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Attorney General Ken Paxton is suing Austin over its pot laws. So what are they?

Texas has been slow to legalize pot. Cities are trying to decriminalize it. Paxton says they can’t.

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Julia Reihs | KUT
Austinites voted to decriminalize small amounts of marijuana in May 2022.

Austin is one of a handful of cities getting sued by the Texas attorney general over policies that effectively decriminalize small amounts of marijuana. The ordinance has been in effect for years now and, arguably, has changed how police prioritize patrols.

Texas Attorney General Ken Paxton says these policies violate state law. But the federal, state and local rules surrounding pot possession have been confusing and conflicting over the last few years.

While Austin’s not unfamiliar with needling from the state’s GOP leaders, the lawsuit has led to confusion. Here’s a breakdown on Austin’s policy – and a look at what could happen next.

How did we get here?

Four years ago, city leaders vowed to stop arresting people for low-level pot possession. The effort was led by then-Council Member Greg Casar, who argued the charges more often affected low-income Austinites, particularly those of color.

“It’s what the majority of Austinites, I think, believe is the right thing to do,” Casar said at a news conference before a January 2020 City Council vote on the policy. “And my hope is that we have strong support … [that] low-level marijuana enforcement should just not be one of the high priorities of the city."

APD’s enforcement policies at the time had been murky, because of conflicting federal, state and local rules on marijuana and hemp.

Texas passed a law legalizing hemp in 2019. After that, then-Travis County District Attorney Margaret Moore said her office wouldn’t prosecute low-level pot cases. Moore and other Texas DAs argued they didn’t have the testing equipment to tell the difference between hemp and marijuana.

Despite Moore’s decision, APD kept citing and arresting people for possession of marijuana. In response, Casar and other Austin City Council members decided to pass a formal resolution to decriminalize low-level pot possession. Again, APD kept enforcing state law, so progressive-leaning nonprofit Ground Game Texas decided to get a measure on the May 2022 ballot.

While the election drew only 11% of registered voters, Austinites overwhelmingly OK’d the plan to decriminalize possession of 4 ounces or less of marijuana and no-knock warrants.

Austin’s decision emboldened other cities to follow suit.

Now, Republican Attorney General Ken Paxton is suing Austin, along with Denton, Killeen, San Marcos and Elgin. The attorney general says the policies violate state law and that cities can't pick and choose which laws they enforce.

So what did Austin’s policy do?

Basically, the city decriminalized pot. If a police officer stops someone with 4 ounces or less of marijuana, they’re often not going to make an arrest — though, the city’s policy does allow for arrests if someone is connected with or suspected of a violent crime or felony.

Michael Bullock, president of the Austin Police Association, says the political back-and-forth over the years has consistently put APD officers in a tough spot.

“They’re told your job is to enforce the law and the state tells them this is what you’re going to do,” Bullock said. “But then the city, who is their employer, says — ‘No, you’re actually going to do this.’"

But Bullock also argued those low-level pot charges were, as he put it, kind of a nuisance — busywork that detracted from better addressing more serious offenses.

“If low levels of marijuana were to be decriminalized in some cases, it would make our job easier,” he said. “Our biggest thing is making sure that when it is tied to something else that we still have the ability to enforce those [laws]... because that’s where we have concerns and that’s where we have problems.”

The policy has allowed police to address more serious offenses. Court data from the state show that pot-possession charges have dropped 83% from 2019 to December. Meanwhile, family violence and assault cases in Travis County have increased 76% in the same timeframe.

What’s next?

Neither APD or the City of Austin would comment on Paxton's lawsuit.

Historically, Travis County courts have sided with Austin in city-versus-state disputes like these. That’s been the case in lawsuits over mask mandates, COVID-era curfews, a plastic bag ban and the city’s paid sick-leave policies. But the policies have been ultimately overturned or thrown out by the all-Republican Texas Supreme Court.

While the case proceeds, there’s still the possibility of legalizing pot statewide — a prospect that could net the state hundreds of millions of dollars in tax revenues.

Texas has been slow to change its marijuana laws. The vast majority of U.S. states have legalized medicinal marijuana and nearly half have legalized its recreational use. While the state has expanded legalization of medical marijuana, it’s dragged its heels on legalizing recreational use, despite broad support among voters of all stripes. A report from the Hobby School of Public Affairs last year found the vast majority supported legalizing pot, with two-thirds supporting recreational legalization and 81% supporting medical legalization.

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