Marijuana

Despite Ballot-Box Win, Denton's Fight to Decriminalize Low-Level Weed Possession Continues

During earlier discussions of Denton's Proposition B, some on the city council expressed concern that it contradicted state and federal law.
During earlier discussions of Denton's Proposition B, some on the city council expressed concern that it contradicted state and federal law. iStock/oneinchpunch
Hopes weren’t exactly high for cannabis reform advocates in Texas on election night. Some of their biggest obstacles to statewide reform, Gov. Greg Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton, sealed the deal on additional terms in office.

Proponents would have to settle for smaller victories on the local level in cities like San Marcos, Killeen, Elgin, Harker Heights and Denton. All of these cities had propositions on the ballot to decriminalize possession of small amounts of marijuana. As with Denton's Proposition B, these would create city ordinances to halt enforcement of most low-level possession charges, including citations and arrests.

These propositions got overwhelming support from voters at the polls, with about 82% approval in San Marcos, 75% in Elgin, 70% in Killeen, 60% in Harker Heights and 70% in Denton, according to The Texas Tribune.

But Denton’s city manager tapped the brakes on all the excitement over these results with a memo that basically said, “We’ll see about your ballot proposition.”

“While we continue to be dedicated to serving the community by making marijuana possession a low priority and recognize the statement expressed by voters regarding marijuana enforcement, the passage of Proposition B presents a challenge to the city regarding our ability to implement its provisions,” Denton City Manager Sara Hensley said in a memo to the mayor and City Council.

The biggest challenge, Hensley said Wednesday, is that the ballot proposition directly contradicts state and federal law. Texas bars the council and Denton Police Department from adopting rules that can keep them from fully enforcing state and federal drug laws.

“We the people will peacefully and legally prevail.” – Decriminalize Denton

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“While Proposition B imposes explicit prohibitions on the Denton Police Department’s ability to enforce laws related to low-level marijuana possession, those prohibitions are in direct conflict with, and are superseded by, the Texas Code of Criminal Procedure, which vests police officers with the authority and duty to enforce state law, including the ability to use the smell of marijuana as probable cause to conduct a search or seizure, the right to make an arrest and, where appropriate, the right to issue a citation for the possession of marijuana or drug paraphernalia, regardless of the quantity of marijuana,” Hensley said.

Hensely added, “In short, the city does not have the authority to implement some provisions of Proposition B without changes to current drug laws by Congress and the Texas Legislature.”

Moving forward, the city manager said, the Denton police will be able to keep enforcing against low-level possession. The proposition also prohibited the city from using funds or personnel to request, conduct or obtain THC testing of any cannabis-related substance. Hensley isn’t sure this will happen either because the city's charter excludes the appropriation of money through initiative ordinances like Proposition B.

The Denton city manager said the city's police department has already taken steps to deprioritize low-level possession charges and will continue enforcement accordingly.

“Going forward, Chief Doug Shoemaker has affirmed that enforcement of marijuana possession will continue to be a low priority for the Denton Police Department,” Hensley said. “However, public safety requires the Police Department’s ability to use the smell and possession of marijuana, regardless of the amount, as well as the possession of drug paraphernalia, as probable cause to conduct further investigation, which as noted above, may lead to more serious crimes being charged, including the possession of a firearm and crimes of violence against members of our community.”

Hensley told the City Council and staff that she would get back with them on the implementation of Proposition B in three months.

But Decriminalize Denton, the main group behind Proposition B, isn’t letting it go down without a fight.

“This defiant response from city admin refusing to follow a democratically decided new law is ill advised,” the group said in a statement on social media. “City staff do not have authority to overrule city law. They think Prop B contradicts state law. We disagree. But that is for the courts to decide, not hired city staff, and not even city council.”

Decriminalize Denton said it will meet with Ground Game Texas, a group that pulled off a similar ordinance in Austin earlier this year, to see how to move forward. The group said it would have updates in the next week or so and congratulated Denton residents for getting Proposition B passed.

“They can't take that away from us so easily,” the group said. “We the people will peacefully and legally prevail.”
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Jacob Vaughn, a former Brookhaven College journalism student, has written for the Observer since 2018, first as clubs editor. More recently, he's been in the news section as a staff writer covering City Hall, the Dallas Police Department and whatever else editors throw his way.
Contact: Jacob Vaughn

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