CITY OF SAN MARCOS
Decision does not impact similar lawsuit against city of San Marcos
In January, Texas Attorney General Ken Paxton filed a lawsuit against five cities, including San Marcos, in the state of Texas over ordinances and enforcement related to how the cities handle certain marijuana-related offenses. The other cities sued were Austin, Elgin, Killeen and Denton.
On Wednesday, a Travis County District Court Judge dismissed the lawsuit filed against Austin; however the city of San Marcos confirmed the decision does not impact the lawsuit it faces from the state attorney general.
According to the Austin American Statesman, State District Judge Jan Soifer “essentially said there was no reason for the case to proceed to trial.
'Having considered the pleadings, responses, as well as the arguments of legal counsel and applicable law, the Court is of the opinion that the De- fendants' plea to dismiss the case' should be granted, Soifer wrote.
The lawsuit was dismissed “with prejudice,” which means that the case was ruled on legal merits and can’t be filed again. However, it is expected that the state will appeal the decision.
The city of San Marcos will still have its day on court. The lawsuits were filed in the district of each of the cities sued, which means the lawsuit against San Marcos was filed in Hays County. There is currently a Temporary Injunction Hearing on June 27 scheduled in the 207th District Court in front of Judge Sherri Tibbe.
The city of San Marcos said they did not have a comment at this time.
In the lawsuit against San Marcos, Paxton has alleged that the city’s 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.
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.
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.
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 when previously asked in January.
