AUSTIN, Texas — Texas Attorney General Ken Paxton's office has filed a motion to appeal a district court's ruling that allowed an Austin marijuana ordinance to stay in place.
The initial lawsuit filed by Paxton's office attempted to stop the city of Austin from deprioritizing enforcement of low-level marijuana offenses. District Judge Jan Soifer dismissed the suit on Wednesday.
On Friday, court documents indicated that the state is planning to appeal that ruling.
Paxton's office filed the lawsuit earlier this year over concern about the Austin Freedom Act, which voters approved in 2022. It deprioritizes enforcement of low-level marijuana possession, ending citations and arrests for Class A or Class B marijuana offenses.
Lawyers with the AG’s office said they were looking to place a temporary injunction on the ordinance until the lawsuit went to trial.
Assistant Attorney General Ryan Kercher said under the current ordinance, law enforcement can only make citations or arrest for misdemeanor marijuana possession if it's part of a larger felony case or if they're investigating a violent felony. In a courtroom on Monday, Kercher said the ordinance contradicts current state law and the constitution.
“The Texas Constitution puts in the discretion of the Legislature what laws will criminalize different substances, what the criminal laws of the state will be. It is plain that cities cannot create a patchwork of legal zones where sometimes state law matters and sometimes it does not,” he said.
Special Counsel Jacob Przada said the ordinance has also stripped law enforcement of their discretion to enforce the law.
“What we are not doing here is trying to get the defendants to get them to send more police onto the streets to start arresting or citing more people. What we’re trying to do is get their discretion back,” Przada said.
He said the city of Austin has influenced other cities to adopt similar ordinances. The attorney general’s office has sued four other cities, including San Marcos and Elgin, over these policies.
Przada said inconsistency in rules will confuse people and claims it'll promote chaos.
“What we're asking is that the state, when it looks at its subordinate political branches, political subdivisions, it sees uniformity. Because uniformity is important in ensuring efficient government and prospering at the interest of citizens,” he said.
Lawyers representing the city of Austin defended their policy, stating that is what the people voted for.
Assistant City Attorney Sara Schafer said 85% of voters who cast a ballot in the May 2022 election voted in favor of the ordinance. Since then, it's been unchallenged.
She said changing the policy would confuse people and potentially increase misdemeanor marijuana arrests, which she claims law enforcement can't handle. Schafer said forensic labs don’t test any marijuana in misdemeanor cases because they do not have the workforce or funds to do so.
“They’re basically asking the city to reallocate resources in its crime lab to validate and process to be able to test the concentration of THC levels – a massive amount of work, money, time, resources that will take the focus away from the other things the crime lab is doing like testing fentanyl overdose cases,” she said. “When you look at it in that light, the city clearly has discretion on how to allocate its resources on how to enforce state law … while not allocating resources to something that will be extremely difficult to carry out.”
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Ground Game Texas, the advocacy group that collected the signatures to get the initiative on the ballot, released a statement on Wednesday, following Soifer's ruling:
"This ruling sets an important precedent for marijuana reform policy in Texas. Judge Soifer rightly recognized that the AG has no business telling cities how to enforce drug law.
As attorneys for the city noted in their motion to dismiss, “The Austin voters have overwhelmingly spoken about how they believe police resources should be used within the community.” A resounding 86% of Austinites voted the state’s first marijuana reform policy into law in 2022.
Earlier this year, Paxton sued the city over its years-old policy directing police to decline to arrest Austinites for simple marijuana possession. Soifer heard testimony this Monday from Austin Police Department employees and other city officials that their resources are better devoted to the investigation of violent crimes and more serious drug offenses, such as fentanyl trafficking, rather than devoting lengthy and expensive testing to determine whether someone is in possession of marijuana, or hemp, which is legal under state law."
The city of Austin also released the following statement:
“We appreciate the court’s time and careful consideration and are pleased with the outcome. The ordinance challenged by the now-dismissed lawsuit reflects the will of the voters, who sent a clear message that law enforcement should prioritize resources to focus on critical public safety issues, rather than low-level marijuana possession. At its core, the ordinance does exactly that, without removing reasonable discretion from police officers to enforce the law.”