State appeals court strikes down San Marcos’ marijuana decriminalization ordinance

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A Texas appeals court has ruled that the city of San Marcos cannot enforce its voter-approved ordinance to decriminalize marijuana because it conflicts with current state law.

Last week, the state Fifteenth Court of Appeals overturned a lower court ruling that denied a temporary injunction to prevent the city from enforcing the law, making the marijuana reform invalid. The court determined the city law “abused its discretion” by putting up any barrier to the full enforcement of drug-related laws.

"It is undisputed that possession of marijuana is illegal in Texas ... Therefore, we cannot justify allowing state law to continue to be violated," according to the ruling penned by Judge April Farris.

The background: In 2022, nearly 82% of San Marcos voters chose to decriminalize marijuana under Proposition A. The effort was led by a group of advocacy organizations, including Mano Amiga, Ground Game Texas, San Marcos Democratic Socialists of America, the Hays County Libertarian Party, the Hays County Democratic Party, and the Texas Cannabis Collective, which gathered 10,000 signatures for the petition.

The Proposition A ordinance ended citations and arrests by the San Marcos Police Department for misdemeanor possession of marijuana up to four ounces. However, police can still cite or arrest a person for Class A or Class B misdemeanor possession of marijuana if it’s part of an investigation involving felony-level narcotics or violence.

Also, the ordinance ended citations for possession of drug residue or drug paraphernalia, prohibited the use of city funds or personnel to test the level of THC — the psychoactive ingredient in marijuana — and prohibited city police from using the odor of marijuana or hemp as probable cause to search a vehicle or home.

This ordinance applies to only the San Marcos Police Department and doesn’t affect Texas State University, the Hays County Sheriff’s Office, or other law enforcement agencies in the area.

Why Texas sued: Paxton sued San Marcos, along with Austin, Killeen, Elgin, and Denton, last year for adopting ordinances or policies instructing law enforcement not to enforce laws concerning marijuana possession and distribution.

Paxton, in the lawsuit, argued these local ordinances or policies violated state law that requires the enforcement of drug-related matters, like possession of marijuana or paraphernalia.

What has happened in the courts so far: Hays County district judge Sherri Tibbe dismissed Paxton’s lawsuit, upholding the argument that the state was not injured when San Marcos reduced arrests for misdemeanor marijuana possession and that it allowed for resources to be used for higher-priority public safety needs.

The Office of the Attorney General appealed this decision. In February, the case was assigned to the Fifteenth Court of Appeals, where the state's attorneys argued that the San Marcos ordinance obstructed the enforcement of state drug laws. The city argued the policy was voter-driven, but the court disagreed, granting the temporary injunction while litigation continues.

This issue has been hotly contested in courts and city councils across the state for the past two years.

Travis County District Judge Jan Soifer dismissed Paxton’s lawsuit against Austin last year, ruling there was no legal justification to try the case.

Paxton’s lawsuit against Elgin was resolved last summer via consent decree, meaning neither side is claiming guilt or liability but has come to an agreement.

In the North Texas suburb of Denton, where voters approved decriminalization by more than 70%, the implementation of marijuana decriminalization has stalled after City Manager Sara Hensley argued it couldn’t be enforced since it conflicted with state law.

The case against Killeen, which was filed in Bell County a year ago, is still pending.

Broader impact:

The future of THC products in Texas is uncertain. Currently, lawmakers are debating Senate Bill 3, which would ban any consumable hemp products that contain even trace amounts of THC, as well as House Bill 28, which would ban synthetic THC and products like gummies and vapes. The House’s proposal focuses more on tightening regulatory loopholes, allowing hemp-infused beverages and assigning the alcohol industry to regulate those products. HB 28 would also limiting the consumption of such products to those 21 years or older and implement advertising regulations.

Lt. Gov. Dan Patrick said he would move to force a special legislative session if lawmakers fail to pass the ban during the current session which ends June 2.

"Kids are getting poisoned today," Patrick told the Senate earlier this year.