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SPRING BRANCH — When kids walk into the gas station near the high school in this rural stretch north of San Antonio, they come face to face with Texas’ booming market in psychoactive hemp derivatives.

Just inside the door, a glass cabinet entices shoppers to a smorgasbord of fruity and doughnut-flavored vape pens dressed in vibrant, shiny packaging. The store, like many across Texas, is promoting its collection of delta-8 and other new strains of purportedly legal tetrahydrocannabinol, or THC, the mind-altering part of the cannabis plant.

Any adult over age 21 can buy the vapes at this Valero. But if the Comal Independent School District catches one of its students down the road at Smithson Valley High School with a pound cake-flavored vape, they may end up in county jail, facing felony charges that would follow them the rest of their life.

School officials and local law enforcement are attempting to stymie the sometimes dangerous youth vaping craze by drawing a hard line. Students are offered $100 for anonymously reporting classmates with THC vape pens to the police.

And since sheriff's deputies assigned to the schools often can tell if a vape pen contains THC, but not whether it’s delta-8 or the illegal delta-9 cannabis oil, they assume the worst, slap on the cuffs and leave it for someone else to figure out.

That’s what happened to Myles Leon, a Smithson Valley senior arrested at school in October with what he says was a delta-8 vape pen. At 17, he is considered an adult in Texas’ criminal system, facing a felony charge based on the as yet unproven assumption that the vape pen he was caught holding might have contained the illegal delta-9.

“They instantly just think it’s [illegal] THC. I don’t think they really care about the difference,” Myles said in December, hunched next to his mother on their living room couch. “Because even I said that it was delta-8 and it didn’t matter. They’re still gonna arrest me anyways.”

When Texas legalized hemp in 2019, the lower-potency THC naturally found in small amounts in the cannabis plant — delta-8 — suddenly no longer fit the state’s definition of illegal marijuana and THC. The market capitalized on the notion of a legal strain of THC, and companies began boosting the concentration of delta-8 to make hemp-derived vape pens and edibles that produce a high similar to pot.

The legality of these lab-produced delta-8 products is still under scrutiny, but for more than a year, stores and users have freely sold and purchased them without issue. If teens get caught with vape pens that are proven to contain only delta-8, the worst criminal penalty they would most likely face would be a ticket, similar to getting caught with cigarettes or alcohol.

But delta-9 THC, the most prolific psychoactive compound in marijuana cannabis plants, remained illegal in Texas in concentrations higher than 0.3%. Vape pens with marijuana-derived extracts are legal in many states, like New Mexico and Colorado, but not in Texas, and the criminal punishments for such derivatives are harsher than for marijuana.

Possession of even one illegal THC vape pen can carry a punishment of up to 10 years in prison and a lifelong label that makes it more difficult to get into college, get a job or find housing. Having up to 4 ounces of flower marijuana is a misdemeanor.

In Comal County, deputies have arrested students on felony charges, not knowing what their vape pens actually contained.

Delta-8 products, derived from legal hemp, are available in Texas, but delta-9 THC products, made from marijuana, remain illegal in concentrations higher than 0.3%. Credit: Sergio Flores for The Texas Tribune

Soft-spoken and awkward in his tall frame, Myles said he walked into a locker room before class one day and saw a few other kids vaping. E-cigarettes have become alarmingly commonplace in schools across the country, prompting the American Medical Association to deem teen vaping a public health epidemic and leading to increased regulation by the U.S. Food and Drug Administration. The FDA has also urged teens not to vape THC, as the unregulated products have been linked to numerous lung injuries and deaths.

The kids in the locker room told Myles the pen contained delta-8, and he asked if he could have a hit, he said. It’s a decision he has regretted since.

A coach walked in while Myles had the pen in his hand and ushered him into the principals’ office, he said. The pen was unlabeled, as many are, but sported a cannabis leaf symbol, so school officials brought in the sheriff’s deputies.

The district can’t comment on specific students, but spokesperson Steve Stanford said the district works with the sheriff’s office to address THC vaping. For school disciplinary action, he said it’s up to the student to prove a THC pen is legal, not for the school to prove it’s illegal.

“Even if it is determined that it is a legal derivative, the student is cited for being in possession of drug paraphernalia” and put into a disciplinary school for a time, he said.

Myles said he was cooperating as much as he could, handing over the pen and answering questions. Still, he soon felt metal on his wrists and was walked in handcuffs across campus to the sheriff’s office at the school so deputies could run a test to detect THC in the vape oil.

Police field test kits, like those used by the Comal County sheriff’s office, can quickly flag if vape oil likely contains THC, but not whether it’s derived from legal hemp or illegal marijuana.

“That test is a presumptive positive, and that provides the probable cause for an arrest,” Cpl. Shawn Trevino said when asked about making felony arrests based on an ambiguous test.

It may be enough for the sheriff’s office, but it’s often not for prosecutors or courts. Republican Comal County District Attorney Jennifer Tharp said her office doesn’t accept drug cases without first looking for lab results. So after a THC arrest, the Comal County sheriff’s office sends vape cartridges off to state crime labs for further testing.

But state labs, which can take months or years to return results to police and prosecutors in any criminal case, have been able to distinguish between different strains of THC in vape oils only since September. They still can’t tell edibles apart.

Still, Myles was soon in the back of a squad car, on his way to the Comal County Jail.

“I get I had to face the consequences, but I feel like it’s a little severe,” he said quietly. “I know since I’m underage it’s not legal for me, but I know if I was of age and I wasn’t on school it probably would be legal for me.”

Since he’s 17, Myles was booked into the adult county jail and kept in a holding cell with grown men for hours. Federal law meant to prevent sexual assaults in incarcerated settings requires people under 18 to be housed separately from adults, but Texas doesn’t make local jails abide by such laws, according to Brandon Wood, director of the Texas Commission on Jail Standards.

While Myles’ parents scrambled to figure out how to get their son out of jail, the teen said he sat in the cell for about 12 hours till nearly 10 p.m., listening to other inmates talk about shootouts and drugs he’d never heard of before.

For the alleged crime of possessing an illegal vape pen, his bail was set at $5,000. Luckily, his parents could afford to free him.

“These are real criminals committing actual hard crimes,” he said. “And I’m just there because I was smoking at school.”

Hazy legality

Since the legalization of hemp production federally in 2018 and in Texas in 2019, criminal enforcement of marijuana laws has gotten complicated. As in Myles’ case, police often can’t tell the difference between legal and illegal cannabis anymore, and at least several prosecutors have refused to pursue many marijuana cases without test results that state labs couldn’t produce until recently.

Plus, with polls increasingly showing that a majority of Texans support marijuana legalization, some district attorneys and police departments no longer pursue most low-level pot possession crimes. In 2022, Texas prosecutors filed 70% fewer misdemeanor marijuana possession charges than in 2018, down from nearly 71,000 to about 21,500, according to state reports.

Not all decisions were political — money also matters since pot cases are now more difficult to win in court without expensive lab tests. Some law enforcement officials have decided it isn’t worth their resources or those of the notoriously backlogged crime labs, which also identify harder drugs, like fentanyl, and test DNA in rape kits.

“Why am I going to invest probably $1 million-plus to train the one analyst I have doing this stuff? … I’ve got mountains of pills that are full of fentanyl and meth,” said Peter Stout, president and CEO of the Houston Forensic Science Center.

Every school district has its own approach to handling the increase in vaping and THC. In the school district just south of Comal ISD in North San Antonio, a Northeast ISD spokesperson said school police file reports on students caught with THC vape pens only if they have multiple pens. Even then, they don’t typically make arrests, leaving it up to the district attorney to decide whether those kids should be arrested or face criminal charges later.

In Round Rock, north of Austin, an official said the district has tried to handle THC offenses without seeking criminal charges, except in cases in which students are suspected of selling or distributing the substance. But Aaron Grigsby, a former Round Rock ISD police officer and Department of Public Safety captain, said the district police department required him to file felony reports against students caught with vape pens, even though they could have contained delta-8.

Grigsby, who helped implement DPS’ program to regulate medical cannabis, said he left the school department because he otherwise would have been forced to write reports calling a vape pen a felony substance when he didn’t feel he had enough suspicion to say it was.

“I’m not comfortable doing this anymore,” he told The Texas Tribune shortly before leaving the school district in October. “Students don’t need to be a test bed for whatever the law says on delta-8.”

After hemp was legalized and the alternative THC market exploded, Texas’ state health department attempted in 2021 to halt delta-8 sales by classifying the hemp-derived THC strain as a controlled substance, like delta-9. Cannabis businesses, however, sued the department, and courts have temporarily nixed that classification while the case is pending. It’s unclear when a final ruling will come down.

At the state Capitol, legislation this year includes bills aiming to decrease criminal punishments for THC possession, as well as measures to ban the sale of delta-8 and other THC products. Similar bills failed in 2021, but it’s unclear how they will fare in the ongoing legislative session that ends in May.

Last session, the GOP-led Texas House passed a bill to make low-level marijuana possession a fine-only crime, which would have stopped arrests for less than an ounce of the drug. The more conservative Senate, however, didn’t move on the bill. Another unsuccessful measure would have lessened the penalty for possessing a small amount of marijuana concentrates, like delta-9 THC vape oils and edibles, from a felony to a misdemeanor crime, as is the case for flower marijuana.

Conversely, a failed 2021 bill sought to ban the sale of delta-8 and other THC synthetically derived from hemp, since the bill's author believes, like the state health department, the substance is already illegal.

A law and order approach

Finishing up his senior year of high school, Myles works weekends at the local barbecue restaurant, and he’s trying to decide on a major at his community college in the fall. He’s also waiting to see if he will be indicted.

After his arrest in October, several teachers wrote to the principal advocating leniency, each describing Myles as a model student who made a mistake. Still, being caught with a suspected felony drug on campus, he was expelled for 30 days and sent to a disciplinary school for the rest of the fall semester.

Myles’ mom, Amy Leon, said she doesn’t want her kid smoking, and she and her husband grounded Myles after his arrest. But more than that, she is livid that the school handed her child off to police for what she deems overly harsh treatment. She has been pushing the school since to add more preventive programming — to help kids instead of tossing them in jail.

“Obviously he shouldn’t be doing this on school grounds, but shoot, this is intense,” Leon said. “If he was rolling a joint in the school, it would have been a lot better.”

Comal ISD officials said administrative disciplinary measures, including expulsion, are clearly outlined in school policy and state standards. As far as law enforcement’s involvement, Assistant Superintendent Corbee Wunderlich said district officials approach sheriff’s deputies because students pass vape pens around and get dangerously high at school. Plus, school employees can’t tell whether the substance is illegal.

“We want to know what it is, number one,” Wunderlich said. “And we don’t want it to endanger our students on our campuses.”

The district and sheriff’s office also work with the local Crime Stoppers affiliate, which pays for anonymous tips that lead to arrests, created as a way for people to send in tips about things like murders for which police had no suspects. In Comal ISD, tips are often received for vapes and dab pens, which heat wax instead of oil, according to Jakob Willmann, the sheriff’s office coordinator for the program.

A vape pen report that leads to an arrest gets you $100, delivered anonymously via code words and locations, Willmann said.

First: A student holds up a pen they were given during a community meeting about vaping and drug use at Smithson Valley High School. Last: Community members listen to a presentation about vaping and drug use. Credit: Sergio Flores for The Texas Tribune

This month, the district and sheriff’s office hosted a series of community nights at local schools to address the vaping crisis and other drugs. In the Smithson Valley auditorium, Trevino stood in front of about 25 parents and warned that kids were handing off THC vape pens to one another and selling them through the popular Snapchat app.

He, along with the county’s juvenile court judge, warned that kids caught with such devices could end up in prison for 10 years or, if they are between 10 and 16, detained in a youth detention center far from home.

No one mentioned that many legal THC vape pens are sold at the Valero the parents just drove past. There was also no discussion of substance abuse programs or help. It was a warning that THC could land their kids in jail, and other drugs, like fentanyl, could put them in a morgue.

It’s unclear how many other teens have been arrested at Comal ISD, as multiple sheriff’s officials said the office did not track the information. One department document listing incidents at Comal ISD schools, however, showed at least seven juveniles and two people 17 or older were arrested last semester for allegedly possessing a controlled substance in the penalty group most associated with THC oil.

Tharp, the district attorney, said THC vape cases from schools haven’t hit her desk yet, likely because the state crime labs only just started being able to distinguish THC strains in September.

“But we might be getting them soon,” she said at the school event this month.

Meanwhile, Myles is biding his time. Largely, he’s living life as he did before the arrest, except he has to check in weekly with the bail bondsman and can’t leave the state without permission. He’s hopeful the case will eventually be tossed, but he’s putting his faith in the hands of the other teen who handed him the vape pen back in October.

“The guy told me it was delta-8. But it wasn’t mine, so I don’t know,” he said quietly. “But that’s what I’m hoping it was.”

Like Myles, his mother also hopes the felony case will be tossed once lab results come back, whenever that may be. But she shared none of Myles’ expectations, often paired with youth, that things would simply work out. Fear shone in her eyes. “I hope it’s gonna go away. I know I think it’s stupid, but I’m not the judge here,” she said. “And they could make him an example. And I don’t know what’s gonna happen. And he still has a felony looming. And that’s terrifying.”

James Barragán contributed to this report.

Disclosure: Valero has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/22/texas-delta-8-marijuana-hemp-arrests/.

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