TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
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`NO. 03-20-00463-CV
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`Texas Department of State Health Services and John Hellerstedt, in his Official Capacity as
`Commissioner of the Texas Department of State Health Services, Appellants
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`v.
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`Crown Distributing LLC; America Juice Co. LLC; Custom Botanical Dispensary, LLC;
`and 1937 Apothecary, LLC, Appellees
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`FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
`NO. D-1-GN-20-004053, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
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`M E M O R A N D U M O P I N I O N
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`Appellees Crown Distributing LLC; America Juice Co. LLC; Custom Botanical
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`Dispensary, LLC; and 1937 Apothecary, LLC (collectively, the Hemp Companies) sued
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`appellants Texas Department of State Health Services and John Hellerstedt, in his official
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`capacity as Commissioner (collectively, the Department), challenging certain statutes and a
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`Department rule relating to consumable hemp products for smoking. The Hemp Companies
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`applied for a temporary injunction; the trial court granted the injunction in part, enjoining the
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`Department from enforcing rule 300.104, see 25 Tex. Admin. Code § 300.104 (2021) (Dep’t of
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`State Health Servs., Manufacture, Processing, Distribution, and Retail Sale of Hemp Products for
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`Smoking); and the Department now appeals from the temporary injunction order. For the
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`following reasons, we affirm in part and reverse and remand in part.
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`BACKGROUND
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`In 2019, the Legislature enacted chapter 443 of the Texas Health and Safety Code
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`and other related statutory provisions regulating certain hemp products. See generally Tex.
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`Health & Safety Code §§ 443.001–.207 (“Manufacture, Distribution, and Sale of Consumable
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`Hemp Products”); see also Tex. Agric. Code § 122.301(b) (“A state agency may not authorize a
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`person to manufacture a product containing hemp for smoking, as defined by Section 443.001,
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`Health and Safety Code.”). Chapter 443 requires that “[t]he executive commissioner shall adopt
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`rules and procedures necessary to administer and enforce this chapter” and that “[r]ules adopted
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`by the executive commissioner regulating the sale of consumable hemp products must to the
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`extent allowable by federal law reflect the following principles,” including that “the processing
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`or manufacturing of a consumable hemp product for smoking is prohibited.” Tex. Health
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`& Safety Code §§ 443.051, .204(4). In 2020, the Department adopted rule 300.104: “The
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`manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is
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`prohibited.” 25 Tex. Admin. Code § 300.104.
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`The Hemp Companies then filed suit against the Department raising two claims
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`for declaratory relief and requesting injunctive relief, described in their petition as follows:
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`1. This lawsuit seeks a declaration that the Legislative Ban contained in Texas Agriculture
`Code § 122.301(b) and Texas Health & Safety Code § 443.204(4), which bans the
`processing and manufacture of hemp products for smoking in Texas, is unconstitutional.
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`2. This lawsuit further seeks a declaration that the administrative rule enacted by the Texas
`Department of State Health Services, which bans the distribution and retail sale of hemp
`products for smoking, is invalid pursuant to Texas Government Code § 2001.038.
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`3. This lawsuit seeks to enjoin Defendants from enforcing two statewide bans on the
`manufacturing, processing, distribution, and retail sale of smokable hemp products.
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`2
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`The Hemp Companies claimed that the “Legislative Ban” violates their constitutional right to
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`due course of law, see Tex. Const. art. I, § 19, and that the enactment of rule 300.104’s ban on
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`distribution and retail sale exceeds the scope of the Department’s authority because “[t]he
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`Legislature expressed no intent to ban the retail sale or distribution of smokable hemp product”
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`and “[t]he express mention of ‘manufacture’ and ‘processing’ [in section 443.204(4)] evidences
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`an affirmative intent to permit other activities,” see Tex. Gov’t Code § 2001.038 (providing for
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`rule validity challenge). As to the injunctive relief, the Hemp Companies’ petition requested that
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`the trial court “enjoin[] [the Department] from enforcing the Legislative Ban (Tex. Health
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`& Safety Code § 443.204(4), and Tex. Agric. Code § 122.301(b)) and the Rule (25 Tex. Admin.
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`Code § 300.104), assessing any fines from violation of the Rule, or otherwise penalizing any
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`entity in any way from violating the Rule.”
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`After an evidentiary hearing on the application for a temporary injunction, the
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`trial court notified the parties of its decision to grant the temporary injunction in part and
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`requested a proposed order. The parties could not agree on the wording of the order, and both
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`parties sent email correspondence with different proposed orders to the judge, which were filed
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`with the trial court. The Department asserted that the Hemp Companies “are not challenging the
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`Rule with respect to ‘manufacture’ and ‘processing’”; that they “challenged the Rule only with
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`respect to ‘distribution’ and ‘retail sale’”; and that their “proposed order therefore does not match
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`the relief requested or the relief available.” The Hemp Companies responded that “[t]he basis for
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`enjoining enforcement of the Rule until final disposition on the merits is based on [the Hemp
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`Companies’] Substantive Due Course of Law claim” and that “[i]f the Legislative Ban is
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`unconstitutional, a declaration that 25 Texas Administrative Code § 300.104 is invalid
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`immediately follows.” The next day, the trial court signed a temporary injunction order that
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`3
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`“GRANTS-IN-PART and DENIES-IN-PART [the Hemp Companies’] Application” and that
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`enjoined the Department “from enforcing 25 Tex. Admin. Code § 300.104 (‘the Rule’), assessing
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`any fines from violation of the Rule, or otherwise penalizing any entity in any way from
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`violating the Rule.” The order notes that the Department stipulated that the Hemp Companies
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`would suffer irreparable harm and challenged only the Hemp Companies’ probable right to
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`relief, which the trial court found the Hemp Companies to have demonstrated. The Department
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`now appeals from the temporary injunction order.1
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`DISCUSSION
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`The Department raises two issues on appeal. First, the Department challenges the
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`temporary injunction’s scope, arguing that the trial court abused its discretion in enjoining the
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`enforcement of rule 300.104 in its entirety because the Hemp Companies’ petition never stated a
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`ground for enjoining the enforcement of rule 300.104’s bans on manufacturing and processing.
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`Second, the Department argues that the trial court abused its discretion in enjoining the
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`enforcement of rule 300.104’s bans on distribution and retail sale because those bans are “a valid
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`exercise” of the Department’s “broad rulemaking authority over the sale of consumable hemp
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`products and consistent with the statutory limitations on that authority.”
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`To be entitled to a temporary injunction, the applicant “must plead and prove
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`three specific elements: (1) a cause of action against the defendant; (2) a probable right to the
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`relief sought; and (3) a probable imminent, and irreparable injury in the interim.” Abbott v.
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`Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020)
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`1 The Hemp Companies have not appealed the trial court’s denial of their request that the
`trial court “enjoin[] [the Department] from enforcing the Legislative Ban (Tex. Health & Safety
`Code § 443.204(4), and Tex. Agric. Code § 122.301(b)).”
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`4
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`(quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)). We review a trial
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`court’s decision to grant a temporary injunction for abuse of discretion. Id. A trial court does
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`not abuse its discretion as to evidentiary matters if some evidence reasonably supports the ruling,
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`but the trial court has no discretion to incorrectly analyze or apply the law. Id.
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`Scope of the Temporary Injunction
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`In its first issue, the Department argues that the Hemp Companies never provided
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`a “plain and intelligible statement of the grounds for such relief” to enjoin the enforcement of
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`rule 300.104’s ban on manufacturing and processing consumable hemp products for smoking.
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`See Tex. R. Civ. P. 682 (“No writ of injunction shall be granted unless the applicant therefor
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`shall present his petition to the judge verified by his affidavit and containing a plain and
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`intelligible statement of the grounds for such relief.”). According to the Department, the Hemp
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`Companies challenged rule 300.104’s validity by focusing only on the distribution and retail sale
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`bans as exceeding statutory authorization, but never connected their constitutional challenge to
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`the “Legislative Ban” as a ground for rule 300.104’s invalidity in its entirety.
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`The Hemp Companies noted in their email to the trial court after the hearing on
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`the temporary injunction that “[i]f the Legislative Ban is unconstitutional, a declaration that [rule
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`300.104] is invalid immediately follows.” The “Legislative Ban” states, “Rules adopted by the
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`executive commissioner regulating the sale of consumable hemp products must to the extent
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`allowable by federal law reflect the following principles: . . . (4) the processing or manufacturing
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`of a consumable hemp product for smoking is prohibited.” Tex. Health & Safety Code
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`§ 443.204(4). And rule 300.104 states, “The manufacture, processing, distribution, or retail sale
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`of consumable hemp products for smoking is prohibited.” 25 Tex. Admin. Code § 300.104.
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`5
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`But even if the Hemp Companies are correct that a declaration that rule 300.104 is
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`invalid inevitably follows from a declaration that section 443.204(4) is unconstitutional, the
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`Hemp Companies would still have to plead and request a declaration of rule invalidity based
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`upon that ground. Here, however, the Hemp Companies’ petition never challenged the validity
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`of rule 300.104 in its entirety based on their constitutional challenge to the “Legislative Ban.”
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`And the Hemp Companies’ validity challenge to rule 300.104 was limited to the ground that the
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`Department allegedly exceeded its statutory authority by going beyond “[t]he express mention of
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`‘manufacture’ and ‘processing’” to ban distribution and retail sale. The petition clearly
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`delineates the constitutional challenge to the “Legislative Ban” and the challenge to rule
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`300.104’s validity, stating, for example: “It is probable Plaintiffs will prevail after a trial on the
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`merits because, for the reasons stated above, the statute banning the processing and
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`manufacturing of smokable hemp products is unconstitutional under Patel and the Rule adding
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`the ban of distribution and retail sale of smokable hemp products is invalid.”2 The Hemp
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`2 In their email correspondence to the trial court following the hearing, the Hemp
`Companies stated: “Plaintiffs brought two distinct challenges. First, Plaintiffs challenge the
`Rule on grounds that the legislation authorizing the Rule is unconstitutional. Second, Plaintiffs
`challenge the Rule on grounds that it exceeds authority because of the addition of ‘distribution’
`and ‘retail.’” However, the Hemp Companies’ petition challenges only the “Legislative Ban,”
`not the rule, on constitutional grounds and does not “challenge the Rule on grounds that the
`legislation authorizing the Rule is unconstitutional.” (Emphasis added.) “Our rules require
`pleadings to provide not just fair notice of factual allegations, but a ‘short statement of the
`cause of action sufficient to give fair notice of the claim involved.” Montelongo v. Abrea,
`622 S.W.3d 290, 300 (Tex. 2021) (quoting Tex. R. Civ. P. 47(a)); see id. at 301 (“And to assert a
`cause of action, the pleading must be sufficient to enable a court to determine, with reasonable
`certainty, not just the facts, but ‘the elements of [the] cause of action and the relief sought with
`sufficient information upon which to base a judgment.’” (quoting Stoner v. Thompson,
`578 S.W.2d 679, 683 (Tex. 1979)). Even when construing the petition liberally, see Boyles
`v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (noting that in absence of special exception, petition
`should be construed liberally in favor of pleader and that court should “uphold the petition as to a
`cause of action that may be reasonably inferred from what is specifically stated, even if an
`element of the cause of action is not specifically alleged”), the Hemp Companies did not provide
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`6
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`Companies argue that they requested both a declaration of the invalidity of the entire rule and the
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`enjoinment of enforcement of rule 300.104 in its entirety, not just a portion of it.3 But these
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`requests concern the scope of the requested relief, not “the grounds for such relief.”
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`“A temporary injunction is an extraordinary remedy and does not issue as a matter
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`of right.” Abbott, 610 S.W.3d at 916 (quoting Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.
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`1993) (per curiam)). Because the Hemp Companies never provided “a plain and intelligible
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`statement of the grounds” to enjoin the enforcement of rule 300.104’s bans on manufacturing
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`and processing consumable hemp products for smoking, we conclude that the trial court abused
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`its discretion in granting the temporary injunction and enjoining the enforcement of that portion
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`of the rule. See Tex. R. Civ. P. 682; In re MetroPCS Commc’ns, Inc., 391 S.W.3d 329, 337
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`(Tex. App.—Dallas 2013, orig. proceeding) (concluding petition did not contain “a plain and
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`intelligible statement of the grounds” when it did not address or mention certain provisions
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`applicant sough to restrain); Donaho v. Bennett, No. 01-08-00492-CV, 2008 WL 4965143, at *6
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`(Tex. App.—Houston [1st Dist.] Nov. 20, 2008, no pet.) (mem. op.) (concluding trial court
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`abused discretion in granting injunctive relief when pleadings and evidence did not address
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`software specifically enumerated in injunction). We sustain the Department’s first issue.
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`fair notice of a cause of action challenging “the Rule on grounds that the legislation authorizing
`the Rule is unconstitutional.”
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` 3
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` The Hemp Companies’ petition seeks “a declaration that the administrative rule
`enacted by the Texas Department of State Health Services, which bans the distribution and retail
`sale of hemp products for smoking, is invalid”; states that “[t]he Rule is invalid on its face”; and
`requests in the prayer “a declaration that 25 Texas Administrative Code § 300.104 is invalid.”
`And at the hearing on the application for temporary injunction, the Hemp Companies stated:
`“And the relief we’re requesting is to have this provision of the law – the very specific legislative
`ban declared unconstitutional and unenforceable. As far as the rule – the entire rule, but have the
`rule also declared unenforceable, not the entire act.”
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`7
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`Probable Right to Relief
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`As a state administrative agency, the Department has only those powers that the
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`Legislature has expressly conferred upon it and those implied powers that are reasonably
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`necessary to carry out its statutory duties. See Texas Bd. of Chiropractic Exam’rs v. Texas Med.
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`Ass’n, 616 S.W.3d 558, 569 (Tex. 2021). Moreover, its rules must be authorized by and
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`consistent with its statutory authority, although the rules are generally presumed to be valid. Id.
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`To overcome this presumption, a challenging party must show that the rule’s provisions are not
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`in harmony with the relevant act’s general objectives, as discerned from the statute’s plain text.
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`Id. To meet this burden, the challenging party can show that the challenged rule:
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`“(1) contravenes specific statutory language; (2) runs counter to the general objectives of the
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`statute; or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent
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`with the relevant statutory provisions.” Id. (quoting Texas State Bd. of Exam’rs of Marriage
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`& Fam. Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017)).
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`The Department argues that the Hemp Companies did not meet their burden to
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`demonstrate a probable right to relief that rule 300.104’s bans on distribution and retail sale are
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`invalid because those bans “do not impose any additional burdens, conditions, or restrictions”
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`and “are a valid exercise of [the Department’s] broad rulemaking authority over the sale of
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`consumable hemp products and consistent with the statutory limitations on that authority.” The
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`Hemp Companies respond that rule 300.104 “imposes additional restrictions—prohibitions on
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`retail sale and distribution—in excess of and inconsistent with § 443.204(4).”
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`The question of whether a rule imposes additional burdens, conditions, or
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`restrictions in excess of or inconsistent with relevant statutory provisions “is a question of
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`law determined through statutory construction.” Harlingen Fam. Dentistry, P.C. v. Texas Health
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`8
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`& Hum. Servs. Comm’n, 452 S.W.3d 479, 486 (Tex. App.—Austin 2014, pet. dism’d). “[W]e
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`construe statutes by first looking to the statutory language for the Legislature’s intent, and only if
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`we cannot discern legislative intent in the language of the statute itself do we resort to canons of
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`construction or other aids such as which statute is more specific.” Texas Lottery Comm’n v. First
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`State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010). “The primary goal when interpreting
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`a statute is to effectuate ‘the Legislature’s intent as expressed by the plain and common meaning
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`of the statute’s words.’” Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016) (quoting F.F.P.
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`Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007)).
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`The Department asserts that rule 300.104’s bans on distribution and retail sale are
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`not additional restrictions in excess of the relevant statutory provisions because chapter 443
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`“implicitly prohibits the distribution and retail sale of consumable hemp products for smoking”
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`and because section 443.204(4), “when read in context with other statutes, requires [the
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`Department] to prohibit the distribution and retail sale (as well as the manufacture and
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`processing) of consumable hemp products for smoking.” Thus, according to the Department,
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`rule 300.104’s prohibitions on distribution and retail sale “do not impose any additional burdens,
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`conditions, or restrictions” than those already imposed by the relevant statutory provisions. We
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`quote the Department’s argument in full:
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`Section 443.204(4) states that “the processing or manufacturing of a consumable
`hemp product for smoking is prohibited.” Tex. Health & Safety Code
`§ 443.204(4). And Chapter 443 defines “manufacture” to mean “the process of
`combining or purifying food or packaging food for sale to a person at wholesale
`or retail.” Id. § 431.002(23)(A) (emphasis added); see also id. § 443.001(8)
`(giving “manufacture” “the meaning assigned by Section 431.002”). Further,
`Chapter 443 allows a person to “possess, transport, sell, or purchase a consumable
`hemp product” only to the extent it is “processed or manufactured in compliance
`with this chapter.” Id. § 443.201(a) (emphasis added). Because Chapter 443
`expressly prohibits the manufacture of consumable hemp products for smoking
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`for retail sale, and since only consumable hemp products processed or
`manufactured in compliance with Chapter 443 may be transported or sold, it
`implicitly prohibits the distribution and retail sale of consumable hemp for
`smoking.
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`The Department appears to rely on sections 431.002(23)(A) and 443.201(a) to conclude that the
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`statutory scheme imposes an implied ban on the retail sale and distribution of consumable hemp
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`products for smoking. However, the Department’s argument, as we understand it, goes beyond
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`the plain meaning of the Legislature’s enacted text. See KMS Retail Rowlett, LP v. City of
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`Rowlett, 593 S.W.3d 175, 183 (Tex. 2019) (“When interpreting statutes, we look to the plain
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`meaning of the enacted text. ‘We must enforce the statute as written and refrain from rewriting
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`text that lawmakers chose.’” (quoting Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562
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`(Tex. 2014) (plurality op.))).
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`First, section 431.002’s definition of “Manufacture” to include “packaging food
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`for sale to a person at wholesale or retail” does not mean that a prohibition on manufacturing
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`such food would also include a prohibition on selling such food. See Tex. Health & Safety Code
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`§§ 431.002(23)(A) (“‘Manufacture’ means: (A) the process of combining or purifying food or
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`packaging food for sale to a person at wholesale or retail, and includes repackaging, labeling, or
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`relabeling of any food[.]”), 443.001(8) (“‘Manufacture’ has the meaning assigned by Section
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`431.002.”).4 The phrase “for sale to a person at wholesale or retail” modifies “food” that is being
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`4 We assume without deciding that the Department correctly classifies consumable hemp
`products for smoking as “food.” See Tex. Health & Safety Code §§ 443.001(1) (“‘Consumable
`hemp product’ means food, a drug, a device, or a cosmetic, as those terms are defined by Section
`431.002, that contains hemp or one or more hemp-derived cannabinoids[.]”), .204(2) (“Rules
`adopted by the executive commissioner regulating the sale of consumable hemp products must to
`the extent allowable by federal law reflect the following principles: . . . (2) products containing
`one or more hemp-derived cannabinoids, such as cannabidiol, intended for ingestion are
`considered foods, not controlled substances or adulterated products[.]”). The definitions of
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`10
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`packaged to distinguish it from food that is being packaged for some other purpose than “for sale
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`to a person at wholesale or retail”; the statutory definition is not defining “Manufacture” to also
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`include selling food to a person at wholesale or retail. Moreover, the Legislature expressly
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`dictated additional actions that “Manufacture” also includes—“‘Manufacture’ . . . includes
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`repackaging, labeling, or relabeling of any food”—but did not include “selling” in this list. See
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`id. § 431.002(23)(A). Additionally, the Legislature knows how to dictate that provisions
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`regarding one action should be considered to include other actions. For example, in chapter
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`431—the same chapter that includes the definition of “Manufacture” at issue here—the
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`Legislature dictated that provisions regarding the selling of food shall be considered to include
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`the manufacture of food. See id. § 431.005 (“The provisions of this chapter regarding the selling
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`of food, drugs, devices, or cosmetics, shall be considered to include the manufacture, production,
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`processing, packaging, exposure, offer, possession, and holding of any such article for sale; and
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`the sale, dispensing, and giving of any such article, and the supplying or applying of any such
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`articles in the conduct of any food, drug, or cosmetic establishment”); see also id. § 431.011(a)
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`(“This chapter applies to a consumable hemp product subject to Chapter 443.”). But the
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`Legislature did not include a corresponding section providing that provisions regarding the
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`manufacturing of food shall be considered to include the distributing or selling of food in chapter
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`431 or chapter 443. Instead, in chapter 443, the Legislature expressly distinguished
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`manufacturing and selling by creating different permitting schemes for manufacturers and retail
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`sellers of consumable hemp products. Compare id. §§ 443.101–.105 (requiring licenses for
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`manufacturers of consumable hemp products), with id. §§ 443.201–.207 (requiring retail sellers
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`“Manufacture” for drugs, devices, and cosmetics do not include similar language of “for sale to a
`person at wholesale or retail.” See id. § 431.002(23)(B) (defining “Manufacture” of drug),
`(C) (defining “Manufacture” of device), (D) (defining “Manufacture” of cosmetic).
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`11
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`to meet registration requirements). Accordingly, we cannot conclude that the Legislature,
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`through its definition of “Manufacture” in section 431.002, intended that a ban on manufacturing
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`food would impliedly include a ban on selling food to a person.
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`Second, the Department argues that section 443.201(a) contains an implied
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`prohibition against the sale of consumable hemp products not processed or manufactured in
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`compliance with chapter 443.5 Section 443.201(a) provides, “A person may possess, transport,
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`sell, or purchase a consumable hemp product processed or manufactured in compliance with this
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`chapter.” Tex. Health & Safety Code § 443.201(a). In this context, the use of the word “may”
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`grants permission. See Tex. Gov’t Code § 311.016(1) (“‘May’ creates discretionary authority or
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`grants permission or a power.”). But the grant of a permission does not necessarily imply a
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`prohibition of the actions under other circumstances not expressly permitted by the grant. See
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`Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 371 (Tex. 2001) (“Legislative permission to
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`contract under certain circumstances does not necessarily imply that contracting under other
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`circumstances is prohibited.”). And the Legislature expressly prohibited the sale of certain
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`consumable hemp products in other provisions, rather than relying on an implied prohibition
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`from a general statement of permission. See, e.g., Tex. Health & Safety Code §§ 443.152(a) (“A
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`consumable hemp product that has a delta-9 tetrahydrocannabinol concentration of more than 0.3
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`percent may not be sold at retail or otherwise introduced into commerce in this state.”), .202(b)
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`(“Notwithstanding any other law, a person may not sell, offer for sale, possess, distribute, or
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`transport a cannabinoid oil” if oil contains certain materials.); see also Tex. Gov’t Code
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`§ 311.016(5) (“‘May not’ imposes a prohibition and is synonymous with ‘shall not.’”). Absent
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`5 In their briefing to the trial court, the Department argued: “A necessary implication [of
`section 443.201] is that a person may not sell or purchase a consumable hemp product that is not
`processed or manufactured in compliance with Chapter 443.”
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`further indication of Legislative intent to prohibit the distribution and retail sale of consumable
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`hemp products for smoking, we cannot conclude that section 443.201(a)’s express grant of
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`permission to sell consumable hemp products processed and manufactured in compliance with
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`chapter 443 implies a general prohibition on distributing or selling any other consumable hemp
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`products, including consumable hemp products for smoking.6
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`The title of chapter 443 is “Manufacture, Distribution, and Sale of Consumable
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`Hemp Products,” and throughout the chapter the Legislature expressly addressed manufacturing,
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`processing, distributing, and selling consumable hemp products. See generally Tex. Health
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`& Safety Code §§ 443.001–.207. But when the Legislature specifically addressed consumable
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`hemp products for smoking, it chose to limit the principle that it specified must be reflected in
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`the Department’s rules to “the processing or manufacturing of a consumable hemp product for
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`smoking is prohibited” without specifying that distribution or retail sale is prohibited. Id.
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`§ 443.204(4); see In re Commitment of Bluitt, 605 S.W.3d 199, 203 (Tex. 2020) (“When
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`interpreting statutes, we presume the Legislature chose the statute’s language with care,
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`purposefully choosing each word, while purposefully omitting words not chosen.”);
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`cf. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 877 (Tex. 2018) (noting that when it is
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`6 Moreover, to construe section 443.201(a)’s grant of permission as imposing a general
`prohibition on the sale of all consumable hemp products not “processed or manufactured in
`compliance with this chapter” would create a tension between sections 443.201(a) and 443.206.
`Section 443.206 permits the retail sale of certain consumable hemp products processed or
`manufactured outside of Texas even if the products were not processed or manufactured in
`compliance with chapter 443. See Tex. Health & Safety Code § 443.206 (“Retail sales of
`consumable hemp products processed or manufactured outside of this state may be made in this
`state when the products were processed or manufactured in another state or jurisdiction in
`compliance with: (1) that state or jurisdiction’s plan approved by the United States Department
`of Agriculture under 7 U.S.C. Section 1639p; (2) a plan established under 7 U.S.C. Section
`1639q if that plan applies to the state or jurisdiction; or (3) the laws of that state or jurisdiction if
`the products are tested in accordance with, or in a manner similar to, Section 443.151.”).
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`fair to suppose Legislature considered unnamed possibility and meant to say no to it, “the
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`interpretative canon of expression unius est exclusion alterius—the notion that the express
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`mention of one thing excludes another” may apply depending on context); Steering Comms. for
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`Cities Served by TXU Elec. v. Public Util. Comm’n, 42 S.W.3d 296, 302 (Tex. App.—Austin
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`2001, no pet.) (“[W]e presume that the purposeful inclusion of certain terms in a statute implies
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`the purposeful exclusion of terms that are absent under the principle of statutory interpretation
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`inclusio unius est exclusio alterius.”). We therefore disagree with the Department that the
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`Legislature’s chosen statutory language in sections 431.002(23)(A), 443.201(a), and 443.204(4)
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`“implicitly prohibits the distribution and retail sale of consumable hemp products for smoking.”
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`The Department also argues—citing Pruett v. Harris County Bail Bond Board,
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`249 S.W.3d 447, 450–53 (Tex. 2008); Public Utility Commission v. GTE-Southwest, Inc.,
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`901 S.W.2d 401, 403–08 (Tex. 1995); and Texas Association of Psychological Associates v.
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`Texas State Board of Examiners of Psychologists, 439 S.W.3d 597, 600–04 (Tex. App.—Austin
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`2014, no pet.)—that it has “broad authority to regulate consumable hemp products under Section
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`443.051” and that “[w]hen broad authority is given, the agency is not limited to imposing
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`requirements explicitly authorized by the statute.” Nevertheless, the statutory authorization here
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`is not as broad as in Pruett, GTE-Southwest, and Texas Association of Psychological Associates.
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`Here, the statutory authorization expressly limits the Department to adopting rules to “administer
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`and enforce this chapter.” Tex. Health & Safety Code § 443.051 (emphasis added). In contrast,
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`the Pruett Court noted that “section 1704.101(3) grants the Board broad authority to ‘supervise
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`and regulate each phase of the bonding business’”; that “[w]hen a statute expressly authorizes an
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`agency to regulate an industry, it implies the authority to promulgate rules and regulations
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`necessary to accomplish that purpose”; and that the statutory authority conferred by subsection
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`(3) is not “limited to existing statutory provisions within ‘this chapter.’” 249 S.W.3d at 453
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`(quoting Tex. Occ. Code § 1704.101(3)). The GTE-Southwest Court noted that “the PUC ‘has
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`the general power to regulate and supervise the business of every public utility within its
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`jurisdiction and to do all things, whether specifically designated in this Act or implied herein,
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`necessary and convenient to the exercise of this power and jurisdiction.’” 901 S.W.2d at 406
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`(citing Tex. Rev. Civ. Stat. art. 1446c, § 16(a)). And the Texas Association of Psychological
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`Associates Court explained that “[t]he Legislature vested the Board with the authority to ‘adopt
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`rules necessary to perform its duties and regulate its proceedings’” and to “‘set standards for the
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`issuance of licenses to psychological personnel who hold a master’s degree.’” 439 S.W.3d at
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`604 (quoting Tex. Occ. Code §§ 501.151, .259). That Court then specifically noted, “As the
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`Legislature expressed no statutory restrictions on the delegation of this authority, the Act vests
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`the Board with the authority to exercise broad discretion in its licensing standards.” Id. Because
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`here the statutory rulemaking authorization to the Department was expressly limited to
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`administering and enforcing chapter 443, we conclude that these cases are inapposite.
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`In sum, the Legislature required that the Department’s rules must reflect the
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`principle that “the processing or manufacturing