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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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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