Texas Cities Embrace a Softer Approach to Pot Possession as State Reforms Stall

“How harshly you’re treated for possessing cannabis in Texas now varies city by city, county by county.”

State Rep. David Simpson speaks to the Texas House.  Patrick Michels

Remember David Simpson? He was a peculiar kind of conservative lawmaker, about as fundamentalist Christian as they come, while also passionately articulating the Christian case for legal weed at the Texas Legislature.

“The Bible warns about excessive drinking, eating and sleeping,” Simpson wrote, “but it doesn’t ban the activities or the substances or conditions associated with them — alcohol, food and fatigue. Elsewhere, feasting and wine are recognized as blessings from God.”

Simpson’s House Bill 2165, which would have purged any mention of marijuana from state law and left the plant totally unregulated, actually helped make 2015 a banner year for pot reform in Texas. While HB 2165 didn’t pass, Simpson’s bill was one of two measures decriminalizing cannabis that session that got enough votes to make it out of a legislative committee — the first time pot bills had ever cleared a major hurdle in the state lawmaking process. The most significant victory that session came when Governor Greg Abbott signed Texas’ first, extremely limited medical marijuana law. Reformers figured they’d build on those successes in the 2017 legislative session.

Instead, as Heather Fazio with the Texas Marijuana Policy Project put it, “2017 turned out to be a circus.” With the Texas Legislature fixated on “sanctuary cities” and “bathroom bills,” the clock simply ran out on marijuana reform, despite what Fazio called unprecedented support from conservative lawmakers.

At a state legislative committee this past session, families hold up photos of their kids who suffer from debilitating ailments, who they say could be helped by legalizing medical marijuana.  Sophie Novack

But amid state inaction, and with much less notice, reform has finally started to take root at the local level. Over the past year, officials in Texas’ biggest counties and cities have embraced policies that blunt the impact of strict marijuana laws that Texas politicians won’t change. Prosecutors in Dallas, Houston, San Antonio and elsewhere are increasingly refusing to charge or jail people caught with small amounts of pot.

“How harshly you’re treated for possessing cannabis in Texas now varies city by city, county by county,” Fazio said.

Even though criminal penalties for marijuana possession in Texas remain some of the most draconian and nonsensical in the country, lawmakers actually gave local law enforcement agencies the option to change how they handle small-time pot possession a decade ago. In 2007, the Legislature passed a bill allowing police to give people charged with certain misdemeanor crimes, such as marijuana possession, a court summons instead of taking them to jail. Austin adopted this policy early on, but years after it went into effect the city’s cops were still arresting and jailing three out of four people caught with marijuana.

The so-called cite-and-release law gave police departments the discretion of whether to arrest people for marijuana, but it didn’t erase the possible six-month jail sentence for low-level pot possession in Texas. Over time, however, that kind of punishment has become much less likely in Texas’ largest counties, where prosecutors now generally offer to drop or reduce your charge if you comply with community service, attend a substance abuse class or pay a fine. After mulling it over for years, Bexar County District Attorney Nico Lahood last month announced that the county — home to San Antonio — would couple pre-trial diversion with a cite-and-release policy that keeps low-level marijuana offenders out of jail. Dallas County commissioners voted to adopt the same policy earlier this week.

Harris County District Attorney Kim Ogg in her office in Houston.  Michael Stravato

In Harris County, the state’s largest jurisdiction, marijuana has been a kind of gateway reform. After making it central to her campaign for office, Harris County DA Kim Ogg announced soon after her swearing-in this year that her prosecutors won’t charge people with misdemeanor pot possession if they take a class and pay a $150 fine. Local officials cheered the county for moving “away from wasteful and inefficient policies of mass incarceration.” Ogg followed up with even more sweeping reforms last month, saying her office would now stop prosecuting so-called “trace cases” involving miniscule amounts of any illegal drug. This week, she outlined even more plans to keep people out of lockup and find them help if necessary. As the Houston Press reports, Ogg called it “more diversion, less jail.”

Fazio sees Harris County as evidence that at least some officials in Texas are starting to see marijuana as the low-hanging fruit of criminal justice reform, something local cops and prosecutors don’t even want to waste their time on anymore. But the result of state inaction, Fazio says, is now an uneven and unfair patchwork of policies across Texas, where the consequences for possessing small amounts of a plant — one that more than half of states have legalized in some form — largely depend on where you live. She says her group will keep pushing for cities and counties to do damage control.

That is, until enough lawmakers in Texas agree with the words of their former colleague David Simpson: “I don’t believe that when God made marijuana he made a mistake government needs to fix.”

Michael Barajas is a staff writer covering civil rights for the Observer. You can reach him on Twitter or at [email protected].

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