Bill to Expand Use of Medical Marijuana is Poised to Pass this Session

Texas has not
legalized the recreational use of marijuana. It has, however, created a very
limited exception for the use of low-THC cannabis for patients with certain
diseases. Now a bill to expand the cases where the prescription and use of
“medical marijuana” will be legal.

In 2015, the
legislature enacted the Texas Compassionate-Use Act and authorized low-THC
cannabis to be prescribed to treat a patient with intractable epilepsy. This
bill immediately prompted calls to increase the conditions eligible for
treatment using low-THC cannabis. This legislative session, Rep. Klick filed H.B.
3703 which responded to those calls. An amended
version of the bill would change current law relating to the prescription
of low-THC cannabis for medical use by certain qualified physicians to patients
with certain medial conditions, including (1) epilepsy (rather than intractable
epilepsy); (2) a seizure disorder; (3) multiple sclerosis; or (4) spasticity;
(5) amyotrophic lateral sclerosis; (6) autism; (7) terminal cancer; or (8) an
incurable neurodegenerative disease.

The House version
of the bill was
amended in the Senate May 22, 2019. The amendments drew sharp questions
from several Senators who are concerned the bill might “open the door to the
legalization of recreational marijuana use” as
the Texas Tribune reports:

Marijuana advocates were handed an unlikely victory Wednesday after the Texas Senate advanced a bill greatly expanding the list of debilitating medical conditions that can legally be treated by cannabis oil in the state.

Although the upper chamber’s leadership once opposed bills that would relax the state’s pot policies, the Senate unanimously voted in favor of a bill by state Rep. Stephanie Klick, R-Fort Worth, that expands the state’s Compassionate Use Program, which currently allows the sale of cannabis oil only to people with intractable epilepsy who meet certain requirements.

The bill now heads back to the Texas House, where lawmakers can either approve the Senate changes or opt to iron out their differences in a conference committee before lawmakers adjourn in five days. Klick did not immediately respond to a request for comment on whether she’d accept the Senate changes to her bill.

If the differences
between the House and Senate versions can be reconciled and the bill is signed
by the Governor, workers’ compensation claims professionals will have a strong
motivation to assess the impact of the new law on how they handle claims.

One of the first
areas to be examined will be how the use of medical marijuana will impact the
intoxication defense found in the Act. Tex.
Labor Code Ann. § 406.032(1)(A) provides that an insurance carrier
is not liable for compensation if the injury occurred while the employee was in
a state of intoxication. When a carrier properly raises the defense of drug
intoxication based on a blood test or urinalysis in evidence showing the
presence of a controlled substance or controlled substance analogue, as defined
by section 481.002 of the Health and Safety Code, the burden of proof then
shifts to the employee to prove the employee had normal use of his or her
mental or physical faculties. Tex. Labor
Code Ann. § 401.013(c).

While there is no
express exception in the statute for medical marijuana, drug intoxication does
not include the loss of normal use of mental or physical faculties resulting
from the introduction into the body of a substance taken under and in
accordance with a prescription written for the employee by the employee’s
doctor. Tex. Labor Code Ann.
§401.013(b)(1). Therefore, if a claimant had ingested a legally prescribed dose
of low-THC cannabis as prescribed by her physician, and sustained an otherwise
compensable injury, there is a strong argument that the intoxication defense
would not apply.

Because Texas has
not legalized recreational marijuana, and because the legal use of low-THC
cannabis has been constrained, carriers in Texas have not had to face the
problems that have been encountered in other jurisdictions when dealing with
medical marijuana issues, such as financial institution limitations due to
federal status and pre-employment drug testing. The increased access to low-THC
cannabis will increase the likelihood that workers’ compensation carriers will
face these questions in Texas at some point.

All bills must pass both the House and the
Senate and avoid a gubernatorial veto in order to become law. The last day of
session is May 29, 2019.