Austin, TX: A Texas appellate court issued a pair of rulings last week halting the implementation of voter-approved marijuana initiatives in the cities of Austin (population: 980,000) and San Marcos (population: 72,000).
Voters in both cities had overwhelmingly approved municipal ordinances in 2022 prohibiting local police officers from issuing citations or making arrests for minor marijuana possession offenses. Last year, Republican Attorney General Ken Paxton filed suit against Austin, San Marcos, and several other cities for adopting the measures. The Attorney General filed an additional suit against the city of Dallas in December, opining, “Cities cannot pick and choose which state laws they follow.”
Reversing a lower court judge’s ruling, judges on the Fifteenth Court of Appeals sided with the Attorney General and held that state law preempts San Marcos from enforcing its ordinance. Specifically, judges ruled: “Section 370.003 of the Local Government Code … prohibits local governments from putting up any barrier to the full enforcement of drug-related laws. Texas law gives local governments and law enforcement officers a panoply of tools — such as the authority to issue citations and arrests — to enforce drug laws. Section 370.003 prohibits the City of San Marcos from making a policy that takes any of those tools off the table.”
Judges issued a similar ruling days later, striking down Austin’s marijuana ordinance, finding, “Consistent with City of San Marcos, we conclude that the ordinance in this case is also preempted by state law.” That ruling also reversed a lower court judge’s decision.
Police in both cities are anticipated to revert to issuing marijuana-related citations and arrests while the cases continue to be litigated.
Similar ordinances are in effect in the cities of Elgin, Dallas, Denton, and Killeen. Earlier this year, city council members in Bastrop (population: 11,700) and Lockhart (population: 15,300) declined to implement voter-approved depenalization ordinances out of fear of litigation.
State law defines marijuana possession of two ounces or less as a criminal misdemeanor, punishable by up to 180 days in jail, a $2,000 fine, and a criminal record. According to data compiled by Texas NORML, police made an estimated 219,000 marijuana-related arrests between 2017 and 2021. Ninety-seven percent of those arrested were charged with possession only. Fifty-six percent of those arrested were under 25 years of age.
In addition to the Attorney General’s legal efforts, Texas lawmakers are also moving forward with legislation to prohibit localities from placing any future marijuana-related measures on the ballot. Specifically, Senate lawmakers recently approved SB 1870, which forbids voters from deciding upon any local ordinances that seek to decriminalize marijuana. The measure also prohibits cities and towns from adopting policies that do not “fully enforce” the state’s criminal marijuana laws.
Additional information on SB 1870 is available from NORML’s Take Action Center.