Carrying around just half a joint, even at a Dave Matthews Band concert, can land someone in hot water in Texas. But some cities, including El Paso, are taking steps to prevent low-level marijuana possession offenders from getting stuck in the criminal justice system.
The El Paso City Council is considering a cite and release program for Class A and B misdemeanor levels of marijuana possession — 2 to 4 ounces and 0 to 2 ounces, respectively.
The proposed resolution would get the city in line with House Bill 2391, a measure passed by the state legislature in 2007 that gives municipalities the authority to issue citations instead of arresting individuals charged with Class A or B misdemeanors.
But El Paso County District Attorney Jaime Esparza said the city did not consult his office before discussing the proposed program, and added the county already has a program in place to divert first-time offenders away from criminal records, which can hinder or limit job prospects.
“If the city’s interested in doing that, there really has to be a discussion with the DA’s office, with the sheriff’s office, so we know there’s a smart way of handling this,” Esparza said.
The proposed resolution was discussed at the Nov. 12 City Council meeting, where representatives voted 6-2 to direct staff to do more research. The resolution was put on the agenda by city Reps. Alexsandra Annello and Sam Morgan.
Reps. Cissy Lizarraga and Henry Rivera voted against the measure.
“We need to steer away from the idea that police and prosecutors are the solution to every issue that we have in our society,” said state Rep. Joe Moody. “Drug addiction and substance use disorders are better treated with health care than in a county jail.”
The cite and release program is already standard practice in a number of Texas counties, including Travis and Bexar, as well as at the state level. Texas Department of Public Safety officers were instructed in July to use cite and release for low-level marijuana possession.
The proposed policy doesn’t mean an offender will be completely cleared. Law enforcement still collects evidence, and an offender still has to go to court. And if someone is caught possessing at the same time as another crime, like DWI, they will get arrested.
The city’s proposal is another measure in a patchwork of marijuana policies across the region.
In 2017, the county approved the First Chance program, which allows someone without any convictions, who is in possession of misdemeanor amounts of pot, to avoid having anything filed or go on their criminal record.
Instead of being booked or having charges filed, a person in the First Chance program pays a $100 administrative fee and completes eight hours of community service.
“It’s our way of dealing with the realities of small amounts of marijuana,” Esparza said.
His office is also researching how to expand the program, including offering it to cases already in the system.
“We’ve been working with the courts,” Esparza said. “That will help us move our marijuana cases, and there’s a certain amount of accountability.”
Marijuana is still illegal at the federal level and is classified as a Schedule I drug, next to substances like heroin and LSD. But 11 states have legalized recreational marijuana, and 33 have legalized it for medical patients.
While marijuana is still illegal in Texas except for a small medical program, the state legislature in June approved industrial hemp, weed’s non-psychedelic cousin, including its byproducts like CBD oil.
The move prompted some district attorneys to say they would no longer prosecute marijuana cases because many labs throughout the state do not have the equipment to determine if something is hemp or marijuana. Esparza said he will be prosecuting those cases, and said his office is tasked with enforcing the law.
“It’s very much a legislative decision,” Esparza said. “If Texans want to legalize marijuana, I don’t think it’s very complicated for us to change our direction and say fine, you have it, it’s legal, you’re good. Treat it like beer.”
Despite growing public support for marijuana law reform, there are still some groups who are not on board with pot’s prominence.
Michael Short, president of the El Paso Municipal Police Officers’ Association spoke at the Nov. 12 City Council meeting, citing opposition to the proposed resolution and saying that cities like Denver and Portland have rising populations of homeless people because of cite and release programs. Both those cities have fully legalized marijuana.
“You’re inviting a problem, and you should not vote for this,” Short told City Council. “We’re better as a community.”
Short added that the proposed cite and release program would cost more time, not less, for law enforcement because they would have to track those cases, make presentations on them and put in for overtime to appear in court.
Moody said he was disappointed in the opposing arguments, saying they were not rooted in fact, but added that the police union does raise good questions about time savings, which he said can be hard to quantify.
He added that he wants to be able to reduce the impacts that can come from being convicted of low level marijuana possession.
“Part of the reason I want to reduce collateral consequences is because if someone has an arrest or conviction on their record that they can’t expunge, that took place when they were 17, it may keep them from getting an interview for 20 years,” Moody said.
Email El Paso Inc. reporter Sara Sanchez at firstname.lastname@example.org or call (915) 534-4422, ext. 105.