Recall, referendum options
“We, as an organization that I’m associated with, Ground Game, have already talked about some of the things we can do if this, in fact, happens,” said Louie Minor, a Killeen politician and Army veteran who helped lead the charge to get the city marijuana law approved by voters. “I’ve mentioned before there’s the recall petition and referendum. Say Harker Heights repeals it. We can make a referendum and put it back into ordinance. So those are options.”
Minor, with Ground Game Texas co-founder Julie Oliver, led efforts Killeen and Harker Heights to craft initiative ordinances making it unlawful for police officers in those jurisdiction to make arrests or citations for possession of marijuana — up to four ounces — and creating other prohibitions. It passed by wide margins in both cities.
But since the Nov. 8 election in which voters in Denton, San Marcos and Elgin also approved similar propositions, Bell County District Attorney Henry Garza has asked Killeen Police Chief Charles Kimble to rescind his “special order 22-07” to officers. Kimble’s order essentially put the new ordinance in effect on Nov. 10, two days after the election and before the Killeen City Council canvases the votes to certify the election, which the council is scheduled to do at a meeting Tuesday.
“No arrests will be made for misdemeanor possession of marijuana,” according to Kimble’s order. “In lieu of a marijuana arrest, officers will not arrest for possession of drug paraphernalia or drug residue.”
Furthermore, consistent with the initiative ordinance that led to the approval of Proposition A on Nov. 8, “city funds and city employees are prohibited from requesting, conducting or obtaining testing for THC. The order of marijuana or hemp shall not be considered for probable cause for any search or seizure.”
Garza sent his letter to Kimble on Nov. 14.
‘Expect to visit’
“In that order, you instruct your employees, among other things, not to make arrests for the possession of misdemeanor amounts of marijuana nor to consider the odor of marijuana or hemp as probable cause for any search and seizure,” Garza wrote. “I am writing to respectfully request that you rescind this order.”
A day later, Garza confirmed he sent the letter to Kimble.
“Myself and the county attorney Jim Nichols have both signed a letter to Chief Kimble requesting him to reconsider a general order that he has signed,” Garza said in an email. “We expect to visit with the chief once he has had an opportunity to review the information that has been provided to him.”
Minor, who was elected to the Bell County Commission earlier this month, called Garza’s opinion “worthless” and said on Thursday that Ground Game is watching how Killeen officials respond.
“Ultimately, with city elections coming up, I think it’s going to be a political thing,” he said. “It’s very obvious that in Harker Heights and Killeen is broad support from Republicans, Democrats and independents. That’s what our elected officials are going to have to answer to — the electorate — if they go against the will of the voters.”
After canvassing the election results at the City Council’s special meeting Tuesday, the council members are scheduled to “consider options regarding Proposition A and the initiative ordinance to eliminate low-level marijuana enforcement, and discuss any council member concerns about Proposition A.”
The Harker Heights City Council canvassed its results on Nov. 15.
Canvassing the votes “really codifies the election results,” Minor said. “A judge is the only one who can void that ordinance.”
Meanwhile, Killeen’s neighboring city may face a protracted legal fight between residents and the City Council if it decides to repeal the ordinance.
“I’ve been talking to a lot of residents in Harker Heights,” said marijuana law supporter Shirley Fleming, a longtime Killeen resident. “They are fired up. They are saying their voice has been disrespected. If they reject this in Harker Heights and Killeen … I am not going to allow the City Council to disrespect the constituents.”
A Democrat, Minor defeated Chris Bray, a Republican, for Precinct 4 Bell County commissioner on Nov. 8.
“They are terrible even trying to push Chief Kimble to rescind that (order),” Fleming said. “That is stupid. It’s not even worth talking about.”
Assistant City Manager Jerry Bark said the Harker Heights City Council will consider amending or repealing the ordinance the passage of Proposition A created.
“The charter of the city provides that the ordinance, once effective, can be treated as any other ordinance and can be repealed if the council chooses to do so,” he said. “The city staff, after consultation with the city attorney, believes that the initiative ordinance is inconsistent with the state constitution. Because of this, it will be our recommendation to the City Council to fully repeal the ordinance.”
However, he said, “the city takes no position on the issue of the legalization of marijuana. The state of Texas sets these laws and if the public desires changes to these laws, then the state Legislature is the appropriate venue to seek those changes.”
While opponents argue that Proposition A contradicts state law, Minor said they’re wrong.
“Nowhere in state law does it say you have to arrest someone or you have to make an arrest,” he said. “There’s officer discretion. Just like when you get pulled over for speeding or not wearing a seat belt, the law doesn’t state you have to write a ticket or make an arrest. Part of that discretion is cities making decisions on where to spend money on enforcement of laws. That is what this is about.”
“People are saying they came out in the rain and cold to cast their votes for Proposition A, and now they’re not going to honor it — in Harker Heights, especially?” Fleming said. “I’m not playing with these council people. They have to be accountable. I’m not happy at all about this. We worked too hard to let them stomp all over people. I’m not rolling over for this.”
The Killeen ordinance
Under Proposition A, “Killeen police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses, except in the limited circumstances.”
Kimble’s order specifies that his instructions “do not apply in instances where a felony-level narcotics case has been designated a high priority investigation by a captain or above and/or the investigation of a violent felony.”
But Garza challenged Kimble’s order on the premise that Proposition A is a contradiction to Texas law.
“First, Proposition A, and your general order implementing it, contravene Section 370.003 of the Texas Local Government Code,” Garza wrote. “That statute could not be clearer and is worth quoting in full:
‘The governing body of a municipality, the commissioners court of a county, or a sheriff, municipal police department, municipal attorney, county attorney, district attorney, or criminal district attorney may not adopt a policy under which the entity will not fully enforce laws relating to drugs, including Chapter 481 and 483, Health and Safety Code, and federal law.’”
Garza also calls Proposition A “void” because neither that measure nor Kimble’s order are lawful because they “are contrary to the express will of the Legislature.”
Minor challenged that assertion.
“That doesn’t break the law,” he said. “There’s no law saying you have to 100% arrest everyone who has a joint in their pocket. Show me in the law that says you have to. If you’re familiar with laws, if it says, ‘Shall,’ there’s no choice. There’s no ambiguity.”
And the electorate — not Garza — have the final say, Minor said.
“Attorneys are working overtime on both sides,” he said. “DAs are getting their fingers in the pot as well. The electorate is the most powerful entity we have, and they support this. I will support recalls if that’s what the citizens want. Seventy percent of the people voted for this.”
‘Conflict of law issues’
Richard Cheng, an adjunct professor at the University of North Texas-Dallas College of Law, said that what opponents of decriminalization are looking at are “conflict of law issues.”
“It’s how the Texas Health and Safety Code defines the possession of marijuana,” he said. “Specifically, it says it’s an offense if a person knowingly or intentionally possesses a usable quantity of marijuana. Then, it defines the weight and determines what the ultimate punishment is. If it’s more than four ounces but less than five pounds, that is a Class A misdemeanor.”
And that offense carries a sentence of up to a year in jail and a $4,000 fine, Cheng said.
“But what this particular city ordinance is saying is that they shall not issue a citation or make an arrest for it. One is an enforcement issue, and one is a state-law issue. This particular ordinance is not overriding the definition of a Class A or Class B misdemeanor.”
Furthermore, Cheng said, Proposition A does not legalize marijuana possession in Killeen.
“As I read it on its face, it’s more of an enforcement case,” he said. “It hasn’t made it legal.”
Cheng is a member attorney at Weaver Johnston Nelson in Dallas and teaches cannabis laws at UNT-Dallas. He also hosts a podcast, “The Sativa Segment,” about cannabis laws.
‘Can do three things’
Like in Harker Heights, amending or repealing the ordinance is a possibility Killeen Mayor Debbie Nash-King floated on Nov. 10 during a Public Policy Council luncheon hosted by the Greater Killeen Chamber of Commerce at Grace Christian Center. It was in response to a question from someone in the audience about allowing Proposition A to stand .
“We can do three things,” she said. “We can leave it as is, we can adopt it with amendments or we can repeal it.”
City Attorney Holli Clements said the council must first canvass the election votes before it decides what to do about the ordinance.
“The City Council will canvass the election results as required by law on (Nov 22),” she said. “I anticipate that City Council may discuss the ordinance itself on a future date.”
In unofficial results, 16,845 Killeen residents (69.4%) cast their ballots for Proposition A, according to Bell County election officials. At 30.5%, 7,411 voted against it.
In Harker Heights, 5,208 residents (64%) cast their ballots for Proposition A. At 35.9%, 2,927 voted against it.
Proposition A provides a penalty clause for Killeen police officers who violate the ordinance. City Manager Kent Cagle has not responded to requests for comment on Proposition A, Kimble’s order and Garza’s letter. The Herald has submitted a Texas Public Information Act request seeking emails and other communications between the three men regarding the order and letter.
In Denton, home to the University of North Texas and Texas Woman’s University, City Manager Sara Hensley sent a Nov. 9 letter to Mayor Gerard Hudspeth and council members providing her opinion on Proposition B.
“Chapter 370.003 of the Texas Local Government Code prohibits the City Council and Police Department from adopting a policy that does not fully enforce state and federal laws relating to drugs, including marijuana,” she wrote. “While Proposition B imposes explicit prohibitions on the Denton Police Department’s ability to enforce laws related to low-level marijuana possession, those prohibitions are in direct conflict with, and are superseded by, the Texas Code of Criminal Procedure, which vests police officers with the authority and duty to enforce state law, including the ability to use the smell of marijuana as probable cause to conduct a search or seizure, the right to make an arrest, and where appropriate, the right to issue a citation for the possession of marijuana or drug paraphernalia, regardless of the quantity of marijuana.”
Proposition B is identical to Proposition A in Killeen.
“In short, the city does not have the authority to implement some provisions of Proposition B without changes to current drug laws by Congress and the Texas Legislature,” Hensley wrote. “In practice, a Denton police officer will continue to have the authority to enforce state laws relating to marijuana. Neither the city, the city manager, nor the chief of police has the authority to direct officers to do otherwise or to discipline an officer when they are acting in accordance with state law.”
Ground Game intervention
That prompted a response from Mike Siegel, general counsel for Ground Game Texas.
“The Texas Constitution … allows for Texas cities to adopt ‘home rule’ charters,” he wrote. “Under those charters, cities ‘possess the power of self-government’ and may exercise ‘broad discretionary powers.’ At the same time, cities are not permitted to adopt any law that is ‘inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature.’”
That’s an argument Oliver has made in appearances before the Killeen City Council during discussions about the legal consequences of adopting Proposition A as ordinance. She did not return an email seeking comment.
Consistent with Denton’s home-rule charter, “the electors shall have the power to propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes, and to adopt or reject the proposed ordinance at the polls, such power being known as the initiative,’” Siegel wrote.
In the letter, Siegel also told Hensley that she “may not usurp the initiative power of Denton voters.”
“Under the Denton city charter, there are only two policy-makers — the city council and the people,” Siegel wrote. “The division of authority is perfectly clear: the City Council creates policy and the city manager is required to execute it. When the people of Denton adopt policy via a citizen initiative, they stand in the place of the council and exercise the policy-making authority of the city.”
Therefore, Siegel said, Hensley must “execute voter-initiated ordinances.”
On Denton’s website, a page is dedicated to what Proposition B means — or doesn’t mean — for residents.
“Prior to the passage of Proposition B, the City of Denton Police Department already significantly revised its marijuana enforcement policy and practices which are enumerated in its general orders,” the website shows. “Between June 2021 and July 2022, of the 65 arrests that the Denton Police Department made for marijuana possession under 4 ounces, 15 of these charges accompanied other charges unrelated to marijuana, and weapons were involved in 31.”
‘Not been a priority’
Denton Police Chief Doug Shoemaker included a statement on the page about Proposition B, calling the Denton Police Department “a forward-thinking agency.”
“Marijuana possession alone has not been a priority for the Denton Police Department for several years,” he said. “This will continue to be the case. With that said, officers must maintain discretion to be able to keep our community safe from harm. When marijuana possession pairs with other crimes that affect public safety, including offenses such as driving while intoxicated or firearms violations, such acts cannot and will not be ignored.”
Still, Siegel said in his letter to Denton officials, police officers are not contradicting state law by enforcing Proposition B.
“The city of Denton may exercise its discretion to adopt policies to conserve scarce public safety resources, including Proposition B, which stops the wasteful enforcement of low-level marijuana offenses. Proposition B can be easily defended as a valid exercise of its police power that promotes the health, safety, and general welfare of Denton residents.”
Texas Municipal League officials did not respond to the Herald’s request for comment about how different cities are handling marijuana ordinances differently. But in Siegel’s letter, he reminded Denton council members, the mayor and Hensley that Austin voters in May approved a similar proposition that has not been challenged legally.
‘Obligated to enforce’
“No city has ever been subject to challenge under Section 370.003, including the city of Austin, which on May 7, 2022, adopted a city ordinance that includes marijuana decriminalization. The city manager should not engage in unwarranted speculation concerning possible future legal challenges to justify non-enforcement of any aspect of Proposition B. Until a court of competent jurisdiction orders otherwise, the city manager is obligated to enforce Prop B.”
Austin officials have not returned messages seeking comment on its marijuana ordinance, known as the Austin Freedom Act.
San Marcos officials will enforce Proposition A, city spokeswoman Tatiana Salazar told the Herald.
“San Marcos voters spoke clearly regarding Proposition A, and our enforcement staff will develop the necessary processes to ensure their actions remain in compliance with the ordinance.”
Elgin officials did not return a message seeking comment about whether they plan to enforce that city’s marijuana ordinance.