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Texas Law Provides for Cities to Adopt Cite and Release Ordinances for Some Offenses

As of June 26, 7,821 offenders and 1,321 staff have tested positive for COVID-19 in Texas prisons, according to the Texas Department of Criminal Justice. The spread of the virus has led to calls for many prisoners to be released, and state prisons have halted intake from county jails for the past three months.

Concerns about the virus, however, are not the only reason many are looking to stem the number of prisoners entering the penal system. Overcrowding in prisons has long been an issue facing Texas prisons, and it factored into the legislature’s passing of HB 2391 in 2007. That bill amended the state’s criminal procedure code, giving police discretion to simply cite and release, rather than arrest, people for certain low-level crimes.

Nevertheless, the overcrowding problem has persisted and, combined with data showing police were using the discretion HB 2391 granted them to arrest people of color disproportionately for the same crimes they were simply citing white people for, it led the City of San Marcos to become the first municipality in Texas to make cite and release mandatory by ordinance for low level offenses.

Under the ordinance, police officers are required to simply cite and release people who commit the following offenses:

  • Class C misdemeanors other than public intoxication, assault, or family violence.
  • Possession of Marijuana less than 4 oz, Class A or Class B misdemeanor
  • Driving while License Invalid, Class B misdemeanor
  • Criminal Mischief, Class B misdemeanor
  • Graffiti, Class A or Class B misdemeanor
  • Theft of Property, Class B misdemeanor
  • Theft of Services, Class B misdemeanor

Officers retain some discretion as to whether or not a mere warning might be all that is merited. Likewise, officers can still arrest anyone who commits any of these low-level crimes if there are other circumstances present.

For example, in a situation where an officer finds someone in possession of an ounce of marijuana, that officer would have the options of either letting that person off with a warning or citing them and letting them go. If the officer has reason to suspect that the person is a flight risk, posed an imminent danger to themselves or others, or if the person demands to be taken before a magistrate, the officer can still make an arrest in such circumstances.

There is little question as to whether the ordinance is binding on the San Marcos police force under Chapter 341 of the Local Government Code, which governs municipal law enforcement. As cities increasingly confront issues like unequal policing and prison overcrowding, during a pandemic no less, more of them may consider passing similar ordinances.

The Austin City Council took a similar measure when it unanimously passed a resolution in January reprioritizing low-level marijuana possession in hopes of curbing arrests, but resolutions are more of a suggestion than the binding ordinance San Marcos passed. Likewise, the San Antonio Police Department implemented an internal policy of citing and releasing thefts from businesses between $100 and $750 last year as well. As more data is collected, it will be interesting to compare the impacts of the respective approaches. This may eventually provide a model for other cities who want to curb arrests by choosing to implement similar strategies in their own jurisdictions.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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