Cases for the lowest level offense of possession of marijuana cases from the Denton Police Department go to the Municipal Court under another charge name — possession of drug paraphernalia — where the judge is now issuing deferred disposition to those who ask for it.
Over the last few years, some police departments in North Texas have been issuing citations where the possessed amount is under a certain level or give a drug paraphernalia citation. Judge Tyler Atkinson of the Denton Municipal Court said within the first half of 2021, 147 possession of drug paraphernalia tickets have come across his court from Denton police as well as the police departments from the universities.
Someone found with drug paraphernalia or an ounce or less of marijuana would get the paraphernalia citation, a Class C misdemeanor. Atkinson said he has standing orders where someone charged with this can request deferred disposition — the dismissal of this charge if the accused complies with deferred conditions.
“Under the law, everyone has a right to plead Not Guilty and have a trial — even a jury trial — and has a right to hire an attorney,” Atkinson said in an email. “But, if their goal is to not contest the charge and they want to keep it off their record, they can almost immediately go online to our website and request to keep the charge off their record.”
Whether the request comes online or in person during a pretrial hearing, Atkinson said he’ll accept the request. He said he’s never denied a request for deferred disposition on a possession of drug paraphernalia charge.
About 60% of those 147 cases are closed completely. Atkinson said out of all 147 cases, 70% were resolved in a manner that keeps the charge off their record and the other 30% resulted in convictions or jail time credit, Atkinson said.
He said he gives some jail credit if they were in jail on a higher charge for a sufficient amount of time.
“Instead of paying, they pled no contest and accepted conviction for the charge,” he said in a phone call Friday. “Sometimes the prosecutor has two charges. They can move for dismissal on one if the person agrees to do something for another. It’s a plea agreement. That 70% includes those kind of cases where they move for dismissal on one [charge] and proceeded with another. That group, the charge stayed off their record.”
Roughly 40% of those 147 cases are still open.
The Denton Police Department has said before that they take a person’s situation as a whole into account before making a decision on what charges to issue relating to marijuana.
If you’re caught with a misdemeanor amount while also being in possession of a firearm illegally, or a stolen gun or if there are felony warrants out for your arrest, that can lead to a misdemeanor charge of possession of marijuana rather than the drug paraphernalia charge.
Being caught with amounts over an ounce would result in an arrest.
A Texas law change in 2019 also made it more difficult for district attorneys to prosecute misdemeanor marijuana cases, and the number of those cases filed in the state after hemp was essentially legalized dropped. The law changed the definition of cannabis and redefined it as a substance that has more than 0.3% of tetrahydrocannabinol, the chemical in marijuana that gets users high.
District attorneys across the state said they wouldn’t be able to prosecute most low-level cases unless the arresting agencies submitted results that the substance they seized passed that 0.3% threshold.
Atkinson said the conditions for deferred disposition are typically to pay a fine and agree to get no more citations for 90 days, but can also include taking a drug or alcohol education class or doing community service hours. The case is then dismissed and not reported on their criminal record if they complete deferred disposition. There’s also an option for people to get the case expunged.
“An expunction is an order from the judge to local and state agencies requiring them to delete any records related to the citation and the charge,” he said. “If granted, an expunction legally allows the person to state that they have never received a citation for the offense.”
However, this does take a few extra steps, so someone can get the case dismissed and never have it expunged.
If someone is caught again after that deferred disposition period, they can go through the same process again.
“They could try deferred again,” Atkinson said. “The court used to have rules where you could only request one deferred disposition per year. When I came on board with the city, I removed that as a restriction for deferred disposition.”
Asked why he made the change, Atkinson said he wanted to remove barriers for people.
“In every process, it’s my goal to remove barriers to resolutions and make sure everyone has access to the outcome that they want to have for their charge under the law,” he said. “There’s no legal requirement or prohibition on getting multiple deferred dispositions within a certain period of time, and so adding that extra burden on an individual causes more things to go on people’s records when there’s no legal need for them to have a record created.”