Texas Cities Want to Decriminalize Marijuana, But Are Meeting Resistance at Every Turn

Folks tend to think of laws as specific to the federal government or to their states’ governments. The fact is, just about every city in Texas has its own set of ordinances and regulations about what you can and cannot do. For the most part, these ordinances fall within the greater context of the laws, like creating a citation for jaywalking or for using a cell phone while you drive. Sometimes, however, they test boundaries.

One of those boundaries is the decriminalization of marijuana. The latest battle is in Lubbock, but it’s not the only one; it’s not even the first one. Killeen and Harker Heights have also “overwhelmingly approved ballot measures that sought to ban arrests and citations for carrying less than 4 ounces of marijuana in most instances.” There have also been measures in cities like Killeen to ensure that the smell of marijuana is not enough to trigger a search.

It would seem that, on the whole, a lot of folks in Texas support more leniency when it comes to weed. A poll taken in February of 2023 showed that most folks support reducing penalties and loosening our strict laws. In December 2022, a poll showed that 55% of Texans overall supported some level of legalization for recreational marijuana use, too.

And so, the question remains: if so many people in Texas think that weed should be legal, or at the very least decriminalized, why is possession of marijuana still a crime?

One: City leadership is at odds with its people

The answer to why possession is a complex one. In some cases, it comes back to cities refusing to follow through with ballot initiative. For example, when Harker Heights approved decriminalization via a ballot, the city’s leaders repealed the ordinance, the Texas Tribune reports, because “City Manager David Mitchell said in a subsequent letter that the decision to decriminalize should be left to the state.”

This might present a challenge for other cities. Even if they manage to pass the ballot, it does not mean their leadership will change any ordinances.

Two: State law preempts local ordinances

Let’s say a city IS successful, and a ballot measure decriminalizing marijuana passes. The city’s council members follow through and decriminalize the possession of small amounts of marijuana.

And then, say a driver is pulled over by a member of the Texas Highway Patrol on a stretch of U.S. 190, and that officer smells marijuana in the car. Texas state law, which says marijuana possession in any amount is illegal, governs interstate highways. In such a case, the driver may still be subjected to a legal stop and search and be charged with possession even though he or she is within city limits.

Three: The federal government considers marijuana a Schedule I substance

Much like state law preempts local ordinances, federal law preempts state law – and under federal law, marijuana is still classified as a Schedule I substance. While “the feds” are unlikely to get involved in a possession case, you may find yourself in trouble if you are caught on federal lands, like Fort Cav.

Can’t Texas just legalize or decriminalize marijuana possession or use?

It could. Governor Abbot, per the Texas Tribune, has “expressed openness to reducing the penalty for possession of small amounts of marijuana — 2 ounces or less — from a class B misdemeanor to a class C misdemeanor.” However, that bill has not come across his desk to sign.

The most recent bill he did sign, per the Houston Chronicle, was House Bill 17; this new law “bars district attorneys from setting blanket policies declining to prosecute entire classes of crime,” including low-level offenses like marijuana possession. As the Governor explained, “The role of a district attorney is to enforce the law, not make it. If they want to make state policy, they should run for the state Legislature rather than district attorney.”

In other words, possession of marijuana remains a crime in Texas, no matter what the District Attorneys want. And there is every chance that Texas won’t make any changes until the U.S. government does.

What happens if I am caught with marijuana in a place with a decriminalization ordinance?

Truthfully, it depends on who “catches” you, and the circumstances of the case. In Killeen, for example, Prop A** generally prohibits you from being arrested if you possess a small amount of marijuana (under four ounces), but the drug is still illegal. That means you can still be arrested and charged with a crime for driving under the influence of the drug, or potentially for possessing any amount of marijuana in a school zone, by Killeen’s police force. You can also be arrested for possession if it is part of an “investigation of a ‘felony-level narcotics case that has been designated as a high priority,’” per the Killeen Daily Herald.

If you are caught in possession of marijuana by a Texas or U.S. law enforcement officer, however, you will likely be arrested no matter how much pot you possess.

**As of this writing, the City of Killeen and the grassroots organization Ground Game Texas are still locked in a lengthy court battle with Bell County, which has sued to have Prop A overturned for non-compliance with Texas law.

Can your Killeen defense lawyers help me with a possession of marijuana charge?

At Mary Beth Harrell Criminal Defense and DWI Lawyers, we have successfully represented folks who were charged with marijuana possession – and we want to help you, too. We tailor our defense strategies to your specific case, because we understand that every client’s needs are different. A young person seeking to start a career in the military or a person with a professional license may face greater consequences for a drug possession charge than a first-time offender who works in, say, the tech sector. We also know that folks who have a criminal record may face more severe penalties for a repeat offense, or if sobriety is part of their plea deal.

Our Killeen marijuana defense attorneys are smart, tough, and fighting for you at every step. We will strive to have your charges dropped or dismissed from the start, but if this is not feasible, we will fight for the best possible outcome for you. That may mean pre-trial diversion, a treatment program, or deferred adjudication as part of a plea deal. We promise to take the entirety of your needs and story into account as we craft a strategy just for you, and to keep you informed as your case progresses.

Possession of marijuana is a serious charge, and it can have serious consequences. Don’t take on a law enforcement agency on your own. Call or contact Mary Beth Harrell Criminal Defense and DWI Lawyers to schedule a consultation with a Killen defense attorney. We have an additional office in Copperas Cove, and proudly serve Coryell, Bell, Williamson, and McLennan Counties, as well as Temple, Harker Heights, Waco, and Belton.