What is The San Marcos Marijuana Ordinance and How Will The Hays County District Attorney Enforce It?


What is The San Marcos Marijuana Ordinance and What’s The History Behind it?

With Texas having some of the strictest marijuana laws in the country it may be unsurprising that the possession of under two ounces of marijuana has been the leading cause of arrest in both Hays County and the city of San Marcos since 2013, however, this is not commonplace for many of Texas’ counties. In 2019, when Greg Abbott signed House Bill 1325 into law legalizing the production, sale, and possession of hemp with less than 0.3% of THC, many prosecutors decided to drop cases involving low-level marijuana possession due to difficulties in differentiating between legal hemp and illegal marijuana. Despite this precedent, the former Hays County district attorney, Wesley Mau, remained vigilant in prosecuting low-level marijuana offenses until he recently left office in January of 2023.

This discrepancy in Hays County’s local marijuana policy has resulted in two Texas-based activist groups, Ground Game Texas and Mano Amiga, spearheading a grassroots decriminalization movement in San Marcos, the administrative center of Hays County. In June of 2022, these two groups took to the streets to gather signatures from San Marcos residents who were seeking reform due to concerns with their city’s high level of marijuana related arrests and the backed up county jail. A petition in favor of a marijuana ordinance was signed by 10,624 locals, with the city’s verification of 4,667 signatures meeting the threshold to allow the marijuana ordinance to appear on the ballot during the 2022 midterm elections.

After appearing on the 2022 ballot, the San Marcos marijuana ordinance was passed with an overwhelming 81% (15,664) of the 19,139 votes. Upon passage, as of November 17th, 2022, the marijuana ordinance bars San Marcos law enforcement from providing citations or issuing arrests of class A and B misdemeanor marijuana possession offenses. This decriminalizes drug paraphernalia and the possession of up to four ounces of cannabis, preventing arrest unless in conjunction with an investigation of a felony-level narcotics case or a violent felony. The ordinance also prohibits the use of marijuana odor as a reason for probable cause for search and seizure, which led to the former Hays County district attorney Wesley Mau questioning the legality of the ordinance on his last days of office, stating that the presence of marijuana odor constitutes probable cause under state and federal law. While Mau wrote to the Texas attorney general asking if the ordinance was enforceable, the ordinance was not overturned before he left office.

What is The Hays County District Attorney’s Stance On The San Marcos Marijuana Ordinance?

With Wesley Mau being replaced by a democrat Kelly Higgins in the 2022 midterm elections, the newly elected Hays County district attorney seems to further emphasize the support for marijuana reform within San Marcos and the county. Here’s a look at Kelly Higgin’s views regarding marijuana reform and the San Marcos marijuana ordinance:

Kelly Higgins ran his campaign for Hays County district attorney with a platform advocating for marijuana decriminalization in the entire county. Higgins believes that the prosecution of low-level marijuana offenses is fiscally irresponsible, as Hays County spends an average of $27,000 prosecuting each marijuana case, with 400 to 500 of these cases being brought up every year. Higgins agrees with the 70% of Texans who believe that marijuana should be legalized, and wants to divert the tax dollars that have historically been spent on prosecuting marijuana possession and put them into establishing a mental health court, where those suffering from mental illnesses and substance abuse issues can be provided with meaningful treatment options rather than be punished.

Higgins recognizes that it is within his rights as the Hays County district attorney to decide which cases to move forward in prosecuting. Higgins has vowed to honor the decriminalization measures enacted by San Marcos’ marijuana ordinance and plans on leading the county’s prosecution with many of the ordinance’s policies in mind. Higgins has made it unequivocally clear throughout his campaign and now during his tenure in office that he will not be prosecuting any low-level marijuana charges in Hays County.

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