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The San Marcos City Council approved the Cite and Release Ordinance in a 4-3 vote after making several amendments at its virtual council meeting Tuesday.
Councilmembers Maxfield Baker, Melissa Derrick, Joca Marquez and Mark Rockeymoore voted to approve the amended ordinance, while Mayor Jane Hughson and councilmembers Saul Gonzalez and Ed Mihalkenin voted against it.
The Cite and Release Ordinance came from a 2007 Texas Law that outlines when police officers could give citations rather than arrest for low-level nonviolent crimes. The San Marcos ordinance would direct the San Marcos Police Department to give 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.
Citation eligible offenses are Class C misdemeanors other than public intoxication, assault, or family violence, possession of marijuana less than 4 ounces, driving without a valid license, criminal mischief causing damage less than $750, graffiti damage less than $750, theft of property less than $750 and theft of services less than $750.
Supporters would like to minimize the number of people forced to spend the night in jail, which has been shown to disrupt family life, job stability and achieving higher education.
Those who voted against the ordinance said they would support the policy in the form of a resolution which would give the council more time to review data and eventually revisit the possibility of an ordinance.
A resolution would support use of cite and release for the outlined offenses but would preserve the officer’s discretion to issue an arrest for reasons not outlined in the legislation. Ordinances are civil law and so while the officer’s discretion is preserved under state law, arresting outside the listed reasons could make them liable to be sued individually, City Attorney Michael Cosentino and Interim Police Chief Bob Klett explained.
Section 2 of the ordinance is meant to protect officers’ discretion by recognizing there may be reasons when someone is eligible for a citation but they may need to be arrested: if they are not a Hays County resident, they are publicly intoxicated, they may be a threat to themselves or the community if they were to be released, they have outstanding warrants or are charged with a more serious offense.
This section stated that the reasons listed are the only reasons when an officer may find it necessary to arrest until Mayor Hughson suggested to remove the word “only.” The amendment passed 4-3 with Baker, Marquez and Rockeymoore opposed.
Baker warned the council that the word “only” is what will get real traction on the issue, “I would encourage my colleagues to think about how effective this document will be without the limited scope of required discretion.”
City Attorney Michael Cosentino said, “It’s a pretty comprehensive list but it may not encompass every situation an officer might see. It does limit discretion in the ordinance. The officer would be in violation of the ordinance if they arrested in circumstances that weren't listed.”
The ordinance also requires SMPD to report data on when they use cite and release and justification for arrest in the cases when an arrest is made.
The San Marcos Police Officers Association (SMPOA) President Jesse Savaadrea stated in an email to the city council, “In an effort to protect its members the SMPOA will advise its members to cite and release all offenders so the officers are never accused of 'Not being Justified' in their decision to arrest. Resulting in all street diversions receiving citations and all who have benefited from officer discretion and their street diversion to be entered into the criminal justice system.”
Cosentino clarified that use of the word “justification” in the ordinance is synonymous with reason and not defense as it is used in the penal code.
Receiving Savaadra’s email as a threat, Derrick ultimately moved to remove the word “only” stating, “I want people to still continue to be released. I want the officers to feel that it's under their purview and discretion and won’t cause them to be involved in a lawsuit.”
In an attempt to limit the possibility of an officer being sued in a civil suit, Cosentino amended Section 2 of the ordinance to clearly place the responsibility of assessing whether the subject would endanger themselves or the community on the arresting officer so that it may not be later determined in court that the suspect would not have endangered themselves or the public. The amendment passed 7-0.
Hughson proposed another amendment to clarify identification must be a photo ID with a Hays County address, or a photo ID, accompanied by a utility bill or other document listing a Hays County address and a name matching the photo ID.
Considering the broad range of ID options listed in the ordinance is already covered in the Texas Penal Code, the amendment was not voted on and Hughson may bring it back for the second reading after further research.
Hughson also proposed an amendment that included a citizen comment agenda item in police chief advisory panels.
Further concerns from the opposing councilmembers covered the county’s recent efforts prior to COVID-19 to establish 24-hour magistration and a diversion program which would result in more people being released without citation or arrest.
The county has recently encouraged officers to utilize Cite and Release to keep people out of jail and prevent the spreading of COVID-19 in jails.
Rockeymoore highlighted this practice among the other efforts to remind council that Cite and Release was created by the state, is encouraged at the county level and has been a tool for San Marcos Police Officers to use for some time, “We are providing context and support for what our officers and the county are already doing.”
