The Austin Chronic: How Worried Should Cannabis Users Be Over Paxton Suing Austin?

What Austin looks like in Ken Paxton’s mind, I guess? (Art by Zeke Barbaro (Photos by Jana Birchum / Getty Images))

On Jan. 31, Texas Attorney General Ken Paxton turned his attention away from his many legal concerns – an upcoming court date on felony fraud charges, depositions in a separate whistleblower lawsuit, and renewed allegations that he’s broken state ethics laws by not disclosing real estate holdings – to file five lawsuits against Texas cities that have decriminalized personal possession of marijuana: San Marcos, Elgin, Killeen, Denton, and, of course, Austin.

“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 wrote in a press release announcing the court filings, which accuse municipal leaders of acting beyond their authority and violating the Texas constitution.

Taking cues from the 1936 propaganda series Reefer Madness, or a recent Wall Street Journal article on the matter, he characterized cannabis as causing psychosis.

Though Ground Game Texas Executive Director Julie Oliver told the Chronicle it’ll likely take years to play out in court, the A.G.’s lawsuit could potentially reverse Austin’s relaxed cannabis policies, which were set into motion four years ago by then-City Council member, now-Congressman Greg Casar. Last week, Casar fielded questions trying to make sense of the Paxton backlash.

Austin Chronic: How concerned should Austin’s cannabis users be about this lawsuit?

Greg Casar: It’s a real problem, not because we are wrong on the law, but because the Texas Supreme Court has become so obedient to people like Ken Paxton and Greg Abbott. They’ve become less independent, they read the law less closely, and it’s become more political. I still believe there’s a very good chance that reason and the law will prevail, but we should always be concerned when you’re talking about the Texas Supreme Court.

AC: In 2020, you stated your goal as to “decrease personal marijuana arrests to the greatest extent possible under state law.” That was achieved, but now the A.G. wants state law to supersede. What case can be made for a city to define its own priorities?

GC: Even before 2020, in 2018, I authored the policy that said if you can give someone a ticket for pot instead of arresting them, always give them a ticket. That cut off tons of arrests and moved it over mostly to tickets. Then, in 2020, we said we wanted to get as close as we can to zero arrests and zero tickets, and we virtually got there.

There are two arguments we can make to hold on to the policy. One is that cities have authority over where to spend their time and resources. We could have all of our cops, all day, chasing down nothing but jaywalkers and drivers that failed to signal a turn. Thank God they don’t, because we should prioritize city resources on better things like investigating cold cases and violent crime – not chasing people down for a joint.

Argument number two is that hemp is legal in Texas and no cop who’s stopped you, nor his police dog, can identify the difference in THC content of cannabis. So why would the police make an arrest when they don’t know if you’re breaking the law or not? That’s always been our strongest argument and I don’t think Ken Paxton has a good legal argument against that. Now, some police departments have bought expensive testing equipment to confiscate the alleged cannabis and test it, but in Austin we said we don’t want to buy that equipment, and that falls in the City Council’s purview.

AC: In May 2022, Austin voters approved a decriminalization policy at an 85 percent rate.

GC: Which is Democrats and Republicans. That’s where Ken Paxton has to choose between the majority of Republican voters who believe in safe and responsible cannabis use and a small number of his dogmatic anti-freedom fringe that he’s catering to.

AC: Should that kind of supermajority in the ballot box be the ultimate standard of law, provided that no one is hurt or impeded upon?

GC: Exactly. Now that the genie is out of the bottle, almost everybody recognizes people don’t get hurt, the sky doesn’t fall, and actually everybody’s just better off – that’s why you’ve seen a huge swing of public opinion. Before, there were a lot of people who were told to be scared, but now that the experiment’s been tried and everything’s just fine, the vast majority of people say “Look, guys, this is better.”

AC: In our city, the situation has been consistent for four years. Why do you think this lawsuit is happening now?

GC: There’s a ballot initiative starting in Dallas. That’s big because if it’s passed in Austin and Dallas, at that point the Republicans probably have no argument left – and they probably know it will pass in Dallas. So it’s possible that Ken Paxton’s right-wing fringe is just getting more upset because they see the writing on the wall. Once it’s passed in enough Texas cities, why not, at minimum, just decriminalize it across the state? What Ken Paxton is doing isn’t popular with the majority of people.

AC: What are the realistic outcomes of this? Obviously, one is that the city attorneys defend against the suit. Is the other possibility that the city backs down and reverses how we enforce cannabis possession? That would mean undoing a proposal that was passed on a ballot. Can that even be done?

GC: I don’t believe the city can voluntarily undo what the voters passed on a ballot. I think it would require the court undoing what the voters approved for [Austin’s decriminalization policy] to go away.