San Marcos voters passed a marijuana ordinance this November that would halt San Marcos police from arresting people for low-level marijuana offenses. Now, the Hays County district attorney is looking to Texas leaders for their opinion on the ordinance.
Hays County District Attorney Wes Mau sent a letter to Texas Attorney General Ken Paxton requesting his opinion on San Marcos’ marijuana ordinance on Thursday, December 8.
“I am asking for the opinion because San Marcos officials are justifiably concerned that if the ordinance is legally or constitutionally void, then if the city disciplines officers for enforcing the marijuana law, as the ordinance requires, the city could be liable,” Mau said to MySA in an email.
In the letter, Mau noted that the ordinance would attempt to stop officers from using the smell of marijuana as probable cause.
“It is inconsistent with state and federal law for an ordinance to declare that the odor of marijuana may never be used as probable cause for a search or seizure when, as a matter of law, there are certainly times when the odor of marijuana constitutes probable cause under state or federal law,” Mau said in the letter. “The determination of probable cause is to be made on a case-by-case basis by the judicial branch.”
The ordinance went into effect on November 17 and covers possession of up to four ounces, but doesn’t cover THC oil and only applies to the San Marcos Police Department.
Mau said in the email to MySA that the local government code and the Texas constitution appear to prohibit an ordinance like the one that got passed.
“The attorney general cannot overturn the referendum, nor am I asking him to, but an opinion as to whether the ordinance is enforceable may be helpful to the city moving forward,” Mau said in the email to MySA.
I think this is a slightly different case than what we saw in three other cities that passed similar referenda only to see their City Councils pass laws modifying or nullifying them. If this is a valid concern, then it makes sense to seek an opinion rather than let the situation play out and deal with the inevitable lawsuits later. I presume that if the AG opinion aligns with this concern, then San Marcos’ city council will have a decision to make about that ordinance. I’ll keep an eye on this, because the likelihood that there will be more of these referenda passed by voters around the state is very high, and the same question would apply in those places as well. Reform Austin has more.