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Hays County District Attorney requests opinion from AG Ken Paxton on new marijuana ordinance

The request comes after San Marcos voters recently passed Proposition A in November.

SAN MARCOS, Texas — Hays County Criminal District Attorney Wes Mau this week requested an opinion from Texas Attorney General Ken Paxton regarding a recently enacted San Marcos ordinance decriminalizing low-level marijuana offenses.

Voters passed Proposition A back in November. The ordinance, which became effective on Nov. 17, called for the elimination of enforcement for people found in possession of four ounces or less of marijuana.

"Based on the ordinance’s enactment, the following questions are raised," Mau wrote. "First, is the ordinance preempted by the laws of the State of Texas criminalizing the possession and delivery of marijuana? 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 new ordinance also prohibits San Marcos police officers from using the smell of marijuana as probable cause for a search.

"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 wrote. "The determination of probable cause is to be made on a case-by-case basis by the judicial branch. A legislative act of a city attempting to declare that no probable cause exists when in fact reasonable grounds exist to believe that there has been a violation of a criminal law likely violates constitutional separation of powers."

Mau, a Republican who did not seek re-election in November, will soon be leaving office. Voters have since elected Democrat Kelly Higgins, who has expressed support for the movement to decriminalize marijuana.

In November, Mau released the following statement to KVUE News following the vote:

"The voters in San Marcos did not de-criminalize marijuana. They voted to prohibit enforcement of the State law by San Marcos Police Department officers who have sworn to uphold that same law. The proposition does not purport to apply to other law enforcement agencies, nor does it apply specifically to the Criminal District Attorney.

"While the police often release offenders at the scene for small amounts of marijuana, when they do make an arrest, the officer takes the person into custody and transports them to jail where they await magistration within 24 hours. Typically, such an offender would receive a personal recognizance bond and be released immediately unless additional charges or outstanding warrants prevent it. I have never seen any figures relating to the cost associated with arresting a person and holding them in jail for less than two days that would justify a figure of $27,000 per arrest. That is close to the cost to keep an inmate in prison for a year, and even our outsourced inmates are housed for less than $100 per day. Absent an accounting demonstrating where that figure comes from, I suspect it is overblown by several orders of magnitude."

In a statement, Mano Amiga, the organization that helped push to get the proposition on the ballot, said:

"We’re counting on the elected officials of San Marcos to respect the will of the voters, who spoke loud and clear in their overwhelming approval of Prop A, as well as in their election of a new district attorney, who has pledged to take this policy county-wide. 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."

Ground Game Texas, who also pushed for the proposition, called Mau's actions "disappointing." The group's general counsel said in a release: 

"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."

The City of San Marcos declined to comment on Mau's request for opinion when reached by KVUE on Friday.

The development in Hays County comes just weeks after the Harker Heights City Council repealed a similar ordinance decriminalizing low-level marijuana possession in the city. Council members repealed the ordinance approved by Harker Heights voters on Nov. 8. Harker Heights City Manager David Mitchell said the ordinance was repealed because such decisions are up to the Texas Legislature.

The City of Killeen is planning to revisit its own marijuana possession ordinance after the city council put a pause on implementing the proposition that passed with around 70% of the vote.

The Austin Police Department ended most arrests and ticketing for personal marijuana possession back in 2020. 

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