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San Marcos City Council showed substantial agreement in a draft of Cite and Release policy and in pushing forward criminal justice reform in San Marcos.
Four San Marcos City Councilmembers came out in support of a Cite and Release ordinance during Tuesday’s regular meeting, while the remaining members debated specifics of the policy.
The San Marcos City Council discussed whether to pursue Cite and Release as an ordinance or resolution, a list of possible offenses to be eligible for citation rather than arrest, and the language of the draft to provide more strict guidance on an officer’s discretion following personal testimonies and support from the public.
Interim Police Chief Bob Klett clarified that Cite and Release as an ordinance would provide council support and direction to the San Marcos Police Department to use their discretion in specified ways. Neither an ordinance or resolution removes the police discretion given by the 2007 state legislation.
The Cite and Release program attempts to decrease arrests for low level, non-violent misdemeanors. Law enforcement across the state already uses discretion to issue citations when offenders are eligible: they must be a county resident, must not be a threat to themselves or others, must not be publicly intoxicated, must not have outstanding warrants and must not be charged with a more serious offense. A citation still requires the offender to appear in court at a later date where they may get a fine or jail time.
Public testimonies pleaded council to move forward with an ordinance by sharing personal experiences with law enforcement: times they were given second chances; times where jobs were lost and college degrees weren’t finished because of attendance issues when they were in jail; stories of the impact of arrests on the economy and on family life; and fears of deportation.
Councilmember Mark Rockeymoore, member of the Criminal Justice Reform Committee, supported the ordinance: “I was unable to get a job other than minimum wage even though I had advanced degrees. If I had money, $70, I wouldn’t have spent the night in jail which has affected my life for 15 years.”
Councilmembers Baker and Derrick also supported an ordinance. Derrick was especially concerned about the damage done to a family and single parents, “If you have been arrested, you can’t live in public assisted housing. Working at the university, I have seen lives absolutely ruined after students are arrested for small amounts of marijuana. There is no college, no scholarships, no job opportunities (for them).”
Mayor Jane Hughson supported using Cite and Release as much as possible given eligibility but was not ready to do an ordinance at this time. Hughson, however, wants to see more data on when officers use their discretion to arrest and why, which will be available in the coming months.
The third member of the Criminal Justice Reform Committee Council Member Ed Mihalkanin supported moving forward with a resolution given the measures in place for record keeping and reporting between the police department and the city manager’s office. “In my mind, the most powerful official of the government is a police officer. It is the only official of the government that can take away someone’s freedom. They have to be aware of the immense power,” he said.
Police officers also have discretion to exercise street diversion, or give a verbal warning, rather than issue a citation or arrest.
Data shows that San Marcos Law Enforcement is using discretion to arrest when offenders are eligible for citations often. New police data shows only 23% of those eligible to be released with a citation were released in 2019 and 77% were arrested. In 2018 the updated numbers showed just 13% of eligible offenders were released with a citation. Previous reports showed not a single black person was released with a citation; however updated reports show that in 2018 1 of the 34 eligible black offenders was released with a citation and 7 of 23 eligible black persons in 2018 were released. The rest were arrested.
Council also discussed what offenses would be eligible for citation. Four of the seven outlined in the draft discussed were criminal mischief like slashing tires or damaging property less than $750, graffiti, theft of property less than $750, and theft of services less than $750.
The Criminal Justice Reform Committee unanimously agreed to keep the first three instances: Class C misdemeanors other than public intoxication, assault, of family violence; possession of marijuana less than 4 oz; and driving with an invalid license.
The seven items were taken directly from the Texas Code of Criminal Procedure added in 2007, which was the central argument for including all seven in San Marcos legislation. Mihalkanin had reservations about being a pioneer city in this criminal justice reform, “When you have hundreds of Texas cities and no other cities have this as an ordinance, frankly, this is uncharted territory.”
“We are not saying they are permanently free to go, they still have to do something (appear in court, pay a fine, community service, etc.) through the criminal legal system to correct that,” Baker argued. “If we take these out of the ordinance, they have to do that and spend the night in jail. I don’t think we need to make them do that.”
The decision as to what offenses are eligible for citation will be discussed again when the draft legislation returns to the council at a later date to be considered as an ordinance.
There are instances when someone may be eligible for Cite and Release but an officer finds it necessary to arrest. Section 2 of the draft lists circumstances in which an officer may arrest regardless of eligibility, but there are concerns over whether that list should be the only reasons to arrest.
Director of Public Safety Chase Stapp has previously stated that the list of circumstances of when it is appropriate to arrest are fairly exhausted but Klett warned of unforeseen circumstances where there might be an unintended consequence. “Our officers are out there every day making judgments of nuance,” he said.
Stapp and Klett clarified repeatedly that in addition to the list of acceptable cases of arrest, the state reserves an officer’s discretion in all cases. This resolution or ordinance will provide direction as to how they support the Cite and Release policy being implemented in San Marcos.
City Manager Bert Lumbreras said, “I understand the passion around this issue, around discrimination. We all joined in this effort to try to resolve it. This is an area that we all agree has to improve. This community is going to hold us accountable whether this is a resolution or an ordinance.”
