The Texas Court of Appeals has temporarily restored the authority for law enforcement to arrest individuals in Austin who are found in possession of low levels cannabis.
On Thursday, nearly three years after Austin’s reform initiative was passed by voters at the polls, the Fifteenth Court of Appeals of the Texas State sided with Attorney General Ken Paxton in his suit asserting that the state preempts any local decriminalization legislation.
While Travis County District Court Judge Jan Soifer rejected the initial challenge to Austin’s marijuana law last year, the appeals court—comprised of three conservative justices appointed by Gov. Greg Abbott (R)—has now overruled that decision. Trial will be held in the case.
It’s one of many setbacks activists have suffered as state legislators continue to oppose any changes to marijuana policies.
In a recent case, the appellate court sided also with the state against the city San Marcus in a lawsuit filed by it challenging its implementation of the local decriminalization marijuana law passed by its voters.
In its latest opinion, the court states: “Consistently with City of San Marcos we conclude that ordinances in this case are also preempted under state law.” Accordingly, the court holds that Appellees cannot be immune to State suit. The trial court also erred in its decision to deny the State’s temporary injunction against enforcement of the ordinance.
The State doesn’t want the law enforcement in the city to increase arrests of people who are found to be possessing marijuana. Instead, it challenges the validity and implementation of the Ordinance which prevents citations, arrests and other actions for misdemeanor marijuana offenses because state law preempts the Ordinance. It is the State’s right to enforce their own laws, and so they have standing to sue.”
On Wednesday, Texas Senate passed a law that will prevent cities from including any initiative by citizens that decriminalizes marijuana or controlled substances on the local ballot.
Despite the ongoing litigation and Senate bill’s advancement, 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 legal challenges, several courts have ruled in favor of advocates.
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.
The lawsuit filed by Paxton has not been thrown out. At least temporarily, however, the judge decided that the policy of decriminalization could continue while the litigation proceeds.
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.
The governor has been very critical of the local cannabis reform initiatives.
“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. We should legislate so that we can ensure the state as a whole will adopt some laws.
It would create “chaos”, and voters could “pick and choose” which state laws they wanted to adhere to.
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. The report found that these measures would keep hundreds out of prison, while also causing a backlash from the law enforcement agencies in certain cities. Report said that the initiatives had also increased voter participation by appearing on ballots.
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. Among other things, various measures are being proposed to legalize marijuana for adults, eliminate criminal penalties associated with cannabis possession, adjust existing medical marijuana law in Texas, etc.
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.
Separately, a Texas House committee took testimony on Monday about two bills designed to prepare the state to provide swift access to therapeutic psychedelics in the event of approval from the U.S. Food and Drug Administration (FDA).
You can find the decision of the Austin appellate court in the cannabis decriminalization lawsuit below.
Colorado Lawmakers Approve a Bill That Will Allow the Governor to Pardon Masses of Convictions Related to Psychedelics
Mike Latimer provided the photo.
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