Texas Attorney General Ken Paxton on Wednesday filed lawsuits against five cities that have passed marijuana decriminalization measures. The legal action was filed against the cities of Austin, San Marcos, Killeen, Elgin, and Denton “for adopting amnesty and non-prosecution policies that violate Texas laws concerning marijuana possession and distribution,” according to the attorney general’s office.

In 2022, the five cities each adopted ordinances or civic policies that instruct police officers not to enforce state laws prohibiting the possession or distribution of cannabis. After filing the lawsuits this week, Paxton said that such policies are prohibited by the Texas Local Government Code, which bars municipal and county governments from adopting “a policy under which the entity will not fully enforce laws relating to drugs.”

“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 on Wednesday. “This unconstitutional action by municipalities demonstrates why Texas must have a law to ‘follow the law.’ 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.”

The attorney general also noted that under Article 9, Section 5 of the Texas Constitution, it is illegal for municipalities to adopt ordinances that are not consistent with the laws enacted by the Texas Legislature. With the lawsuit, Paxton has asked the district court to overturn the city ordinances and instruct local officials to enforce state law.

Progressive Leaders Push Back

Julie Oliver, executive director for Ground Game Texas, a group that works to advance progressive issues including local marijuana decriminalization ballot measures, said that the attorney general’s legal action seeks to undermine the right of Texans to govern themselves at the local level.

“Ken Paxton’s lawsuits represent an anti-democratic assault on the constitutional authority of Texas Home Rule cities to set local law enforcement priorities,” Oliver told local media. “In each of the cities sued, a supermajority of voters adopted a policy to deprioritize marijuana enforcement in order to reduce racially biased law enforcement outcomes and save scarce public resources for higher priority public safety needs.”

In Denton, a city of about 140,000 people in the Dallas-Fort Worth metropolitan area, voters passed an initiative to decriminalize misdemeanor marijuana offenses in November 2022. The ballot measure received the approval of more than 32,000 votes and the election marked the highest voter turnout recorded in the city’s history.

“This ordinance has now received more votes than any council member or mayor in the history of Denton,” Nick Stevens from Decriminalize Denton, a grassroots organization behind the ordinance, told the Denton Record-Chronicle after the election in 2022. “We’re ecstatic that Republicans, Democrats and independents came together to reclaim their power in the city.”

Denton’s marijuana decriminalization policy, however, has not yet been fully implemented and the city’s police have still been issuing citations for misdemeanor marijuana offenses. In June, the Denton City Council considered an ordinance that advocates said would have strengthened the measure approved by voters but voted 4-3 against the proposal.

New Law Restricts Local Control

The attorney general’s lawsuit is partly based on HB 2127, a bill passed last year that restricts so-called home rule authority. Attorneys for cities including Denton, San Antonio, Waco and Plano that filed suit against the law last year explained that home rule allows local governments “to create policies that address local concerns that vary from jurisdiction to jurisdiction based on many factors such as demographics, population density, environmental concerns and public safety issues.”

But Stevens said that HB 2127 does not cover the city marijuana decriminalization measures because it states that it only applies to municipal or county codes involving agriculture, finance, insurance, labor, natural resources and occupations.

“Ken Paxton should read this law before wasting Texans’ tax dollars with another frivolous lawsuit that distracts from the work we have done to deliver for the people of Denton,” Stevens said.

Ground Game Texas is currently sponsoring a campaign to decriminalize marijuana in Dallas. Known as the Dallas Freedom Act, the measure would end most arrests and citations for Class A and Class B misdemeanor marijuana possession. The proposed ordinance, which is similar to the one passed in Denton, would also require city leaders to report on cannabis enforcement and forbid the use of city funds for laboratory testing to distinguish hemp from marijuana.

“The Dallas Freedom Act is a dynamic initiative that will reduce unnecessary arrests, address racial disparities in marijuana enforcement, and save millions of dollars in city and county resources for much-needed public safety programs,” Tristeza Ordex, campaign manager of Ground Game Texas, said in a statement about the proposal.

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When Congress legalized industrial hemp in 2018, it prompted a tidal wave of CBD-based products while also eliminating a front in the war on drugs. 

But in Texas, some local law enforcement officials continue to fight the old battle, as a report this week in the Dallas Observer highlights.

The story details a recent raid at the store Venom Vapors in Killeen, Texas, where cops, building inspectors and even the local fire marshal showed up one morning earlier this month saying they had received “a tip about narcotics sales and crime at the business and were there to check it out.”

It was a shock to the store’s owner, Kyle Brown, who recounted the unwelcome visit to the Observer.

More from the story:

“Those authorities managed to find some minor violations, like extension cords that were plugged in where they shouldn’t have been, for one example. But the cops were more interested in some of the products the business was selling – namely hemp products like delta-8, delta-10 and THCa…Many of the products Venom Vapors sells come with a certificate of analysis (COA), which lists the constituents and shows that they are compliant with state law. A detective told Brown he scanned the COA for one of the shop’s delta-8 dab products and that it showed there was too much THC for it to be legal.”

Brown disputed that claim, but according to the Observer, but “the cop said the COA showed the product had something like 80% THC. Brown tried to explain that the COA showed it was within the legal limit of delta-9 THC and that the 80% was actually the delta-8 content.” 

“That’s when things kind of went sideways,” Brown told the publication. “They didn’t take the certificate of analysis for what it was. They instead turned it around and used it against us, which was very alarming.”

In a press release, the Killeen Police Department explained its version of events.

“On Thursday, October 19, 2023, detectives with the Special Investigation Division, conducted a special detail at the Venom Vape/Sweep Stakes located at 1518 S. Fort Hood Street due to crime and narcotic complaints. During the operation, officers arrested seven individuals for Possession of Controlled Substance Penalty Group 1 (under 1 gram), Possession of Controlled Substance Penalty Group 1 (over 1 gram under 4) Fail to Identify Fugitive, Fail to ID, Walking in the Roadway, Resisting Arrest, Search or Transport, and Felony Warrant for Debit Card Abuse,” the press release said.

“On Friday, October 20, 2023, detectives conducted an inspection, with the assistance of the Killeen Fire Marshals, Killeen Code Enforcement, and Killeen Building Inspectors. During the inspection, illegal narcotics were displayed inside the business. A narcotics search warrant was executed, and detectives seized 120 grams of THC products, 56 grams of marijuana, 8 electronic gambling devices (computer towers), 6 gambling ledgers, gambling paraphernalia, and $36,117.00 in US currency.”

According to the Dallas Observer, raids like the one that occurred at Venom Vapors “have cropped up around North Texas in recent months.”

The Observer reported that “Brown claimed the police used the COA to secure a search warrant from a judge, but he thinks if the COA had been presented accurately, the police wouldn’t have been able to get the warrant.”

“The police confiscated all the delta-8 dab products, some delta-8 and delta-10 hemp flower, and some THCa prerolls. They also took over $36,000 from the business as evidence, and eight electronic gaming machines that they say were being used for illegal gambling. (Brown said the machines are also compliant with state law.),” according to the Observer.

The dispute calls to mind another recent story in that part of the Lone Star State: despite the passage of an ordinance by local voters to decriminalize marijuana, officials in Denton, Texas have defied those results.

Voters in Denton –– which is home to the University of North Texas –– overwhelmingly approved the ordinance last year, but in June, members of the city council voted against adopting it.

Under the ordinance, “Denton police officers [would] no longer write tickets or make arrests for possession of small amounts of pot and paraphernalia, [and] no longer stop and frisk people when they smell weed,” the Cross Timbers Gazette reported last year.

But in February, Denton’s city manager, Sara Hensley, sounded the alarm on the implementation of the ordinance.

“I recognize the voters have spoken and I understand that, but we don’t have the authority to implement those because of state law and the conflicts,” Hensley said at the time.

“I do not have the authority to direct the police chief to not enforce the law,” Hensley added.

In June, the Denton City Council voted 4-3 against adopting the ordinance, although the city’s mayor “insisted that police officers still have the discretion not to cite or arrest for marijuana possession but advocates want more assurance they won’t be prosecuted,” CBS News Texas reported at the time.

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In November, a huge majority of voters in Denton, Texas approved a measure decriminalizing low-level marijuana offenses. On Tuesday, leaders in the city defied those results.

By a margin of 4-3, the Denton city council voted “against adopting the ordinance that would have decriminalized marijuana,” CBS News Texas reported.

According to the station, more than “30 people spoke before the vote including several Denton police officers who say marijuana possession cases lead to searches which helps combat illegal guns and gang activity.”

“But supporters of marijuana use say it’s harmless and that there are legitimate and therapeutic applications for both clinical conditions and stresses of modern life,” the station reported.

Following the vote, the mayor of Denton “insisted that police officers still have the discretion not to cite or arrest for marijuana possession but advocates want more assurance they won’t be prosecuted,” according to CBS News Texas.

Tuesday’s vote marks a dramatic reversal of November’s election, when more than 70% of voters in Denton approved a proposed ordinance to decriminalize misdemeanor pot offenses.

The ordinance was placed on a ballot following a vote by the Denton city council last summer.

The Cross Timbers Gazette, a local newspaper, reported in November that under the new ordinance “Denton police officers will no longer write tickets or make arrests for possession of small amounts of pot and paraphernalia, and they’ll no longer stop and frisk people when they smell weed.”

The paper reported then that the “new ordinance will not apply when Denton police are investigating felony crimes, nor will it apply to state and federal agencies or to the Texas Woman’s University and University of North Texas jurisdictions.”

But there were early signs of cracks in the ordinance’s implementation.  

In February, NBC DFW reported that Denton’s “city manager presented a report outlining reasons why the ordinance is challenging to implement” during a work session.

“I recognize the voters have spoken and I understand that, but we don’t have the authority to implement those because of state law and the conflicts,” the city manager, Sara Hensley, said at the time, as quoted by the news station.

In her report, Hensley contended that the new ordinance “is superseded by the ‘Texas Code of Criminal Procedure,’ which requires officers to enforce state law.” 

“Texas cities and police departments are ‘prohibited from adopting a policy that does not fully enforce state and federal laws relating to drugs’ and ‘the city manager and chief of police cannot direct otherwise,’ according to the city,” the station reported. 

“I do not have the authority to direct the police chief to not enforce the law,” Hensley said, according to NBC DFW.

Texas legislators have recently signaled a desire to change the state’s marijuana laws.

In March, the Texas House Criminal Jurisprudence Committee voted 9-0 in favor of a bill that would decriminalize possession of small amounts of weed.

“I’ve been on a journey with this one. The essence of this bill is really simple even though the language may be a little bit confusing,” the bill’s sponsor, state House Rep. Joseph Moody said at a hearing in March. “There are tens of thousands of arrests for personal use possession in Texas annually and those cost our state hundreds of millions of dollars every single year, not to mention countless hours of law enforcement and prosecutor time. They also tag people, mostly young people, with criminal records that create life-long obstacles to jobs, education, housing and other opportunities. That’s an awful investment and an awful outcome any way you slice it.”

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Tension is building in a small Texas city between police, advocates, and elected officials. In Denton, Texas, police—sworn to protect and serve—are allegedly ignoring the will of the people, continuing citations and arrests despite a cannabis decriminalization measure that was approved last year.

NBC DFW reports that a “battle is brewing” in the city over who controls the way cannabis laws are enforced. 

According to a special presentation with a three-month report by Denton City Manager Sara Hensley at a City Council session on Tuesday, police in the city aren’t abiding by the voter-approved decriminalization measure passed last November, and are citing and arresting people for low-level cannabis possession anyways. She also provided an explanation.

During the Midterm elections on Nov. 5, 2022, voters in Denton approved Proposition B with over 70% of the vote to decriminalize possession of four ounces or less of cannabis, with some exceptions. It also bans police from using the smell test for probable cause and restricts city money from being used on THC drug testing. Proposition B became effective Nov. 22, once canvassing the election was completed. 

According to the City Manager, the City of Denton Police Department are acting as though the proposition never passed and are still arresting and citing people for low-level cannabis possession. Hensley explained that state and federal laws supersede city law, and that the police are sworn in by the state.

Denton City Councilmembers Vicki Byrd and Brandon Chase McGee asked why the law isn’t being observed. Councilmember Byrd asked, “Can you explain to the people at home how someone nobody elected such as yourself, is empowered to create public policy even after 32,000 voters provided a directive otherwise?” Mayor Pro Tem Brian Beck also chimed in, asking similar questions.

The City Manager responded by saying that the police are sworn in to the state and therefore the city law cannot override Texas law.

Considering the work that Decriminalize Denton put into getting Proposition B on the ballot and spreading awareness is like a slap in the face for cannabis advocates in the area.

“By continuing to cite and arrest for misdemeanor-quantity cannabis and paraphernalia possession after an overwhelming majority of Denton voters passed an ordinance banning the practice, Denton’s Police Department and City Management are staging an authoritarian insurrection against the voters and taxpayers who pay their salaries,” Deb Armintor, a representative of Decriminalize Denton told High Times in an statement.

“These publicly funded insurrectionists are joined by disgraced councilmembers Jesse Davis, Chris Watts, and Mayor Gerard Hudspeth, who have chosen to support these power-abusing bureaucrats instead of the people they’re elected to serve.

“It would mean the world to us here in Denton if our allies nationwide took a moment to email these councilors and bureaucrats to let them know the world is watching and they’re on the wrong side of History.”

The Denton Police Department provided a statement when Proposition B was implemented last November.

“As a forward-thinking agency, marijuana possession alone has not been a priority for the Denton Police Department for several years,” said Denton Police Chief Doug Shoemaker. “This will continue to be the case. With that said, officers must maintain discretion to be able to keep our community safe from harm. When marijuana possession pairs with other crimes that affect public safety, including offenses such as driving while intoxicated or firearms violations, such acts cannot and will not be ignored.”

But the Denton Police Department added this to the press release:

“The Police Department will continue to assess aspects of this ordinance, as passed by voters, to determine what may be implemented in accordance with both the current law as well as the voices of the population we serve.”

Between June 2021 and July 2022, of the 65 arrests that the Denton Police Department made for cannabis possession under four ounces. But keep in mind that 15 of these charges accompanied other charges unrelated to cannabis, and weapons were involved in 31.

Denton joined San Marcos, Killeen, Elgin and Harker Heights in Texas, to overwhelmingly approve local ballot propositions to decriminalize low-level possession, after Austin decriminalized cannabis earlier. In other cities, there doesn’t appear to be a problem implementing those measures.

How police continue to enforce laws in the city remains up for debate.

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This effort was passed with the help of Ground Game Texas, a local advocacy group that targeted those five cities specifically for the ballot. The organization has also been involved in other campaigns in Austin, El Paso, and San Antonio. “Big night for Ground Game! All five of our cities looking to pass marijuana decriminalization. Motivating new voters with popular, progressive issues!” the organization wrote on Facebook.

For Denton, the initiative was referred to as Proposition B, but the other four cities listed their initiatives as Proposition A. Each of them establishes an ordinance (rather than a resolution) to remove all citations and arrests for cannabis-related possession, prevent local police from issuing citations for drug paraphernalia or cannabis odor, and ban the city from using funds for THC testing, among other changes.

According to Texas NORML Executive Director Jax James, the most recent wave of approval from voters shows that people of Texas want statewide decriminalization. “Texans have shown that they want major cannabis law reforms in Texas via polling, legislative engagement, and now at the local ballot box!” James said. “This will have a positive impact on the almost half a million people living in these cities.” A poll in August also confirmed James’s statement, showing that 55% of Texans support cannabis legalization, and 72% support medical cannabis.

In 2019, the Texas House approved a cannabis decriminalization bill, but it didn’t make it through the Senate. James praises the decriminalization victories won in the November ballot, but wants to see more progress from his state. “While these local advancements are important in mitigating harm on citizens and reprioritizing law enforcement time, they result in a patchwork of differing marijuana enforcement policies based on location,” James added. “It is time for lawmakers to take steps to enact statewide reform when they convene in January 2023.”

In order of population, the top five Texas cities include Houston, San Antonio, Dallas, Austin, and Fort Worth. In May 2022, voters in Austin approved the “Austin Freedom Act,” which also enabled decriminalized cannabis. “It’s official! Austin will hold an election May 7, 2022 on the Austin Freedom Act. Voters will be able to pass a new city law that (1) ends enforcement of marijuana possession and (2) bans dangerous ‘no knock’ warrants. Thank you to everyone who got us this far—now let’s win!” Ground Game Texas wrote on social media in May.

Next up could be the city of San Antonio, which might have decriminalization on the ballot in May 2023. “These are all things that, for whatever reason, the city government hasn’t accomplished even though there’s public demand for them,” said Ground Game Texas co-founder and political director Mike Siegel. “That’s the beauty of this direct democracy tactic—the initiative tactic—where we can take something that’s popular with the people and the people can legislate directly.”

Although states such as Maryland and Missouri legalized adult-use cannabis this November, voters in North Dakota, South Dakota, and Arkansas did not. Few southern states currently allow adult-use, with the exception of the Virginia (and Washington, D.C.).

Meanwhile, Texas falls behind in progress. Earlier this year in August 2022, former NBA player Iman Shumpert was arrested for possession in Dallas. According to reports, he was carrying 6.2 ounces of cannabis in his luggage while traveling through the airport.

Recently, news outlets began to pick up a story about a single mom, Candace McCarty, who was evicted from federally assisted housing for medical cannabis. “I thought it was all legal, because I obtained it legally from the state,” McCarty told Kxan.com. “I’m just a single mom on disability, and I’m just trying to make it … facing homelessness right before the holidays.” The federally illegal status of cannabis affects countless others like McCarty.

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This could be a big year for Texas, as there are currently five different decriminalization measures on November ballots from five different cities. It appears that, even though progress is happening slowly, this will be a big year for decriminalization across the super-sized state. 

Last week, activists in Harker Heights with the progressive group Ground Game Texas announced that they have collected enough signatures for a decriminalization measure on their local ballot, making them the fifth city to do so in Texas thus far. All of these cities will be following in the footsteps of Austin, a city that has successfully passed decriminalization. 

In order to be on the ballot in Harker Heights, advocates needed signatures from more than 25% of registered voters, and they exceeded their goal.

“Following the success of Prop A in Austin and the recent securing of ballot initiatives in Killeen and San Marcos, Ground Game Texas is proud to give Harker Heights residents the opportunity to decriminalize marijuana,” Julie Oliver, the organization’s executive director, claimed, according to a press release. “Ground Game Texas continues to demonstrate that popular policies around issues like workers, wages, and weed can help expand and electrify the electorate in Texas when they’re put directly in front of voters.”

The goal with the Harker Heights Freedom Act is to ensure that “police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses,” except in certain circumstances such as a violent felony or a felony-level narcotics case that has been “designated as a high priority investigation” by the police. In other words, the goal is to only focus on high-level drug trafficking, not regular folks using cannabis.

If this measure passes, it would also ensure that police can’t give out citations to folks who simply have resonated or otherwise used paraphernalia. This will keep the system clear of those who either have small amounts of cannabis or simply a used pipe. 

In order for this measure to become a reality, city officials will still need to formally authorize the signatures and ensure they are all valid before the measure makes it onto the ballot. This initiative is just one in a broader effort to enact cannabis policy reform one city at a time, since currently in Texas, there is no process to add this to the ballot statewide. 

In the past, Austin proved that this process can work when the city approved a ballot measure to decriminalize cannabis. It also banned no-knock warrants by police in general, all thanks to the work from Ground Game Texas. 

The group also works with Mano Amiga, a criminal justice reform group committed to freeing cannabis customers. They worked with them to make sure there were more than enough signatures to get decriminalization on the ballot in San Marcos as well, continuing the reform sweep across the state. 

Also, in May, Ground Game Texas reported that activists got enough signatures to put decriminalization on the ballot for Killeen too. Similarly, activists have collected enough signatures in Denton as well, and once they are verified, hope to also get that added to the ballot. Lastly, signature collectors have also collected enough signatures in Elgin. 

In each of these cities, local officials on city councils are also able to enact these proposals as municipal law instead of ballot measures, meaning legalization could spread even faster.

As Texas continues to take on decriminalization the slow way, one city at a time, hearts and minds are changing and the overall conversation of legalization is getting closer to become a reality nationwide. 

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