Texas Supreme Court
Texas Department of State Health Services v. Sky Marketing Corp.
No. 23-0887 5/1/26
Issue:
Did the commissioner of the Department of State Health Services have authority to declare manufactured delta-8 THC a controlled substance?
Holding:
Yes. The Texas Farm Bill from 2019 did not legalize products with a delta-9 THC concentration under 0.3 percent, and the commissioner appropriately regulated them as controlled substances under the Controlled Substances Act Schedules. “The legislature has charged the commissioner of the Texas Department of State Health Services with primary responsibility for overseeing the civil schedules of controlled substances. The statutory framework consciously, purposefully, and expressly authorizes her—indeed requires her—to undertake this task with a substantial and unusual degree of discretion. That legislative choice is at least in part explained by the need for the executive branch to be capable of responding rapidly and authoritatively to emerging threats to public safety from the development of illicit and harmful substances.” Read opinion.
Commentary:
The outcome of this case depended on the SCOTX’s interpretation of the text, structure, and statutory history of the Texas Controlled Substances Act, through which the legislature granted the commissioner broad discretion to “establish and modify the…schedules of controlled substances” in Schedules I-V of §481.032(a) of the Texas Health & Safety Code, subject to the procedural safeguards listed in §481.034. Ultimately, the SCOTX emphasized that any change to this discretion must come from the legislature, not the judiciary. The practical effect of this opinion is that the temporary injunction put in place by the trial court to curb the commissioner’s declaration is reversed, so expect resumed regulation and proscription of products containing manufactured delta-8 THC.
Texas Court of Appeals
State v. Ribbeck
No. 14-24-00756-CR 5/5/26
Issue:
Did the trial judge correctly grant the defendant a new trial based on the “interest of justice”?
Holding:
No. The Court reversed the order granting a new trial and remanded the case with instructions for the trial court to reinstate the judgment of conviction and sentence. The Court first noted that “interest of justice” is not an independently valid reason for granting a new trial. In this case, the defendant and his trial attorney decided that the defendant would not testify, which enabled the defense to exclude 21 of 22 extraneous offenses from coming in at trial. However, after the defense rested, the defendant told his trial attorney that he would like to testify. The trial attorney told the defendant that was not possible since they had rested. In a motion for new trial, the defendant contended his trial attorney’s tactics had deprived him of his Sixth Amendment right to testify. The trial judge granted the defendant’s motion for new trial based on the denial of his constitutional right to testify and in the “interest of justice.” The State argued that the trial judge lacked authority to grant a new trial because the defendant did not assert them in his motion for new trial. The Court agreed that the defendant had not cited McCoy v. Louisiana or any similar case, had not discussed or asserted structural error, and did not argue that he was entitled to a new trial regardless whether counsel was ineffective and even if he was effective. “Because the only potentially valid claim for a new trial asserted in [the defendant’s] motion for new trial was ineffective assistance of counsel [under Strickland], and because the record will not support a new trial on that legal ground, the trial court’s order is not supportable solely in the ‘interest of justice.’” Read opinion.
Commentary:
“In the interest of justice” is not, in and of itself, a proper ground for a trial court to grant a new trial. Rather, a trial court may grant a new trial “in the interest of justice” only if the defendant: (1) timely alleges a valid legal basis for relief in the defendant’s motion for new trial, (2) produces evidence or points to record evidence that substantiates his legal theory, and (3) shows prejudice (unless the error is structural). This opinion concerns the first of these requirements, i.e., whether the defendant adequately pled in his motion for new trial (or even articulated in the hearing) the basis for relief that the trial court relied upon when it granted a new trial—a McCoy-type violation of the defendant’s fundamental right to testify, which is a structural error. This case will be very useful to prosecutors because not only does it clearly explain that “[a] McCoy-type claim is substantively different from an ineffective assistance of counsel claim” and, thus, must be specifically pled, but it illustrates how thoroughly trial and appellate courts should examine the defendant’s pleadings and arguments to ensure that they comport with the legal basis for relief that underlies the trial court’s order granting a new trial.