Marijuana decriminalization measures in San Marcos, Austin get early court wins

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Last week, a Hays County District Judge dismissed Texas Attorney General Ken Paxton’s lawsuit seeking to force San Marcos to enforce marijuana possession arrests.

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, earlier this 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.

“I will not stand idly by as cities run by pro-crime extremists deliberately violate Texas law and promote the use of illicit drugs that harm our communities,” Paxton said in a statement in January. “It’s quite simple: the legislature passes every law after a full debate on the issues, and we don’t allow cities the ability to create anarchy by picking and choosing the laws they enforce.”

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.

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

Ground Game Texas — the progressive group that first launched the proposition in Austin and worked with local organizations in the other four cities — expects Paxton to appeal the decisions to dismiss the lawsuits at some point.

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

Elgin city manager Tom Mattis said the decision to accept the consent decree will not change anything because at no time did the Elgin Police Department implement or enforce the ordinance due to conflicting state law.

“I know Austin, San Marcos, and other cities are going through the court process, but we didn’t have the funds to waste on something that doesn’t really change anything,” Mattis said. “The litigation was a ridiculous waste of public resources and time.”

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: Eric Martinez, executive director of Mano Amiga, a criminal justice policy reform advocacy group, said the dismissal is a win for San Marcos and all communities who are standing up to unwarranted state interference.

“It reaffirms our commitment to ensuring that our city officials can follow the will of the voters and perform their duties without the shadow of unfounded legal challenges,” she said.

Officials with Ground Game Texas, a social justice advocacy group that spearheaded the initiative to decriminalize marijuana in San Marcos, recently said their organization had gathered enough signatures to place the measure on the November ballot in Dallas.

“This decision, along with the recent verification of our petition in Dallas, is a welcome reminder that this is a winning movement, and one we look forward to continuing to build across the state this November with the collaboration of partners like Mano Amiga,” said Catina Voellinger, executive director of Ground Game Texas.

If the initiative wins in Dallas this fall, it would be the largest Texas city to decriminalize lesser marijuana offenses.

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