County DA questions validity of San Marcos’ marijuana ordinance, seeks AG opinion

Hays County District Attorney Wes Mau has asked for an opinion from the Texas Attorney General’s Office regarding the recently enacted marijuana ordinance in San Marcos.

Mau questions whether the ordinance, which eliminates low-level marijuana possession enforcement by the San Marcos Police Department, is void because it is preempted by state law.

“Based on the ordinance’s enactment, the following questions are raised: First, is the ordinance preempted by the laws of the State of Texas criminalizing the possession and delivery of marijuana?” Mau wrote in a letter sent to the Office of the Attorney General. “Second, if the ordinance is void due to preemption, does it expose the city to potential legal action, particularly with respect to potential discipline of San Marcos police officers unwilling to comply with an unlawful ordinance?”

The ordinance was enacted on Nov. 17 after voters unanimously approved of it during the Nov. 8 election. Proposition A, which asked voters to consider the elimination of citations and arrests by SMPD for misdemeanor possession of marijuana up to 4 ounces, received nearly 82% of votes in favor — 15,655 for Prop A and 3,475 voting against the measure.

San Marcos police, however, can cite an individual or make an arrest for Class A or Class B misdemeanor possession of marijuana if it’s a part of an investigation involving a felony-level narcotics case or the investigation of a violent felony.

Additionally, the ordinance ends citations for possession of drug residue or drug paraphernalia, the use of city funds or personnel to conduct THC concentration testing will be prohibited, and there is a prohibition against city police using the odor of marijuana or hemp as a probable cause for search or seizure.

The ordinance is only applicable to the San Marcos Police Department. The ordinance does not bind Texas State University police, Hays County Sheriff’s Office or Texas Department of Public Safety to decriminalize up to 4 ounces of marijuana in San Marcos.

In his letter to the attorney general’s office, Mau raises concerns regarding the prohibition against using the odor of marijuana as probable cause for a search or seizure.

“This section interferes with officers’ obligations to enforce the law but also raises additional concerns,”  Mau wrote. “It is inconsistent with state and federal law for an ordinance to declare that the odor of marijuana may never be used as probable cause for a search or seizure when as a matter of law, there are certainly times when the odor of marijuana constitutes probable cause under state or federal law.”

Mau also asks that if “Texas’ laws criminalizing marijuana possession set forth with ‘unmistakable clarity’ such that the ordinance was void upon enaction?”

Mano Amiga and Ground Game Texas, which both were a part of  getting the proposition placed on the ballot, said they are hoping San Marcos’s elected officials respect the will of the voters.

“[The voters] spoke loud and clear in their overwhelming approval of Prop A, as well as in their election of a new District Attorney [Kelly Higgins], who has pledged to take this policy county-wide,” said Sam Benavides, Mano Amiga Action Communications Director. “We will continue monitoring this request for opinion and are prepared to take action and defend our neighbor’s voices when an opinion is released.”

Added Mike Siegel, general counsel to Ground Game Texas, “The request for an Attorney General opinion on Prop A is a disappointing action from a lame duck District Attorney hoping to overturn the will of voters. We are monitoring this request closely, and are prepared to take action if the Attorney General intervenes. We expect the elected officials in San Marcos to respect the will of the voters who elected them, and look forward to the people of Hays County being represented by a new District Attorney who will do just that.”