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Texas Attorney General Ken Paxton is suing the city of San Marcos and San Marcos officials over ordinances and enforcement related to how the city handles certain marijuana offenses. Paxton is also suing the cities of Austin, Elgin, Killeen and Denton.
In the lawsuit, Paxton has alleged that the ordinance violates state law.
“This ordinance and any corresponding San Marcos Police Department general order or directive, constitute a policy under which San Marcos will not fully enforce laws relating to drugs, including Chapter 481,” the lawsuit filed in District Court said. “Chapter 481 makes possession of marijuana and drug paraphernalia an offense.”
The lawsuit goes on to say that the ordinance violates the Texas Local Government Code and is unconstitutional. The city of San Marcos did not have a comment on the lawsuit when asked on Wednesday.
Paxton is requesting an injunction and for the court to declare the ordinance and any SMPD general order as void and asking for the ordinance’s repeal.
The lawsuit names the city of San Marcos as well as the mayor, all councilmembers, city manager Stephanie Reyes and Police Chief Stan Standridge.
“Local resources should go to keeping people safe, not chasing people down for low level pot offenses,' Congressman Greg Casar (D-Texas), who represents Texas’s 35th Congressional District in the U.S. House of Representatives, said. “Our local policies are perfectly legal: we stopped wasting taxpayer dollars to test alleged marijuana for its THC content. Our communities have made it clear: they support smart policies that promote justice — something Ken Paxton would know little about. What was Ken Paxton smoking when he filed this lawsuit?”
The ordinance was part of Proposition A in the 2022 city election. Nearly 82% of San Marcos voters cast their ballot in favor of the proposition.
Proposition A made its way onto the ballot after a coalition consisting of 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 gathered more than 10,000 signatures on a petition.
“San Marcos voters have been called extremists for decriminalizing low-level possession of marijuana, something done by more than half the states in our nation. Meanwhile, true radical extremists like Paxton continue to openly defy Supreme Court orders to remove deadly buoys with saw blades in the Rio Grande, polluting the environment while also endangering immigrant families desperately seeking a better life” Sam Benavides, Communications Director with Mano Amiga, said. “Paxton should focus on preparing for his own deposition for corruption rather than undemocratically defying the will of Texas voters.”
After the petition was certified by the San Marcos City Clerk, city council voted during its Aug. 2, 2022 meeting to add the ordinance included in the petition as a proposition on the ballot for the Nov. 8, 2022 election.
The ordinance ended citations and arrests by the San Marcos Police Department for misdemeanor possession of marijuana up to four ounces. San Marcos police, however, can cite an individual or make an arrest for Class A or Class B misdemeanor possession of marijuana if it’s a part of an investigation involving a felony- level narcotics case or the investigation of a violent felony.
Additionally, the ordinance ended citations for possession of drug residue or drug paraphernalia, the use of city funds or personnel to conduct THC concentration testing were be prohibited, and there is a prohibition against city police using the odor of marijuana or hemp as a probable cause for search or seizure.
The ordinance is only applicable to the San Marcos Police Department. The ordinance does not bind Texas State University police, Hays County Sheriff’s Office or Texas Department of Public Safety to decriminalize up to four ounces of marijuana in San Marcos.
Marijuana possession and possession of drug paraphernalia were among the most common citable offenses before the ordinance was passed in 2022, Standridge previously told the Daily Record.
Questions of constitutionality were raised throughout the ordinance process. Standridge had previously stated in the SMPD 2022 Annual Review that “No policy was adopted as required by the ordinance due to State law conflict.” The lawsuit states that Standridge then issued a memorandum to the police department detailing the department’s compliance with the ordinance. Former Hays County District Attorney Wes Mau asked the Texas Attorney General’s Office for an opinion on the ordinances in December of 2022.
“Based on the ordinance’s enactment, the following questions are raised: First, is the ordinance preempted by the laws of the State of Texas criminalizing the possession and delivery of marijuana?” Mau wrote in a letter sent to the Office of the Attorney General, the Daily Record reported in December of 2022. “Second, if the ordinance is void due to preemption, does it expose the city to potential legal action, particularly with respect to potential discipline of San Marcos police officers unwilling to comply with an unlawful ordinance?”
Current Hays County District Attorney Kelly Higgins said that every case is evaluated individually.
“If you’re interested in cannabis prosecution you might want to look at the statutes, which make only Delta9 cannabis prohibited and ask DPS labs their policy on testing cannabis samples,” Higgins said. “They don’t want to. The state has created an unfounded mandate and cursed it with a ridiculous testing policy and an absurd statue. And then of course pointed fingers at local agencies for responding to their foolishness. Talk to DPS labs. Our office has no policy regarding cannabis. We evaluate every case individually.”
Paxton has requested a declaratory judgment as well as both a temporary and permanent injunction to remove the ordinance and police department policy.
