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
══════════
No. 21-1045
══════════

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

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