Seven months after a new state law prompted county prosecutors across Texas to decline low-level possession of marijuana (POM) cases, the Austin City Council, on Jan. 23, voted unanimously to effectively eliminate the possibility of any criminal penalties associated with the charge.
The vote is seen by city leaders as both in step with Texas’ shifting public opinion on use of marijuana and a means of achieving equity in the criminal justice system. As the Chronicle reported in September, cannabis-related arrests disproportionately impact black and brown people in Austin, even after county prosecutors stopped accepting POM cases.
“It's the right thing for criminal justice reform,” Council member Greg Casar, lead sponsor of the resolution, said. “It's the right thing from a common sense perspective, and it's the right thing for racial equity."
First, a little background on how we got here. In 2019, the Texas Legislature passed a law legalizing hemp, so long as the concentration of tetrahydrocannabinol (THC – the stuff that gets you high) in the plant doesn’t exceed 0.3%. As it turns out, the lab testing required to make that determination is expensive and local governments were miffed that the state’s wise leaders changed the law without providing any funding to help local leaders enforce it.
As a result, District and County Attorneys across the state began announcing in June that they would no longer prosecute low-level possession of marijuana cases. Doing so would require expending resources on the costly lab testing, and why should they have to do that because state lawmakers didn’t fully think through the legislation they passed?
What that meant for people caught carrying small amounts of marijuana in counties declining to prosecute, is that they could be cited or arrested for the offense, but nothing would happen after that. In Travis County, prosecutors would dismiss the cases before the alleged offender was even assigned a court date. The citations were just meaningless scraps of paper.
City Council responded to that new reality by asking: Why are we putting our constituents through this hardship – ranging from the inconvenience of wasting time following up with Municipal Court over a ticket that doesn’t mean anything, to the devastating impact an arrest can have on a person’s job, housing, and personal finances – if our prosecutors are telling us they’re not going to prosecute these cases anyway?
Enter Item 59, the resolution on Council’s Jan. 23 agenda, introduced by Casar and co-sponsored by CMs Jimmy Flannigan, Natasha Harper-Madison, and Mayor Pro Tem Delia Garza. Essentially, it has two prongs: one addressing the enforcement of state law criminalizing POM, and another directing City Manager Spencer Cronk to not spend any money on the testing (with some exceptions) of substances suspected to be marijuana in criminal cases.
The latter part of the resolution is clear cut: City Councils in Texas are given authority to direct how city funds are spent, and Austin’s elected leaders feel it is a waste of resources to pay for the purchase of the expensive lab equipment necessary to test the THC concentration of a substance in some cases to determine if those levels violate state law. As Garza explained on the dais: “The state created an unfunded mandate by legalizing hemp, because it means that in order to enforce marijuana laws, local governments have to purchase expensive test equipment that isn’t widely available.”[inset-1]
Council’s decision to not allocate funding for that testing will have two guaranteed effects: Anyone arrested in Austin on a low-level POM case since June will not be prosecuted – meaning, they will not face any criminal penalties. Currently, these people are in limbo, because POM charges come with a two year statute of limitations. So, if the Austin Police Department were to obtain the necessary testing equipment before that two year period expired, those alleged offenders could be prosecuted. But that won’t happen now, because Council told APD they can’t spend money on the testing in those specific cases. The other effect is that anyone arrested after the Council vote on Thursday night will also not be prosecuted, for the same reason.
But wait: Didn’t City Council tell APD to stop citing or arresting people for low-level, personal use POM charges? Yes, they did – the exact language in Casar’s resolution says the city manager should take “the steps necessary and appropriate to eliminate, to the furthest extent allowable under state law” arrests or other enforcement action in “cannabis-related possession offenses'' when the police chief “knows, or reasonably should know, that the prosecuting entity will automatically reject the charges or that a lab report will not be obtained to test the THC concentration of the substance.” (Emphasis added by your Chronicle team.)
But City Council can’t tell APD not to enforce a law that is still on the books, even if enforcement of said law will not result in a criminal penalty. Chief Brian Manley made that clear in Jan. 22 tweet, writing that “the City Council does not have the authority to direct APD not to enforce a state law.”
The resolution tells APD they should stop arresting or citing people for these offenses, but Council has no authority to force Manley to do that. It’s possible the Chief could update department policy to discourage officers from arresting or citing over these charges – even imposing disciplinary action against officers who violate the policy – but it’s unclear at this time if Manley will take that step.
At a press conference on Friday, Jan. 24*, Manley made his position clear: “Direction given to officers has been, we have not changed our enforcement protocols today.” The chief told reporters that officers would continue to “take enforcement action” against people they encounter in possession of marijuana. He noted that enforcement against “low-level” offenses was not a priority for APD, but said, “[POM] is still illegal and APD will still enforce marijuana laws. If officers come across someone smoking or possessing marijuana, they will deal with it.”[inset-2]
Manley also said that APD’s crime lab would stop development of a methodology that would allow for them to test THC concentration in-house – work that had been underway at the department. Meaning, arrests and citations can still be made, but prosecutions will not move forward.
In a Friday afternoon phone call, Casar told us he agrees with Manley that police protocols on enforcement have not changed today. But the intent of the resolution is for APD to explore ways they can change protocols to eliminate as many low-level cannabis-related arrests and citations as possible.
But Casar disagreed with Manley’s characterization that the Council resolution changed nothing about enforcement. “Before yesterday, folks who got arrested for low-level offenses could be prosecuted in the future,” Casar told us. “[Manley] has to continue to enforce state law, but that enforcement looks really different after yesterday. After yesterday, any citation police give out will come without a court case or criminal penalty.”
What about arrests, we asked the CM? Preventing people from being arrested in these cases was a chief goal of the resolution, according to the advocates who worked on it, but Manley indicated arrests could still be effected in cases the resolution says they shouldn’t.
“The direction in the resolution is to eliminate to the furthest extent possible those sorts of arrests,” Casar said. “We’re going to push between here and May to make sure the resolution is implemented appropriately and to the letter.”
That will include a thorough review of state law to ensure that when Manley reports back in May with how protocols should be changed, his view of how many arrests for low-level cases can be eliminated align with what state law allows.
So, as of now, it’s still possible for Austinites to be cited or arrested if an officer catches them with a substance believed to be marijuana, but that citation or arrest just won’t lead to a conviction for the alleged offense. Importantly, officers can still confiscate the substance, whether or not a citation is issued or an arrest is made, because POM is still illegal in Texas, even if Council desires to eliminate enforcement and penalty for those offenses in Austin.
But the criminal justice advocates who worked on the resolution are confident it will lead to fewer arrests. “I do think it is very likely that with the resolution APD will not be citing or arresting for these offenses,” Emily Gerrick with the Texas Fair Defense Project told us. “Because they know the arrests or citations won’t be going anywhere.”
With Manley’s comments on Friday, though, that now seems less likely.
The resolution, seemingly at odds with how Manley intends to respond to Council’s request, covers enforcement in all instances of personal use. You could have a pound of pot, two pounds of edibles, or three vape pens on you (all felonies in Texas), but as long as there is no evidence you intend to sell or distribute them, APD should not be taking enforcement action against you.
The trafficking portion of the resolution (i.e., not for personal use) is where the exceptions come in. Per the resolution, APD may only access lab testing “for use in the investigation of high priority felony-level cannabis-related trafficking offenses.” Although “high priority” is not a legal term, it is meant to convey to APD that they should not seek testing in some cases. For instance, a person could be arrested or cited for a trafficking offense if they were caught passing a joint to their friend.
The resolution says those cases should be considered low-priority and not candidates for lab testing. Alternatively, someone caught with less than one-quarter ounce of a plant substance believed to be marijuana could be arrested or cited for a trafficking offense, but the resolution says APD should not take enforcement action in those cases either.
But APD can order lab testing in felony-level trafficking cases (involving more than seven grams, or involving a minor), or if APD believes that a substance needs to be tested in relation to pursuing a violent felony charge unrelated to the marijuana offense. The resolution also does not prevent APD from ordering a toxicology test against someone believed to be a public safety threat – so if you’re pulled over and are suspected of driving under the influence, APD can still test your blood.
We won’t really know what the effect of the enforcement portion of the resolution is until we have data on how officers are using their discretion to comply with it – but Manley said, at this point, department protocols are not changing. The resolution directs Cronk to report back to Council, by May 1, on how the resolution has been implemented.
And then there’s the Lege – the brainiacs who caused this confusion in the first place. They are no doubt watching all of this unfold closely. It’s possible they return to the Capitol in 2021 to fix their mistake by either funding the testing equipment or changing the hemp law, effectively making the Council’s action on Thursday moot.
So, if you were looking for another reason to support progressive politicians running for the statehouse, there you go.
This story has been updated since publication to include statements from Chief Manley's press conference and comment from CM Greg Casar.
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