Texas: Medical Marijuana in Texas – A Weak Start

Authored By: Chad West

Chad West, a Dallas, Texas-based attorney, focuses his practice on personal injury litigation and criminal defense. Chad has been recognized as one of the “Best Criminal Lawyers” in Dallas by D Magazine in 2014, 2015, and 2016 and was selected as a “Rising Star” by Super Lawyers (a Thompson Reuters service) from 2011-2016.

A passionate advocate for medical marijuana legalization, Chad regularly authors and speaks on marijuana reform and legalization.

He also co-authored the first medical marijuana legalization bill that was presented to the Texas Legislature in 2011. Along with a group of investors and advocates, Chad applied for and came in fourth place (out of 43 applicants) for one of the three licenses for cultivation and dispensing of medical marijuana in Texas in 2017.

Prior to attending and graduating from Texas Tech School of Law with honors, Chad proudly served in United States Army in Hungary, Bosnia, and San Antonio, Texas before being honorably discharged as a combat veteran. He and his family reside in the funky, laid back neighborhood of Oak Cliff, near the heart of Dallas

 

ARTICLE

The times, they are a changin’, and nowhere is this more apparent than in the passage of Texas Senate Bill 339. As of June 1, 2015, Senate Bill 339—known as the Texas Compassionate Use Act—officially became the law in Texas.¹

The Texas Compassionate Use Act is representative of the recent nationwide trend towards the relaxing of marijuana restrictions. Texas is not the first state to create a compassionate use program, but this Act still marks an important turning point in Texas’s legislative attitude towards marijuana regulation. Though Texas officials remain steadfast that this new legislation is already pushing the envelope of what is permissible—and thus remain obstinate that the law will not be liberalized further—this is still a major step forward for a state that has traditionally lagged behind other states’ efforts to decriminalize and legalize marijuana use.² Other efforts have also been undertaken recently to reduce criminal penalties for the possession of marijuana in Texas, but those efforts have been unsuccessful.³Under the language of Senate Bill 339, the Department of Public Safety is required to license at least three medical marijuana dispensing organizations before September 1, 2017.⁴ These organizations, once licensed, will be legally permitted to cultivate, process, and dispense low-THC marijuana for use by prescribed patients in the state.⁵ In sum, these facilities will be tasked with regulating each step of the process: growing the marijuana plants, preparing the plant for use, and distributing the marijuana to prescribed patients.⁶

To aid in this process, DPS will be required to create a secure registry of physicians who treat epilepsy.⁷ This registry will be compiled for the specific purpose of enabling patients with intractable epilepsy to receive prescriptions for low-THC cannabis or cannabidiol to help treat their epileptic symptoms.⁸

Per the statute, only people with intractable epilepsy will be eligible for a low-THC medical marijuana prescription under this new program.⁹ “Intractable epilepsy” is a type of seizure disorder that is difficult to treat with current antiepileptic drugs.¹⁰ More specifically, to qualify for the program, a person must have been treated by two or more antiepileptic medications at maximum appropriate dosage without success.¹¹ No other conditions or diseases presently qualify for treatment.¹²

Intractable epilepsy affects an estimated 149,000 individuals in Texas, with the majority of those affected being children or young adults.¹³ Intractable epilepsy is a debilitating disorder and affected patients can sometimes suffer hundreds of seizures a week.¹⁴ Thankfully, medical marijuana has been proven to provide effective relief for this condition, even where traditional medication has failed.¹⁵

Unfortunately, many have started to question whether Texas’s Compassionate Use Program really does enough to help affected Texans. As previously mentioned, DPS has only agreed to move forward with the licensing of three cultivation and dispensing facilities—this is the bare minimum provided for by the new legislation.¹⁶ Of these three facilities—Cansortium Texas, Compassionate Cultivation, and Surterra Texas—two will be located in Austin, and one will be located in the Schulenburg area, only 100 miles from Austin. This means that vast regions of Texas’s almost 270,000 square miles will remain outside the reasonable coverage areas of these new dispensaries. Sure, Austin is convenient for some Texans, but lack of coverage across the rest of the state will leave a far greater number without a way to reliably fill and refill their prescriptions.

In fact, residents of Texas’s two largest cities—Dallas-Fort Worth and Houston—will have to regularly commute three hours to get their prescriptions filled and return home. And this is ignoring the fact that there will be no dispensaries at all in West Texas or the Panhandle region, leaving even more residents without a way to effectively receive the medication that they are entitled to. Further, intractable epileptics frequently are unable to drive themselves so they will have to rely on the aid of others to make these regular journeys to a licensed facility. This is problematic, but there is a simple solution available.

The enabling statute provides that “at least three” dispensing organizations must be licensed before September 1, 2017.¹⁷ This means that Texas has the statutory authority to license additional facilities.¹⁸

In fact, DPS has already received applications from a total of forty-three different organizations that have sought approval for a cultivation and dispensing license.¹⁹ These applications have been graded and given a score out of 100, and were then ranked based upon that score.²⁰ Out of the forty-three original applicants, the majority received passing scores of 70 or better, and only one applicant was actually disqualified.²¹ So DPS presently has a working list of forty-two organizations that are ready and willing to get licensed and start producing medical marijuana in the state of Texas.

With this in mind, there is no excuse for the glaring lack of coverage that is about to occur starting on September1, 2017. Further, because the applicants on DPS’s list are all privately owned and operated, it would cost DPS next to nothing to approve additional organizations, especially because the organizations’ applications have already been scrutinized.

This potential problem is made even more apparent when compared to how similar programs have functioned in other states. For example, in New York—a state of only 54,000 square miles—twenty dispensaries were approved for operation.²² With only twenty dispensaries, it quickly became apparent that there were not enough dispensaries to adequately provide for New York’s prescribed patients.²³

The same thing also occurred in Florida after its legislature approved its own Compassionate Use Program. Florida’s Department of Health gave cultivation and dispensing licenses to “just seven companies” and many people criticized the program for its ineffectiveness.²⁴ The state legislature finally attempted to respond to these criticisms by increasing the number of licenses to ten, or by allowing the licensed companies to operate multiple dispensaries, but both options failed as the Florida Legislature could not agree to a working set of terms.²⁵ In the meantime, the people that are losing out are those epileptic patients that need medical marijuana to function.

Even Minnesota, with its population size of 1/6th of Texas’s, has licensed two companies that operate eight dispensaries in the state.²⁶ Even though that is almost three times as many dispensaries as Texas will have, many Minnesota patients have still resorted to buying marijuana on the black market because the dispensaries cannot effectively provide for patients.²⁷ This should be a huge red flag for Texas lawmakers, but they still seem unaware of the impending issues that Texas’s Compassionate Use Program will face. Texas should be learning from mistakes of other states to proactively prevent these same mistakes from happening again, but it appears that DPS is either indifferent or ignorant, and so history appears ready to repeat itself again in Texas.

Overall, it is understandable that DPS may be hesitant to act until a problem has fully materialized in the state, but there is nothing to be gained by patience in this matter. Licensing additional facilities—even just two or three more—would drastically increase the total potential coverage that the medical marijuana dispensaries would be able to provide. With more coverage, more patients that are struggling with intractable epilepsy will finally be able to receive the medication they need to function. Hopefully, that will help to mitigate some of the impending issues that Texas’s fledgling medical marijuana program will face. Though passage of the Compassionate Use Act was a step in the right direction, it may prove to be a futile motion if patients remain unable to take advantage of the program because of the foreseeable issues it will face.