Five years after Texas legalized medical marijuana for people with debilitating illnesses, advocates and industry experts say the state’s strict rules, red tape and burdensome barriers to entry have left the program largely inaccessible to those it was intended to help.

But with a new legislative session gaveling in next month, some Texas lawmakers see an opportunity to fix the state’s medical cannabis program — known as the Compassionate Use Program — by further expanding eligibility and loosening some restrictions so Texas’ laws more closely resemble those of other states that allow the treatment.

There are 3,519 Texans registered with the state to use medical marijuana, though advocates say 2 million people are eligible based on current law.

Texas’ program pales in overall participation and scope compared with other states: It has fewer enrolled patients and businesses than most other states with medical marijuana programs. At least some form of medical marijuana is legal in 47 states nationwide, but Texas’ restrictions put it in the bottom 11 in terms of accessibility, according to the National Conference of State Legislatures.

“We’re pretty dang close to the bottom. We’re pretty far behind,” said state Sen. José Menéndez, D-San Antonio, referring to how access to Texas’ medical marijuana program fares compared with other states. Menéndez will push legislation in the next session to further expand the program.

Oklahoma, home to 25 million fewer people than Texas, has more than 100 times as many registered patients who can access medical marijuana. This December, two years after the passage of Oklahoma’s medical cannabis program, there were 365,464 people enrolled. To the east, Louisiana, with a fifth of Texas’ population, had 4,350 patients in 2019, and to the west, New Mexico had enrolled more than 82,000 people in its program as of the same year.

Industry experts say Texas’ narrowly designed program is also hindering a market that could help drive Texas’ economic recovery from the coronavirus pandemic.

“Here’s this … billion dollar bird’s nest that’s sitting on the South Lawn of the Capitol, waiting for the right legislator to come pick it up and take it inside, and to present it to the other legislators and say, ‘Here you go. Here’s a way for us to … [help] our citizens,”’ said Morris Denton, CEO of Compassionate Cultivation, one of the state’s three licensed medical cannabis businesses, at this year’s Texas Marijuana Policy Conference in November.

The business costs in Texas associated with the medical marijuana industry are sky high. At the same time, advocates and business leaders already in the market complain the state has one of the most restrictive caps on the amount of tetrahydrocannabinol, or THC — the psychoactive ingredient in marijuana that makes people feel high — that medical cannabis products are legally allowed to contain. Only six states that allow medical marijuana have THC caps lower than Texas’, according to the National Conference of State Legislatures.

The program is so limited that the National Organization for Reforming Marijuana Laws doesn’t recognize it as a true medical marijuana program. Instead, the group labels Texas a “medical CBD” state for its emphasis on cannabidiol — derived from hemp and containing only traces of the psychoactive compounds found in cannabis — over THC for medicinal use.

Jax Finkel, executive director for Texas NORML, said the reason Texas is often not considered a true medical marijuana state is because it caps medical cannabis at 0.5% THC, and over-the-counter hemp products are capped at 0.3%. That means people who get prescriptions from their doctors and pay for medical marijuana would be getting a product that has only marginally more THC than a CBD-oil or tincture purchased at a local store.

“While there is a difference there that has an added value and there is also value to being a registered patient, that does create somewhat of a problem,” Finkel said. “And so a lot of people don’t really see our program as a fully functioning program.”

But some Texas lawmakers hope to change that. As of Dec. 14, at least seven bills had been filed by lawmakers seeking to expand the Compassionate Use Program. Menéndez is authoring a far-reaching bill that would make more patients eligible, strike the THC cap and lower business fees, among other changes.

“I think we’d see a lot more participation if we had a real medical cannabis program,” said Heather Fazio, director of Texans for Responsible Marijuana Policy.

In the past, medical cannabis bills have faced opposition from lawmakers who see it as a path to legalizing recreational marijuana, Menéndez said. But he says expanding the program will put decisions about who can access the medicine into the hands of doctors.

When the Senate voted to include more patients in 2019, state Sen. Brian Birdwell, R-Granbury, said he was concerned the legislation was more of a “cliff” than a slippery slope.

“I come at this with a highly guarded sense of danger of the direction that this might take us to recreational use,” Birdwell said. “I wouldn’t be comfortable going any further than this because of what I’m seeing in Colorado, Washington and Oregon and what’s happening in those states. I am highly guarded.”

A push to expand the law

Advocates say among the biggest failures of Texas’ medical cannabis program is its narrow “disease profile” — the list of conditions that qualify Texans to register as medical cannabis users. Fazio said most states with successful programs count post-traumatic stress disorder and chronic pain among qualifying conditions, and neither is on Texas’ list.

In 2015, Texas’ list of qualifying medical conditions had one item: intractable epilepsy. The 2019 expansion of the law added diseases such as terminal cancer, multiple sclerosis, Parkinson’s disease and Lou Gehrig’s disease, or ALS.

The number of registered patients has steadily climbed since 2017. After lawmakers tweaked the program in 2019 to include more patients, the number of registered patients more than doubled from about 1,300.

But the bar for eligibility is still high. This legislative session, Fazio is pushing lawmakers to expand the state’s disease profile to include PTSD and chronic pain, which would particularly benefit Texas’ veteran population — the second largest in the country as of 2017.

One Texan who is left out of the state’s program is April Martinez, a U.S. Army veteran from Killeen. In 2006, Martinez was a chemical specialist in Afghanistan as part of a signal unit.

After returning home, she has experienced constant migraines, muscle fatigue and cognitive issues. Martinez said she has tried everything from Botox to Alzheimer’s medication to treat her pain.

She moved to Washington for a few years and gave medical cannabis a try, and saw immediate results. She said she stopped taking seven of her eight medicationsx and could once again read, spend quality time with her kids and go out in the sun without experiencing excruciating pain.

“It felt like I was finally starting to see the sun through the clouds, and then we came back to Texas once my husband retired from the military,” Martinez said at a panel during the Texas Marijuana Policy Conference in November.

Martinez doesn’t qualify to use medical cannabis under Texas law.

“Having to look at the rest of your life, you can see every single day is, you are just going to feel beaten up and overwhelmed and not enough energy and everything that you do is going to cause you some amount of pain, is a really hard way to imagine the rest of your life,” Martinez said in an interview with The Texas Tribune.

Advocates say they want lawmakers to leave the decision-making to doctors. Louisiana and Oklahoma, among other states, allow physicians to decide who qualifies for medical cannabis. Under Texas’ current law, Menéndez said, lawmakers pick winners and losers through their strict criteria for medical cannabis use.

“I don’t understand what the lack of trust in Texas and the people of Texas is, because that’s what this is,” he said in an interview. “At the end of the day, they’re trying to keep cannabis out of the hands of everyone except for the people who they’ve laid out that can have access to it.”

The lack of autonomy for patients and physicians is a major issue in Texas’ medical marijuana system, said Dr. Robert S. Marks, chief executive officer of Diagnostic Pain Center in Austin. Marks is one of the 240 Texas physicians who can enter patients into the compassionate use registry.

He said that while the system is better than nothing, it’s a bit “disjointed” and could be more effective. The list of patients who can receive medical cannabis is both specific and broad, leaving it “ripe for both exploitation as well as limitation,” Marks said. For example, he said the list allows for people to receive cannabis for “spasticity,” a broad term but a legitimate reason to use cannabis.

“It’s challenging due to the fact that there are a lot of people that don’t qualify based on this list of diagnoses,” Marks said at a panel during the Texas Marijuana Policy Conference. “But yet there’s no question that this particular medicine would be a safer, viable option compared to alternatives.”

By allowing for more autonomy, Marks said, the state’s system could cut down on the time it takes physicians to provide medical cannabis and better satisfy patients with products that work.

“Cannabis is the only medicine where doctors are being told a dosing maximum, which is an incredible low dosage of THC,” Fazio said. “We trust doctors with far more dangerous substances.”

A potential boon for business

Texas officials approved three companies to grow and sell medical cannabis in 2017, two years after the Compassionate Use Program was signed into law. Under the watchful eyes of state regulators, those three companies serve about 3,500 patients across Texas.

But they say that’s not enough patients for businesses to be profitable.

Together with high licensing fees and strict rules for transporting and storing inventory, it is challenging — and costly — for medical cannabis businesses to operate in Texas, said Denton, of Compassionate Cultivation. For example, the $7,300 application fee to open a dispensing organization in Texas is nearly three times as costly as in Oklahoma. Louisiana’s fee is just $450.

“The capital requirements in order to build out a vertically integrated business are not insignificant; in fact, they’re very high,” Denton said. “The ability to make money in this kind of an industry is nonexistent at this point.”

Denton says his business alone has the ability to serve the entirety of the state’s legal market. In Oklahoma, more than 9,500 licensed businesses collectively serve the state’s more than 365,000 patients. Louisiana, with 4,350 patients as of 2019, has approved two businesses to grow medical cannabis and nine to sell it.

Medical marijuana is already an economic engine in other states. In Oklahoma, which has the biggest program in the country on a per capita basis, sales since 2018 rose above $1 billion last month, according to reports.

During the 2021 legislative session, Compassionate Cultivation will also ask lawmakers to allow licensed companies to open retail, or dispensing, locations across the state. Under current regulations, the businesses are prohibited from storing inventory outside their facilities, making it difficult to deliver medicine to patients hundreds of miles away, Denton said.

“I believe that this business is arguably the most regulated business in the state of Texas right now,” Denton said. “We operate a business ... in a fishbowl, under a microscope.”

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