In Texas Department of State Health Services v. Crown Distributing LLC, the Texas Supreme Court held that a Texas prohibition on the manufacture and processing of hemp for smoking did not violate the Texas Constitution’s guarantee that no citizen “shall be deprived of life, liberty, property, privileges or immunities . . . except by the due course of the law of the land.”[1]

The last major case at the Texas Supreme Court to consider the due-course clause’s protections for economic liberty was a lawsuit brought by the Institute for Justice, Patel v. Texas Department of Licensing & Regulation. In that case, a majority of the court held that state-imposed training requirements for eyebrow threaders seeking to practice their occupation—which Texas defined as falling within the scope of licensed cosmetology—were so arbitrary and unreasonable that they violated the Texas Constitution’s guarantee of the due course of law.[2] The dissenting opinion in that case, authored by Chief Justice Nathan Hecht, accused the majority of unleashing the “Lochner monster” and “stray[ing] far from the Judiciary’s proper sphere of authority” by weighing in on the reasonableness of economic legislation.[3]

In Patel, the State of Texas had agreed with the plaintiffs that the Texas Constitution’s due-course clause protected the economic liberty interest asserted by the plaintiffs but disputed the claim that the challenged licensing scheme was irrational.[4] In Crown Distributing, however, the parties disputed whether the manufacture and processing of smokeable hemp implicated an interest protected by the due-course clause at all.[5]

The opinion of the court, authored by Justice Jeffrey Boyd and joined by all of his colleagues, agreed with the State of Texas that the manufacture and sale of smokeable hemp was not an economic-liberty interest protected by the due-course clause.[6] The court noted that the “due-course clause is not so broad as to protect every form and method in which one may choose to work or earn a living, and some work-related interests do not enjoy constitutional protection at all.”[7] The court cited federal due-process cases describing the constitution’s protections as limited to the right to engage in “common occupations”[8] or a “lawful calling, business, or profession.”[9]

After analyzing the history of cannabis prohibitions and subsequent decriminalization efforts that led Congress to authorize commerce in hemp—defined as portions of the cannabis plant with a concentration of the intoxicating chemical THC of no more than 0.3%—the court concluded that in light of the history of prohibitions of cannabis, the manufacture and processing of smokeable hemp is not the sort of “common occupation” or “lawful calling, business, or profession” protected by the due-course clause.[10] The court analogized the plaintiffs’ business to “gambling and racetrack ownership” and other businesses that were historically subjected to vice regulations, which the government could prohibit without implicating the due-course clause’s protections of economic liberty.[11] Having concluded that the plaintiffs’ claim did not implicate the protections of the due-course clause, the court found no need to analyze whether the challenged prohibition was unreasonable under the standard of review articulated in Patel.[12]

Justice Evan Young wrote a concurring opinion joined by Chief Justice Hecht, Justice John Devine, and Justice Jimmy Blacklock. Though Justice Young agreed with the outcome of the court’s opinion, he argued that the court’s precedents have not provided a fully satisfactory theoretical framework for interpreting the scope of the Texas Constitution’s guarantee of the due course of law.[13] Justice Young noted that this guarantee does not necessarily need to mirror the protections of the Due Process Clause in the U.S. Constitution’s Fourteenth Amendment—especially not as interpreted by the U.S. Supreme Court in opinions issued long after the Fourteenth Amendment’s ratification.[14] Justice Young then sketched out a potential basis for interpreting the due-course clause as protecting only the right to fair legal procedures and not substantive individual rights.[15] Finally, Justice Young emphasized the important role that parties, advocates, lower courts, amici, and scholars play in helping the court resolve difficult issues of constitutional interpretation.[16]

 


[1] Tex. Const. art. I, § 19.

[2] Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 73 (Tex. 2015).

[3] Id. at 138 (Hecht, C.J., dissenting).

[4] Tex. Dep’t of State Health Servs. v. Crown Distributing LLC, 647 S.W.3d 648, 653 n.16 (Tex. 2022).

[5] Id. at 653.

[6] Id.

[7] Id. at 654.

[8] Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (emphasis added).

[9] Dent v. West Virginia, 129 U.S. 114, 121 (1889) (emphasis added).

[10] Crown Distributing LLC, 647 S.W.3d at 657–64.

[11] Id. at 655.

[12] Id. at 653.

[13] Id. at 664 (Young, J., concurring).

[14] Id. at 675.

[15] Id. at 675–78.

[16] Id. at 678–681; id. at 676 n.17; id. at 666.

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