Council approves Cite & Release ordinance

San Marcos City Council passed a landmark ordinance Tuesday codifying the first Civil Law in Texas to guide police officers on when to issue citations rather than make arrests.

San Antonio and Austin have made resolutions that express support for practicing the 2007 State Cite and Release policy but none go so far as an ordinance. 

City council was prepared to postpone the vote in light of San Marcos Police Officer Justin Putnam's death on Saturday but Public Safety Director Chase Stapp didn’t feel a need to delay. After consulting with San Marcos Police Department Interim Chief Bob Klett and San Marcos Police Officers Association (SMPOA) President Jesse Savaadra, Stapp said, “When a tragedy like this happens, our officers aren’t able to postpone the difficult decisions they make on a daily basis, so they would like to get the guidance from council whatever that may be.”

Councilmembers Melissa Derrick, Maxfield Baker, Joca Marquez and Mark Rockeymoore voted in favor of an ordinance, while Mayor Jane Hughson and Councilmembers Ed Mihalkenin and Saul Gonzalez voted against it but expressed support of the policy in the form of a resolution. Baker shared that 51 residents emailed the council in opposition of the ordinance and 172 emailed in support. 

The ordinance aims to reduce arrests for low-level nonviolent misdemeanors and the damage caused to a family or an individual after spending a night in jail. Councilmembers and public commenters told stories of losing jobs, missing final exams and working minimum wage jobs despite higher education over the 9 months of debate before the ordinance passed..

Once a citation has been issued, the offender still has to go through the legal process and appear in court where they may receive a fine, community service or jail time. 

While the policy originates from the state law, several amendments were made solidifying the efficacy of the ordinance and attempting to ensure police officers are accountable for making unjust arrests. 

Offenses that are eligible for citation include: 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 Class B misdemeanor; Graffiti Class A or Class B Misdemeanor; Theft of Property less than $375; and Theft of Services less than $375.

After the amount was amended from $750 to $375 for theft of property and services, Klett said, “It doesn’t mean that an officer can’t use cite and release, it just shows what council is choosing to support in guidance.” Officers have discretion to issue citations up to $750 through the state law, as they have been able to since it was created in 2007.

Police officers have the discretion to make an arrest only in certain cases: when the subject is not a resident of San Marcos; when there is reason to believe that the safety of the community or the subject would be in imminent danger by the release of the subject; when the subject demands to be taken before a magistrate; when the subject has an outstanding arrest warrant; or when the subject is suspected of having committed a more serious offense. 

Stapp and Klett have both said in previous meetings that the list is “fairly exhaustive.”

The word “only,” considered by several councilmembers to be the cornerstone for protecting against discrimination, was added back in by councilmember Melissa Derrick after she motioned to remove it last council meeting. Last meeting’s amendment attempted to appease the SMPOA who said the word limited their ability to make discretionary decisions about when to arrest. 

“I made a huge amendment taking ‘only’ out, hoping that would appease SMPOA, but that wasn’t enough," Derrick said. "Three days later they put out a hit piece. It looks like a mug shot. It has caused me to feel feared that people are looking at my face every day. I made a huge compromise and they put out a hit piece. It wasn’t enough for them.”

Derrick refers to an advertisement placed by the SMPOA in the San Marcos Corridor News in the style of a “wanted” poster with the faces of the four councilmembers who were in support of an ordinance. 

The ordinance lists acceptable forms of identification other than a state or federally issued ID, including a student ID or employee ID. The ordinance previously included utility or rent bills as an acceptable form of identification but they were removed after Klett explained that officers come across people without IDs all the time and accept many forms of identification down to verbally stating their name, address and date of birth. There was an amendment that states it is up to the officer to determine whether the subject is a resident.

The ordinance outlines when it is appropriate to make an arrest for a citation eligible offense and mandates that the reasons for making the arrest must be documented in the incident report. It also preserves the officer’s discretion to continue to practice diversion rather than cite or arrest. The common example of diversion given by police officers has been destroying small amounts of marijuana on scene, issuing a verbal warning and releasing the subject.

Saavedra previously said in an email to city council that if this ordinance were to pass, he would tell officers to issue citations in all cases and abandon diversion practices despite the ordinance giving officers permission to divert, or issue a written or verbal warning instead of citing or releasing.

“I believe that many of our officers will continue to utilize street diversion where appropriate because they are conscientious professionals who are not out to arrest in all available instances," Klett said. "However, it is understandable to think they are now very concerned about how their use of discretion will be scrutinized, particularly about their exposure to federal civil rights violations if they are perceived to violate the ordinance.”

The main concern of SMPOA was that an officer is protected criminally by the state from making an unjust arrest under qualified immunity, but an ordinance means an officer could be subject to civil lawsuits should they make an unjust arrest. However the city’s attorney Michael Cosentino said, “we aren’t often sued for making bad arrests.”

Section 4 of the ordinance mandates the city manager to provide a quarterly report detailing the cite and release process that will include every instance that a resident was issued a citation instead of an arrest and every instance that a resident was arrested for a citation eligible offense and the reasons for it. It was amended to say that an officer must report “reasons” rather than “justifications” for the arrest. 

Section 5 of the ordinance directs the city manager to work with the police chief’s advisory panel. The meeting included a citizen comment agenda item, which was added by Hughson last meeting, and was removed with an amendment from Marquez. Councilmembers who supported removing the citizen comment agenda item said that residents need to be much more involved in the process of improving policy and should not be limited to a 3 minute comment period. 

“The entire San Marcos City Council wants what is best for the officers of our police department as well as our citizens," said Rockeymoore, who sits on the Criminal Justice Reform Committee. As we move forward, know that Cite and Release is only the beginning of our efforts. Cite and Divert and LEAD will follow, as these initiatives are being explored at the county level as well. We look forward to continuing to work closely with the police department and its chiefs, as we have for the past 9 months.” 

The ordinance was shaped with 9 months of collaboration between the San Marcos Police Department, City of San Marcos staff and the San Marcos City Council, with months of advocacy and groundwork from Mano Amiga.

There are, however, concerns with the possibility of unindented consequences associated with the ordinance's passing

"I have some fears that there could be some serious unintended consequences for this (ordinance)," Hughson said.

But Mano Amiga Policy Director Eric Martinez said Tuesday's vote is the first step toward modernizing the criminal justice system in Hays County.

"We thank everyone who joined this shared effort to reduce unnecessary arrests, and also those who will continue to march alongside us as we pursue expanded transformation of our community for the better in weeks and months ahead," Martinez said.

The ordinance will go into effect May 31 after city staff rewrite the ordinance in standard format.