Voters in five Texas cities approved decriminalizing marijuana. Now city officials are standing in the way.

Newly planted marijuana plants at Texas Original Compassionate Cultivation Medical Marijuana facility in South Austin in 2021. Last month, residents in Denton, San Marcos, Killeen, Elgin and Harker Heights overwhelmingly approved ballot measures decriminalizing marijuana, but now some city officials are saying that this issue should be decided at the state level. (Credit: Jordan Vonderhaar for The Texas Tribune)

The fight in several Texas cities to decriminalize marijuana has entered a new phase, as some city leaders have rebuffed voter-approved rules that largely end criminal enforcement against having small amounts of the substance.

Last month, residents in Denton, San Marcos, Killeen, Elgin and Harker Heights overwhelmingly approved ballot measures that sought to ban arrests and citations for carrying less than 4 ounces of marijuana in most instances. They also approved new rules blocking cities from funding THC concentration tests, plus removing marijuana smell as a probable cause for search and seizure in most cases.

Winning over voters was just half the battle.

Since then, organizers behind the ballot questions in some cities have clashed with their city and county leaders who are tasked with putting the new laws in place, as well as law enforcement. Those officials have said the effort violates state law and hinders police officers.

The battle has been the toughest in Harker Heights, a town of 33,000 about 55 miles southwest of Waco. Despite the proposition winning more than 60% of the votes, the City Council decided to repeal the ordinance just two weeks later. City Manager David Mitchell said in a subsequent letter that the decision to decriminalize should be left to the state.

Brian and Alexandra Burt pose for a portrait during a signature-gathering event in Harker Heights on Dec. 3, 2022. They signed the petition pushing back against the City Council’s repeal decision to emphasize the importance of their votes and the disproportionate impact of marijuana enforcement on communities of color. (Credit: Azul Sordo/The Texas Tribune)

Ground Game Texas Executive Director Julie Oliver poses for a portrait during a signature-gathering event in Harker Heights, Texas on Dec. 3, 2022. (Credit: Azul Sordo/The Texas Tribune)

For Harker Heights residents who supported decriminalizing marijuana, the repeal is a stinging show of disrespect for their exercise of democracy.

“I don’t do any kind of drugs nor does my wife, but we’re here for the vote,” said Brian Burt, who casted his ballot for the proposition.

“A vote is a vote,” Alexandra Burt chimed in. “We are also aware that minorities disproportionately take the brunt of the law, so it is time for that proposition to go through.”

To force the City Council’s hand, the Burts and hundreds of other residents backed a new petition by Ground Game Texas, a progressive group that co-led the decriminalization campaign, to put the council’s decision to repeal on the May ballot and revive the ordinance in the meantime.

Julie Oliver, the group’s executive director, said the council’s decision to revoke a popular choice by voters has backfired.

“Shutting down someone’s vote is ill-advised, so this has really brought the community together,” she said.

Organizers across the state facing similar pushback also say they would prefer the Texas Legislature to pass laws that would decriminalize or even legalize marijuana — though they acknowledge how unlikely that is given the state’s conservative power structure.

“We can all see the way that this country is heading, state by state, but it looks like Texas is going to be one of the last,” said Deb Armintor, a Decriminalize Denton organizer and a former City Council member who championed decriminalization during her two terms. “There’s no point in cities waiting.”

A town-by-town fight

The crux of the fight can be traced back to the state’s legalization of hemp in 2019. While hemp is legal and marijuana is not, they are virtually indistinguishable by sight or smell. The only way to determine if a substance has more or less than 0.3% of THC concentration — the legal threshold that separates the two — is to run lab tests. Without the resources to meet this requirement, many prosecutors across the state have dropped and delayed low-level marijuana possession cases, and some police departments like Austin’s have followed suit by creating a policy to not cite or arrest people in most cases.

This gave organizers an opening. In May 2022, Ground Game Texas won its first case as Austinites voted by 85% to codify their police department’s policy and officially decriminalize.

“That’s the core of our reform movement,” said Mike Siegel, the group’s political director.

Several cities and towns have since followed. Elgin, a city of about 10,500 people that sits just east of Austin, voted to decriminalize by almost 75%. Its council has made the least amount of noise in putting the ordinance in place.

A sign promoting marijuana decriminalization is posted outside of a signature-gathering event hosted by Ground Game Texas in Harker Heights on Dec. 3, 2022. (Credit: Azul Sordo/The Texas Tribune)

Other city and county officials, however, have raised concerns about a statute from the Texas Local Government Code that says municipal bodies like city councils and police departments “may not adopt a policy under which the entity will not fully enforce laws relating to drugs.”

Last month, Republican Bell County District Attorney Henry Garza cited it when asking the police chief of Killeen, where close to 70% of voters favored decriminalization, to reverse his order telling officers to follow the vote. Following a pause, Killeen City Council approved the ordinance on Dec. 6 after removing the section banning officers from using marijuana smell as probable cause for search and seizure.

“The amendment was not preferable but now our residents do not have to fear an arrest that will affect their employment opportunities, education opportunities and housing opportunities,” said Louie Minor, a Bell County commissioner-elect who worked on both the Killeen and Harker Heights campaigns.

More recently, Republican Hays County Criminal District Attorney Wes Mau requested an attorney general opinion about the ordinance’s enforceability over similar questions. Mano Amiga — the group co-leading the effort in San Marcos — immediately pushed back, as voters had passed the proposition by almost 82% and the City Council already approved it in November.

Mau said he has “no plans to file a lawsuit” in his last month of office. His Democratic successor Kelly Higgins supports decriminalization.

“The Attorney General cannot overturn the referendum, nor am I asking him to,” Mau said in a statement to The Texas Tribune. “But an opinion as to whether the ordinance is enforceable may be helpful to the City moving forward.”

In the North Texas suburb of Denton, where voters approved decriminalization by more than 70%, the City Council has also certified the initiative, thus enacting the ordinance. But organizers worry about its enforcement because City Manager Sara Hensley has opposed implementing parts of it due to similar issues. Organizers responded in November with a memo arguing that Hensley doesn’t have policymaking authority and that the city has discretion to enact policies conserving scarce resources.

Apartments and businesses near the University of North Texas campus in Denton on May 8, 2020. (Credit: Ben Torres for The Texas Tribune)

City Council member Brian Beck then pitched adopting an identical proposition through the council to resolve any confusion on the ordinance’s budget power. He didn’t win over enough of his colleagues.

Decriminalize Denton is now considering next steps, including recalling those who voted against Beck’s proposition.

Council members who didn’t approve the pitch — including Mayor Gerard Hudspeth and council members Jesse Davis and Chris Watts — reiterated that the same ordinance is already on the books and pointed to the limits imposed by state law.

“The will of the voters must be respected absolutely. But the voters of Denton don’t have the ability to change or circumvent State law,” Davis said in a statement.

Organizers and city officials who support decriminalization, such as Denton City Council member Brandon Chase McGee, pointed to places like Austin as a guide.

“Similar ordinances have been passed in other municipalities all over this state, and to my knowledge, those ordinances have not faced any legal challenges,” McGee said in a statement.

But some city leaders like Davis worry about potential retribution from state lawmakers who don’t agree with decriminalization. Legislators have pushed back on other policies they don’t like — for example, approving a bill in 2021 that penalizes cities for cutting police budgets, according to Katharine Neill Harris, a drug policy fellow at Rice University’s Baker Institute.

But Neill Harris also noted that the Austin Police Department has essentially decriminalized since 2020 and then fully followed the ordinance that codified its policy over the past seven months without issues. APD communications manager Brandon Jones told the Tribune that “conversations with both the District Attorney’s Office and County Attorney’s Office were crucial in ensuring we were all on the same page.”

The big picture

Organizers said these different responses from officials spotlight the need for legislators to pass statewide marijuana updates.

“It needs to be a legislative change at the state level. It needs to be broadened out,” said Shirley Fleming, a former Killeen City Council member who helps lead the initiatives in Bell County.

And most Texans want legal marijuana, which goes further than decriminalization. Texas lags behind big states such as California and Illinois and conservative states such as Alaska and Montana, as previous efforts to change state laws have faced opposition from top Republicans.

Shirley Fleming, a former Killeen City Council member who helps lead marijuana decriminalization initiatives in Bell County, attended the signature-gathering event in Harker Heights on Dec. 3, 2022. (Credit: Azul Sordo/The Texas Tribune)

And because the Legislature controls what gets on the statewide ballot, Texans haven’t been able to directly vote on it as voters have in Maryland and Missouri.

Currently, 21 states and Washington, D.C., have legalized recreational marijuana.

Texas still considers marijuana illegal despite accepting hemp and derivatives like CBD. Texas also allows for medical cannabis, but its program applies to a very limited subset of medical disorders and allows only for 1% of delta-9 THC by weight. So far, the program has enrolled just a tiny fraction of the eligible population.

“We continue to have one of the most restrictive medical programs across the United States,” said Neill Harris, the drug policy expert.

She added that claims about marijuana reforms leading to more crimes are not supported by evidence. The Centers for Disease Control and Prevention also says “there is limited evidence suggesting that using marijuana increases the risk of using other drugs.”

Amid this legislative lag, decriminalization organizers said Black Texans and other communities of color are facing disproportionate levels of marijuana enforcement and the resulting impact on their records. And this is still happening following hemp legalization, which contributed to the state’s number of marijuana possession arrests plummeting from the recent peak of almost 74,000 arrests in 2010 to under 23,000 arrests in 2021.

This issue is reflected in records requests obtained by local organizers in 2021 and reviewed by the Tribune. About 35% of arrests made by Denton police in 2019 and 2020 involved Black individuals, records showed, although the city’s Black population is just over 11%. And around 75% of arrests made by Killeen police between 2019 and early May 2021 involved Black individuals, records indicated, but only 39% of the city’s residents are Black.

“Police need to concentrate on more important things rather than trying to stop Black and brown people with low-level marijuana,” Fleming said.

Some state legislators agree with the message sent by these cities’ vote to decriminalize.

“That’s what happens when we drag our feet at the state on policies that the majority of the state agrees with,” said state Rep. Joe Moody, D-El Paso.

Moody himself has long advocated for marijuana reform. For the upcoming legislative session, for which there are already several bills seeking to ease marijuana laws, Moody pitched House Bill 218 to reduce the penalty for possessing 1 ounce of marijuana and allow for records expungement in certain cases. His similar bill from 2019 received bipartisan support in the House, but it died in the Senate under Lt. Gov. Dan Patrick, who has long opposed easing marijuana laws. Still, Moody is feeling optimistic.

And given the current Republican control, moderate bills like his are the most promising, according to experts.

In the meantime, organizers say they will continue to break new ground across the state.

Since October, there has been a campaign underway in San Antonio to put a question — which proposes decriminalizing marijuana and abortion, as well as banning no-knock warrants and chokeholds by police — in front of voters in May. Ground Game Texas and local organizers are seeking 35,000 signatures by early January to meet the required 20,000 verified signatures.

The campaign has so far reached over 75% of its goal.

“Folks are excited and engaged to vote for something that’s more than a politician,” said Ananda Tomas, executive director of Act 4 SA, which focuses on police reform.

The resistance from local officials has already started. The San Antonio Police Officers’ Association took out a full-page newspaper ad last month to criticize the effort. Its president, Danny Diaz, said in a statement that the association wanted to signal to voters that “some things are too good to be true,” noting that the proposed total ban on chokeholds would hinder officers.

The city has already prohibited chokeholds except in life-or-death situations, though it isn’t yet codified and could be changed under different leadership.

And despite these pushbacks, local organizers and Ground Game Texas are holding firm on their organizing efforts to decriminalize via citywide ballots — and engage voters by extension.

“It’s so incredibly popular and it’s going to get people out to vote,” Oliver said. “That’s what we need in our state.”

Disclosure: Rice University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Clarification, Dec. 16, 2022: This article was updated to clarify the legal amount of delta-9 THC under Texas' medical marijuana law is 1% of delta-9 THC by weight.