In May 2022, 85% of Austin voters who cast a ballot voted in favor of the Austin Freedom Act, which deprioritizes the enforcement of low-level marijuana offenses.
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AUSTIN, Texas — Texas Attorney General Ken Paxton's office is trying to stop the city of Austin from deprioritizing enforcement of low-level marijuana offenses.
His office filed a lawsuit earlier this year with concern over 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 say they’re looking to put a temporary injunction on the ordinance until the lawsuit can go to a 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 the 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 want the case to be dismissed, saying their policy 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.”
Ground Game Texas is the advocacy group that collected the signatures to get the initiative on the ballot. Mike Siegel, its political director, said the policy is important for democracy reasons – not only because Austin voters decided on it, but also because it reforms some parts of the criminal justice system.
“Historically, marijuana has been something that’s disproportionately enforced against Black and Latino communities. There’s been a lot of racism in the enforcement,” he said.
Siegel said he hopes the court will keep the ordinance in place.
"From what I understand, there's been no negative impacts of this policy, that there hasn't been any crime wave or massive, you know, abuse of marijuana. But instead, the city has been able to allocate its scarce police resources towards higher priority public safety needs," he said.
Kercher with the AG's office said they just want to return discretionary power to law enforcement and said contradicting rules can cause harm in the long run.
Schafer with the city of Austin said the state doesn't have evidence of any real harm caused by the policy.
Siegel said his group wants to uphold the voices of Austin voters.
“The attorney general decided to file a suit against the city, I believe, for the attorney general's own political purposes. It's not because there's any public safety concern, because, frankly, I don't think anyone in Austin is complaining about this ordinance. Rather, it's a political agenda from the attorney general,” Siegel said.
Judge Jan Soifer of the 345th Travis County District Court said she will take time to consider both arguments and come to a decision on whether to grant the injunction or dismiss the case. It's not clear when that decision will be made.
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