Texas Has Basically Legalized Marijuana. We Have the Proof. 

The first thing I notice on entering the store is the smell. It is an earthy sandalwood mixed with some type of citrus, perhaps sour lemon. It tells me I am in the right place, because I am here to buy cannabis. On my left sits a smoking lounge with four booths facing large windows that look out on an upscale South Austin shopping center. To my right, behind a glass window, is a demonstration grow room—more for show than large-scale cultivation. Straight ahead, on the back wall, a large lacquered-wood cabinet looks like something out of an old-fashioned drugstore. Its shelves hold a cannabinoid cornucopia: cookies, gummies, tinctures, machine-rolled joints, and glass containers half-filled with tightly clumped plant buds.

Another customer enters and makes a beeline to the counter. He orders a strain of cannabis called Blueberry Muffin. The salesman, Nick, uses plastic tongs to fish out a few buds and places them on an electric scale. As he does this, he sizes up my wide-eyed incredulity.

What he’s selling isn’t marijuana, he tells me. It is hemp containing a chemical compound called THCa. Lighting it on fire transforms the THCa into another compound, THC—delta-9-tetrahydrocannabinol, to be exact. “It’s a little less potent than what you would find in California, but it still gets the job done,” Nick says. “Rest assured, everything in the store will get you high.”

The muffin man drops into the conversation. Imagine if selling cookies were illegal, he says, but it were legal to sell cookie dough. “You can just make the cookie yourself by heating it up.” In this metaphor, THC-laden marijuana is the cookie, and THCa hemp is the cookie dough. When you light the joint on fire, it becomes, for all intents and purposes, marijuana.

After muffin man leaves, I get down to business with Nick, who is wearing an expensive-looking long-sleeved dress shirt. (I wouldn’t have been surprised if he had tried to sell me a pair of $150 jeans.) We discuss the characteristics of various strains for sale, most of which have mouthwatering names such as Lemon Cherry Gelato. I am overwhelmed by the choices, so Nick suggests Lemon Bomb, which is “pretty potent.” But he has stronger options.

“This is unreal,” he says, reaching for a rectangular glass jar filled with what look like chalky nuggets of stone, identified by a handwritten label: White Wok. “This is something that, like, I would recommend all customers try at least once. This is going to get you f—ed up.”

Is merely potent good enough, or do I want the neurons in my brain shaken like dice in a game of Boggle? As I dither, Nick aims to close the sale. “If you want to have a chill day, I would go with the Lemon Bomb. If you want to ruin your day,” his voice trails off, and he looks suggestively at White Wok.

Boggle it is. I purchase two grams of White Wok for $40 with my credit card. I thank Nick as he hands me a small plastic baggie reeking of a scent that transports me back to the winter of 1991, when I first set foot in an Amsterdam “coffeeshop.” I exit into one of Texas’s most expensive neighborhoods, where teardown bungalows fetch $1 million. Next door is an Alamo Drafthouse Cinema.

A few days earlier, a man named Nico Richardson had told me that Texas had become “the biggest unregulated drug market in the country.” It was a stunning claim, and I wasn’t sure I believed him. I doubted the conservatives who run Texas would allow that state of affairs, and I knew he had a vested financial interest in cracking down on these hemp shops.

Dressed in unwrinkled jeans and unscuffed white sneakers, the fortysomething Richardson looks the part of an Ivy League MBA, which he is. He’s also the chief executive of Texas Original, one of three licensed medical marijuana dispensaries in the state. His operation is regulated by Texas Department of Public Safety inspectors with the humorlessness of Soviet functionaries. They don’t worry him. What does are the thousands of licensed hemp dispensaries in the state that, he says, sell strains of cannabis that could lay low a three-hundred-pound rutting hog.

When Richardson claimed it was easy to purchase marijuana at these stores, I wondered if he was being hyperbolic. Now all I had to do was send White Wok to a laboratory to see what I had bought.

I’ll cut to the chase. What I purchased, legally speaking, was marijuana. Extremely potent marijuana.

The Farm Bill passed by Congress in 2018 says that if a cannabis plant is less than 0.3 percent delta-9 THC, it is hemp and not subject to the federal Controlled Substances Act. Any THC in excess of that makes it marijuana. Texas adopted these definitions into state law in 2019, making hemp legal in the state. White Wok’s concentration of delta-9 THC tested at 1.48 percent, or nearly five times the legal limit. This wasn’t just cookie dough. It was a fully baked cookie. And the delta-9 THC was just the tip of the psychoactive iceberg.

The strain also contained 48.3 percent THCa. The hemp industry argues that according to the letter of the law, the THCa level doesn’t matter. Any plant with less than 0.3 percent THC is hemp. The U.S. Drug Enforcement Administration disagrees. In May the federal agency clarified its position that THCa must also be under the 0.3 percent legal limit. My White Wok contained 150 times that much.

“This is not a regular cannabis flower,” said Sarah Otis, director of quality assurance for Anresco Laboratories, in San Francisco, which Texas Monthly paid to assay the purchased samples. Naturally occurring cannabis doesn’t approach those levels of THC, she said. She suspected it was a bud genetically selected to produce high THC and then infused with hash oil—a cannabis extract—or additional THC. Asked to describe its potency, she said, “The word I would use is ‘egregious.’ ”

Otis said that if this strain was being sold openly in Texas, it wasn’t being accurately tested. There was no way a plant that tested at legal THC levels at a manufacturing facility could test weeks later at 1.48 percent. And if the THC level isn’t being tested properly, she said, it’s difficult to trust that it has been tested for pesticides, heavy metals, or molds such as aspergillus.

I shared the test results with Paul Zain, who owns Greenbelt Botanicals, where I bought the White Wok. “These things are going to happen,” he said. “I am disappointed.” He told me that his suppliers provide paperwork showing that their flowers are hemp and therefore legal to sell. Testing every product himself would cost too much. “I have to take some people at their word,” he said.

The state can’t keep up either. Timothy Stevenson, associate commissioner for consumer protection at the Texas Department of State Health Services, recently testified before a legislative hearing that the agency has four inspectors who visit the more than seven thousand registered hemp dispensaries. They can inspect each one—from the Resler Smoke Shop, in northwest El Paso, to Puff ’N Stuff, on State Line Avenue in Texarkana, a twelve-hour drive away—once every five years. DSHS has authority to test the products being sold, but “we don’t tend to invest a lot of state resources in that,” Stevenson said. Instead, to determine potency, the state relies on the certificates of analysis provided by manufacturers.

Texas Monthly purchased smokable cannabis at eight dispensaries, two each in Austin, Dallas, Houston, and San Antonio. We bagged our purchases and sent them to Anresco for testing. All eight samples came back with delta-9 THC levels in excess of legal limits. Every one was marijuana.

The “house blend” joint we purchased at the Alamo Heights location of Green Haven Cannabis Co., which operates three stores in San Antonio, tested at 12.38 percent—more than 41 times the legal limit for delta-9 THC. Patrick Brantley, the shop’s owner, said he buys joints, often called prerolls, from Oregon and relies on his suppliers for accurate testing. “You are held captive to the [certificates of analysis] the companies provide,” he wrote in an email.

The cannabis we bought contained a lot of THC. Testing labs, including Anresco, provide a “total THC” figure as a gauge of overall potency. By this measure, the clear winner was the White Wok, at 43.9 percent, enough to neutralize a half-ton bull alligator. Other samples also delivered staggering amounts of psychoactive ingredients. The preroll suggested by a friendly clerk with a nose piercing at Grinders Coffee Bar, a dispensary near Houston’s affluent West University Place, registered at 26 percent THC. (A study of the potency of marijuana confiscated by the DEA in the eighties found that delta-9 THC levels were around 3 percent.) The strain with the least kick, though a still-impressive 9 percent total THC, was a sold by an upscale East Dallas shop that hosts weekly dinners at which, a staffer explained, “only the sauces are infused, so that you have control and can dose yourself.”

All of our samples were “extremely” potent, said Matthew Rossheim, an associate professor in the School of Public Health at the University of North Texas Health Science Center, in Fort Worth. He has written several scientific papers studying what is being sold at hemp dispensaries in the state, and he is concerned about Texans buying cannabis that’s been manipulated in ways that may not prove safe. “We won’t know the health effects of these for years and years to come,” he said. “People don’t even realize what all they’re putting in their bodies. So how will we be able to figure out which stuff is most harmful and poisonous? It’s just a mess.”

Anresco and several other laboratories ran a nationwide test in January and reached a conclusion similar to Texas Monthly’s findings. The study tested 29 samples from prerolls and loose flower, all of which were sold with certificates indicating their THC was under 0.3 percent. Nineteen had levels above the limit. Factoring in the THCa, 25 were marijuana.

When Nico Richardson told me how easy it was to buy marijuana in Texas, I had wondered if he was getting high on his own supply. But our testing suggests he was absolutely correct. “Let’s be honest and call it what it is,” he said. “Most of the hemp dispensaries out there, knowingly or unknowingly, are selling illegal federal marijuana.”

And they can do it because these stores operate at the crossroads of poorly written laws, wily chemists brewing up potent new strains, and an understaffed, underfinanced, and handcuffed state regulatory body.

Recreational use of cannabis became commonplace in Mexico starting in the 1880s. In the United States at the time, the intoxicants of choice were cocaine, morphine, and opium, all of which were unregulated until the early years of the twentieth century. But marijuana did cross the border—including in the rucksacks of Pancho Villa’s revolutionary army—and was sold as far north as San Antonio. In 1915, El Paso became the first city in Texas to enact an ordinance prohibiting the sale and possession of cannabis, claiming that smoking it led to violent behavior.

Some historians argue that movements to outlaw certain drugs share nativist and anti-immigrant impulses with the temperance movement, which led to a national ban on alcohol in 1920. The year prior, the Texas Legislature had enacted a prohibition on the transfer of marijuana from one person to another; in 1923 it banned possession with the intent to sell. In discussing the bill, a newspaper in Austin felt compelled to educate its readers that “marihuana is a Mexican herb.” Practically every state west of the Mississippi had similar laws on its books by 1933.

Texas made marijuana possession a felony, a situation that remained until 1973, when the state became the second to last to reduce the crime to a misdemeanor. According to a Texas Monthly article, the impetus for the change was that “too many of the wrong kids were being arrested.” When kids from the wealthy Dallas enclave of Highland Park were charged with felonies, the issue became a legislative problem that needed to be solved.

In 1996 California was the first state to legalize marijuana for medicinal use. Others soon followed. Colorado and Washington became the first to approve recreational use, in 2012, followed by Alaska and Oregon, in 2014. At last count, 24 states—plus the District of Columbia—had joined the green wave. They have implemented testing regimes to ferret out the sort of contaminants that may be going undetected in strains of hemp sold in Texas.

Possession of less than two ounces of marijuana remains a misdemeanor in our state that can result in as many as 180 days in jail, although some cities and local prosecutors have said they won’t bring charges. But Texas has opened the door to medical marijuana. In 2015 the state created the Compassionate Use Program for Texans with severe epilepsy. There are only three licensed medical marijuana dispensaries, and each can operate a single growing facility. They must test their crops monthly and share the results with the Department of Public Safety, not the Department of State Health Services, which oversees hemp stores.

Nico Richardson’s Texas Original is the largest of the medical dispensaries. Its client base mushroomed after Texas expanded the program, in 2019, to allow marijuana for the treatment of terminal cancer and multiple sclerosis, along with a handful of other conditions. Two years later, the program was opened further to those diagnosed with any cancer, as well as patients with post-traumatic stress disorder. Texas Original grew alongside the program, adding customers and increasing revenue, Richardson said, until about 2023. He blames the proliferation of hemp dispensaries for this setback.

During the first couple of years after Texas legalized hemp, shops such as those we tested were mostly selling an extract called cannabidiol, or CBD. It doesn’t get users high, but it provides a pleasant sensation. Under a wellness banner, stores began selling gummies and tinctures to help with relaxation and sleep.

Chemists and botanists in the hemp industry soon discovered that they could extract psychoactive compounds from hemp, such as THCa, thus skirting federal and state laws focused on delta-9 THC levels. During the COVID-19 pandemic, hemp stores began to sell products with high levels of delta-8 THC, a compound similar to delta-9 THC but not addressed explicitly in state or federal law. Eventually the focus shifted to THCa.

With products that looked, smelled, and acted like marijuana, hemp dispensary sales increased. Still, the industry feared the state would soon enact new regulations. But a 2021 bill seeking to regulate delta-8 levels died in a legislative committee, and later that year, a new state health department rule that would have prohibited such hemp-derived cannabis strains was successfully challenged in court. (That case is pending before the Texas Supreme Court.) After the 2023 session also ended without legislative action, Texas’s hemp industry exploded.

Dispensary owners are confident they’re on the right side of the law. “Just like anything in Texas around cannabis, we have to kind of interpret the law, you know, for ourselves and talking to lawyers and stuff,” said Todd Harris, the co-owner of Happy Cactus Apothecary, a dispensary with two stores in Austin. Texas Monthly purchased two joints from its location across the street from a high school in South Austin. They were 23.2 percent THCa and also 1.78 percent delta-9 THC.

“After doing our due diligence,” Harris told me, “we do feel comfortable and confident that THCa is legal in Texas, and THCa is the same thing as the marijuana that you get in Colorado and California.” 

If you’re confused by this hazy cloud of legality surrounding cannabis, you aren’t alone. At a recent legislative hearing, state senator José Menéndez, a San Antonio Democrat, reflected on the spread of legal hemp stores selling products chemically similar to marijuana. “In a way, inadvertently, we passed a law that sort of legalized the use of cannabis in the state of Texas,” he said.

A couple of minutes later, Senator Charles Perry, a Republican from Lubbock, responded. He had sponsored the 2019 bill legalizing hemp because he wanted to help farmers in his mostly rural district by offering them access to a new potential cash crop. “To be clear, Texas did not legalize pot—knowingly or unknowingly,” he said. “This started out as a federal farm bill for the benefit of agriculture, and it has been bastardized as we were fearful it could be. It is time to fix it.” It is widely anticipated that Perry or another senator will file applicable legislation for the 2025 session, but it isn’t clear whether such a bill will attempt to stamp out the new hemp industry or envelop it in new regulations.

Of course, all of the legal wrangling over levels of delta-8 and THCa is a little beside the point. All eight samples that Texas Monthly purchased and tested exceeded the 0.3 percent delta-9 THC level that defines illegal marijuana. We didn’t buy them from dealers in apartments with closed blinds. We bought them in licensed stores with plenty of natural light, moody music, and tactful displays.

“They have jammed open a loophole, and they are operating miles outside the intent of both federal law and state law,” Richardson told me. “It’s a nationwide problem. But the biggest market in the nation now, where all this product is being sold into, is Texas.”

Richardson says a surfeit of readily available unregulated marijuana posing as hemp is eating away at his business. He grows all of his cannabis in South Austin, and his employees have to drive doses all over the state. DPS sometimes springs surprise testing on top of its routine monthly inspections. Richardson can’t sell any cannabis product that registers more than 1 percent delta-9 THC. And his customers require medical prescriptions.

Meanwhile, hemp dispensaries can sell significantly more-potent cannabis at lower prices, from stores conveniently located in 238 of the state’s 254 counties. Unless changes are made, it is likely that the Texas medical program will cease to function, Richardson said. “It is not an economic program for the operators.”

The pro-hemp crowd talks a lot about the economic benefits the new industry provides: the thousands of commercial leases and billions of dollars in payroll. Texas could join the nearly half of states that have legalized recreational marijuana. This would allow for increased tax revenues and improved oversight of the safety of cannabis products, much as with alcohol and tobacco. But so far, the Legislature hasn’t shown much inclination to head down that path. Opponents of legalization argue that what they call “intoxicating hemp” is dangerous and out of control. “We can’t continue to put business interests over the lives of our youth and communities,” said Nicole Holt, the CEO of Texans for Safe and Drug-Free Youth. “We want to ban all cannabis and cannabis-derived products.”

The flourishing hemp industry is preparing to fight in the courts and the Legislature to keep its smoke-blowing golden goose happy and healthy. Marco Krause, who runs an online hemp store, recently told state senators in a hearing that “whether it was the intent of the Legislature or not, you legalized it.” Now, he said, it’s time to pass rules to require better testing and age limits. (There is no law preventing the sale of hemp to minors.) “The cat is out of the bag. We all want to work with you to regulate this.”

Paul Zain, co-owner of Greenbelt Botanicals, where I bought White Wok, says Texas has gone too far to turn around. “It does feel like we legalized marijuana,” he said, adding that the response shouldn’t be to destroy a billion-dollar industry. “Would you rather people be buying a product from a regulated Texas market or buying on the black market?”

As the situation stands now, is there even a difference?

Michael Hardy, J.K. Nickell, and Sandi Villarreal contributed to the reporting of this story.