense of manufacture or delivery of controlled substance classified as a Penalty Group 2 substance) under certain
circumstances involving the use of THC in a therapeutic research program. TEX. HEALTH & SAFETY CODE
§ 481.111(c). Penalty Group 2 substances include “any quantity of . . . [t]etrahydrocannabinols, other than
marihuana[.]” Id. § 481.103(a)(1). We are unaware of circumstances under which low-THC cannabis prescribed for
medical use pursuant to chapter 169 of the Occupations Code could be classified as a Penalty Group 2 substance rather
than Schedule I marihuana. Nor have we received briefing from the Department or industry representatives indicating
such a possibility. We conduct our analysis accordingly.
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product created by the production or cultivation of low-THC
cannabis if the person . . . is a director, manager, or employee of a
dispensing organization and the person, solely in performing the
person’s regular duties at the organization, acquires, possesses,
produces, cultivates, dispenses, or disposes of . . . in reasonable
quantities, any low-THC cannabis or raw materials used in or by-
products created by the production or cultivation of low-THC
cannabis[.]

Id. § 481.111(e)(2)(A); see also id. § 481.111(f)(1), (2) (providing that for purposes of subsection
(e), a “‘[d]ispensing organization’ has the meaning assigned by” the Compassionate-Use Act and
the term “‘[l]ow-THC cannabis’ has the meaning assigned by” section 169.001 of the Occupations
Code). As previously discussed, the Legislature added this exemption to the Controlled Substances
Act in 2015 as part of its initiative to permit the limited medical use of low-THC cannabis in the
State of Texas with the plain intent to decriminalize “delivery” within this context. See Bill § 3 at
1423. Like the Compassionate-Use Act, nothing in subsection 481.111(e)(2) itself prohibits the
scenario about which you ask. Accordingly, to the extent the transportation of low-THC cannabis
by a licensed dispensing organization fits within the parameters of subsection 481.111(e)(2)’s
exemption, it would not constitute a marihuana delivery offense.

Thus, in answer to your question, neither the Compassionate-Use Act nor its associated
regulations prohibit a licensed dispensing organization from transporting its low-THC cannabis
inventory between Department-approved locations prior to a prescription being issued and filled.
Department rules generally contemplate the transportation of low-THC cannabis and likely do not
prohibit the proposed scenario so long as any transportation of low-THC cannabis comports with
the statutory exemption to the offense of delivery of marihuana provided by subsection
481.111(e)(2) of the Controlled Substances Act. 7 Finally, we note that it lies within the
Department’s discretion as the rulemaking authority for the administration of the Compassionate-
Use Act to clarify its regulations on this point.

7
A licensed dispensing organization transporting low-THC cannabis inventory must also, of course, comply
with any rules or licensing criteria the Department determines is necessary for transportation purposes. See TEX.
HEALTH & SAFETY CODE §§ 487.052, .102(3).
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S U M M A R Y

The Texas Compassionate-Use Act in chapter 487 of the
Health and Safety Code provides a regulatory structure administered
by the Department of Public Safety for the medical use of low-THC
cannabis in conjunction with chapter 169 of the Occupations Code.
Neither the Compassionate-Use Act nor its associated regulations
prohibit a licensed dispensing organization from transporting its
low-THC cannabis inventory between Department-approved
locations prior to a prescription being issued and filled. Department
rules generally contemplate the transportation of low-THC cannabis
and likely do not prohibit the proposed scenario so long as any
transportation of low-THC cannabis comports with the statutory
exemption to the offense of delivery of marihuana provided by
subsection 481.111(e)(2) of the Controlled Substances Act.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee