Texas Court Sides With State To Block Voter-Approved Marijuana Decriminalization Law In San Marcos
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A Texas appellate court has sided with the state in its lawsuit challenging the city of San Marcus over the implementation of a local marijuana decriminalization law approved by voters.
On Thursday, the state Fifteenth Court of Appeals overturned a lower court ruling that denied a temporary injunction to prevent the law from being enforced, effectively invalidating the cannabis reform measure approved by 81 percent of voters in 2022.
This marks a setback for activists who’ve led the charge to enact local marijuana policy changes through the ballot, many of which have been contested by Texas Attorney General Ken Paxton (R).
The appellate court determined that a trial court that upheld the city law “abused its discretion” when it denied certain requests from the state asserting a constitutional right to preempt the city government. And specifically, it said state statute “prohibits local governments from putting up any barrier to the full enforcement of drug-related laws.”
“Texas law gives local governments and law enforcement officers a panoply of tools—such as the authority to issue citations and arrests—to enforce drug laws. Section 370.003 prohibits the City of San Marcos from making a policy that takes any of those tools off the table,” it said.
“No magic words were necessary for the Legislature to preempt the Ordinance with unmistakable clarity,” the court continued. “A plain and fair reading of the Ordinance presents irreconcilable inconsistency with Section 370.003.”
San Marcos was one of five cities during the November 2022 election where voters approved similar decriminalization initiatives after advocates with Ground Game Texas and Mano Amiga Action secured ballot placement.
The ordinance made it so police could not issue citations or make arrests for class A and B misdemeanor marijuana possession offenses, with limited exceptions such as if the violation connected to an investigation into a felony-level narcotics case.
The measure also said police couldn’t issue citations for residue or paraphernalia in lieu of a possession charge. And they couldn’t use the odor of cannabis alone as probable cause for a search or seizure.
Catina Voellinger, executive director of Ground Game Texas, called the latest ruling in the San Marcos case a “deeply troubling move for local democracy.”
“Texans have made their voices heard at the ballot box again and again: they don’t want their money going towards unnecessary arrests,” she said. “This ruling is proof that the state isn’t working to make communities safer—it’s working to crush people-powered movements.”
The city of San Marcos itself said in a statement that it is “reviewing the opinion issued by the Fifteenth Court of Appeals, which remanded the case back to the trial court to enter a temporary injunction against enforcement of the ordinance.”
“The City cannot enforce the ordinance pending a trial on the merits,” it said. “The San Marcos City Council is expected to meet in an upcoming executive session to receive legal advice and provide direction for moving forward. We have no additional information to provide at this time.”
Meanwhile, despite ongoing litigation related to past decriminalization ordinances, Texas activists have their targets set on yet another city, Kyle, where they hope put an initiative before voters to enact local marijuana reform at the ballot this coming November.
Despite the state’s resistance and the latest development in San Marcos, advocates have seen several courts rule in their favor amid the legal challenges.
For example, in February, a Texas judge has ruled that a cannabis decriminalization law approved by Dallas voters last year can continue to be implemented—denying a request from the state attorney general that sought to temporarily block the reform as a lawsuit proceeds.
This doesn’t mean the lawsuit from Paxton is dead altogether. But, at least for the time being, the judge has determined that the decriminalization policy can continue as the litigation unfolds.
Dallas Police Department had previously instructed officers to stop arresting or citing people for possession of up to four ounces of marijuana, in accordance with the voter-approved ballot initiative.
Gov. Greg Abbott (R) has lashed out against the municipal cannabis reform efforts.
“Local communities such as towns, cities and counties, they don’t have the authority to override state law,” the governor said last May “If they want to see a different law passed, they need to work with their legislators. Let’s legislate to work to make sure that the state, as a state, will pass some of the law.”
He said it would lead to “chaos” and create an “unworkable system” for voters in individual cities to be “picking and choosing” the laws they want abide by under state statute.
Abbott has previously said that he doesn’t believe people should be in jail over marijuana possession—although he mistakenly suggested at the time that Texas had already enacted a decriminalization policy to that end.
In 2023, Ground Game released a report that looked at the impacts of the marijuana reform laws. It found that the measures will keep hundreds of people out of jail, even as they have led to blowback from law enforcement in some cities. The initiatives have also driven voter turnout by being on the ballot, the report said.
Another cannabis decriminalization measure that went before voters in San Antonio that year was overwhelmingly defeated, but that proposal also included unrelated provisions to prevent enforcement of abortion restrictions.
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Meanwhile, late last month the Texas Senate approved a bill that cannabis advocates and stakeholders said would effectively eradicate the state’s hemp industry, prohibiting consumable products derived from the plant that contain any amount of THC.
That, as well as another measure from Rep. Joe Moody (D) to decriminalize cannabis statewide, is one of the latest of nearly two dozen cannabis-related proposals filed so far in Texas for the current legislative session. Various other measures would legalize adult-use marijuana, remove criminal penalties for cannabis possession and adjust the state’s existing medical marijuana laws, among others.
Moody sponsored a similar marijuana decriminalization bill last legislative session, in 2023. That measure, HB 218, passed the House on an 87–59 vote but later died in a Senate committee.
The House had already passed earlier cannabis decriminalization proposals during the two previous legislative sessions, in 2021 and 2019. But the efforts have consistently stalled in the Senate amid opposition from the lieutenant governor.
Read the Texas appellate court’s ruling in the San Marcos marijuana decriminalization case below:
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Photo courtesy of Chris Wallis // Side Pocket Images.
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