The decriminalization ordinance is heading officially to the Nov. 8 ballot for Denton voters to decide if citations and arrests for misdemeanor possession of marijuana should end within city limits and outside the jurisdictions of Texas Woman’s University and the University of North Texas.
On Tuesday evening, the Denton City Council voted unanimously in a special-called council meeting to allow residents to vote on the proposed ordinance.
“Sometimes there are the things that are done and have larger implications, and this is one in particular,” council member Brandon Chase McGee said. “I hope when it passes in November, it will send a signal to elected officials up and down the ballot about the changing attitudes of citizens all across the state. This is what people want.”
But it’s not just citizens’ attitudes. Both Beto O’Rourke and Gov. Greg Abbott are in favor of keeping people out of jail for low-level marijuana offenses, according to a Jan. 12 Texas Tribune report.
“Asked about it at a recent campaign event, [Abbott] said he believes ‘prison and jail is a place for dangerous criminals who may harm others, and small possession of marijuana is not the type of violation that we want to stockpile jails with,’” the Tribune reported.
Decriminalize Denton and 3,000 petition signers are doing their best to make their voices heard. On Tuesday, City Council members decided to listen.
If approved, the proposed ordinance would establish that:
- Denton police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses, except in these limited circumstances: Officers are permitted to issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana when such citations or arrests are part of the investigation of a felony-level narcotics case that has been designated a high-priority investigation by a Denton police commander, assistant chief of police or chief of police and/or they are investigating a violent felony.
- If a Denton police officer has probable cause to believe that a substance is marijuana, an officer may seize the marijuana. If the officer seizes the marijuana, the officer must write a detailed report and release the individual if possession of marijuana is the sole charge.
- Denton police officers shall not issue any charge for possession of marijuana unless it meets at least one of the exceptions established above.
- Citations for possession of drug residue or drug paraphernalia shall not be issued in lieu of a possession of marijuana charge.
- A Class C misdemeanor citation for possession of drug residue or drug paraphernalia shall not be issued in lieu of a possession of marijuana charge.
- No city funds or personnel shall be used to request, conduct or obtain tetrahydrocannabinol (THC) testing of any cannabis-related substance to determine whether the substance meets the legal definition of marijuana under state law, except in the limited circumstances of a police investigation pursuant to Section 21-80(b).
- This prohibition shall not limit the ability of Denton police to conduct toxicology testing to ensure public safety, nor shall it limit THC testing for the purpose of any violent felony charge.
- Denton police shall not consider the odor of marijuana or hemp to constitute probable cause for any search or seizure, except in the limited circumstances of a police investigation pursuant to Section 21-80(b).
At Tuesday night’s meeting, Denton council members Chris Watts and Vicki Byrd, a former police officer, and Mayor Gerard Hudspeth raised some concerns about how the ordinance will affect police if voters decide to approve it.
Watts discussed several sections of the proposed ordinance, including the one that prevents police from using the “smell test” as probable cause to search someone’s vehicle during a roadside investigation. Watts pointed out that police will sometimes find other laws being broken in the course of a roadside investigation.
Denton Police Chief Frank Dixon claimed there have been instances in which police have recovered illegal firearms or found controlled substances such as cocaine and meth during a roadside search.
Watts then tackled the ordinance’s limitation on police writing citations for misdemeanor amounts of marijuana only when they are investigating a felony narcotics crime deemed a high priority and violent felonies. He mentioned there are all kinds of felonies that fall in between these lines, including stolen cars and stolen property.
“My concern is that this notion of odor is not probable cause for any search becoming a de facto shield for stuff that isn’t in plain sight,” Watts said.
Watts also questioned the disciplinary section of the ordinance. According to the proposed ordinance, “Any violation of this chapter may subject a Denton police officer to discipline as provided by the Texas Local Government Code or as provided in City policy.”
He wondered how they could discipline police if they’re following state law, which supersedes municipal law.
Deputy City Attorney Michael Cronig told council members he’s been working as an attorney for 30 years, and as long as the officer is following state law, the discipline from the municipal ordinance will not supersede it in a hearing.
“I don’t believe the chief is going to discipline an officer that is doing actions authorized by state law,” Cronig said.
Council member Davis brought up the issue of drug-free zones, pointing out that they do not necessarily cover only public school property but also 1,000 feet around it. In a drug-free zone, state law allows a drug charge to increase one penalty level.
Dixon pointed out that the 1,000 feet doesn’t just relate to schools but also day cares, playgrounds and secondary education institutions.
“You are really talking about a decent amount of space across the city,” he said. “… There will be pockets where it [the ordinance] will be in effect.”
Davis then alerted residents to the fact that it may be necessary to amend the ordinance in the future if the city is sued by a police union or if there is a new state law.
“We need to be frank, and that is our responsibility to amend this ordinance to make it comply with state law or as a result of lawsuits,” Davis said.
Byrd asked Dixon about Denton police’s unofficial policy to consider misdemeanor amounts of marijuana a low priority. Dixon told her about the data he had provided the council earlier this year that showed once they quit focusing on taking people to jail for low-level marijuana offenses, they were able to cut in-custody holding by 85% simply by utilizing the cite-and-release program.
“I would not approve of this [ordinance],” Byrd said. “My law enforcement background, it does stay with me that these officers have to have support of some kind. [But] I am glad that people have an opportunity to speak.”
Nick Stevens from Decriminalize Denton was the only public speaker at Tuesday’s meeting. He answered the mayor’s question from last week and said yes, his group had met with Denton police. As a response to the mention of drug-free zones, Stevens said they didn’t include public schools in the ordinance, which have their rules to follow.
He also stressed that police can confiscate low-level amounts of marijuana from people. They just don’t want police taking people to jail for it.
Stevens said he was able to get approved under the Texas Compassionate Care Use Act to use THC for post-traumatic stress disorder and is now off all his medication. The only problem is it’s costing him about $18,000 annually when he could go to a dealer and buy small amounts of marijuana for a far cheaper price — if he didn’t have to worry about getting arrested for it.
“I’m put between a rock and a hard place,” Stevens said. “Need to be careful not to make assumption that pot smoking is equal to violent crime.”
Mayor Hudspeth conceded the point but then offered a hypothetical counterpoint about criminals subverting the ordinance and using it, as Watts claimed, as a “de facto shield” to commit other crimes.
Hudspeth reiterated that the ordinance wouldn’t be actionable due to current state law and that he had a pulse on the city and a “read of citizens to be in tune with that” in November.
He then offered personal testimony about what it’s often like to be a Black man pulled over by police. He mentioned a time when he lost two hours after a Texas Department of Public Safety trooper — whom he said either didn’t like him or the kind of car he was driving — and a drug dog alerted to a possible cannabis smell.
“They seized our car only to find out there was nothing in my car,” Hudspeth said. “The drug dog had alerted to cigarette smoke and not [cannabis].”
Council member Brian Beck replied, “Appreciate the mayor making the applicants’ case.”