Bell County District Attorney Henry Garza has sent a letter to Killeen Police Chief Charles Kimble asking him to rescind an order that ends enforcement of low-level marijuana offenses following voters’ approval of Proposition A.
“In that order, you instruct your employees, among other things, not to make arrests for the possession of misdemeanor amounts of marijuana nor to consider the odor of marijuana or hemp as probable cause for any search and seizure,” Garza wrote. “I am writing to respectfully request that you rescind this order.”
The Herald asked Killeen police spokeswoman Ofelia Miramontez to confirm receipt of the letter, but she had not done so on Tuesday afternoon.
Garza confirmed he did indeed send the letter to Kimble. The letter, added Garza, was also signed by Bell County Attorney Jim Nichols, whose office handles misdemeanor cases.
“Myself and the county attorney Jim Nichols have both signed a letter to chief Kimble requesting him to reconsider a general order that he has signed,” Garza said in an email to the Herald. “We expect to visit with the Chief once he has had an opportunity to review the information that has been provided to him.”
‘Non-binding opinion’
Louie Minor, a Killeen politician and activist with Ground Game Texas, the progressive grassroots organization that led decriminalization initiatives in Killeen, Denton, San Marcos and Elgin, said he also received a copy of Garza’s letter.
“It’s an opinion — a non-binding opinion,” Minor said. “To me, it’s as worthless as the paper it is written on.”
Minor, a Democrat, defeated Chris Bray, a Republican, for Precinct 4 Bell County commissioner on Nov. 8 — the same night that Killeen and Harker Heights voters approved Proposition A, which prevents city police officers from charging people with misdemeanor amounts — less than 4 ounces — of marijuana possession.
“The DA handles felonies, not misdemeanors,” Minor said. “The people voted on it, and the city is moving in the right direction. I praise the chief for giving a special order to comply with the will of the voters.”
Two days after voters here approved Proposition A, Kimble issued “special order 22-07” to end enforcement of state law.
“No arrests will be made for misdemeanor possession of marijuana,” the order shows. “In lieu of a marijuana arrest, officers will not arrest for possession of drug paraphernalia or drug residue.”
Furthermore, consistent with the initiative ordinance that led to the approval of Proposition A on Tuesday, “city funds and city employees are prohibited from requesting, conducting or obtaining testing for THC. The order of marijuana or hemp shall not be considered for probable cause for any search or seizure.”
Under Proposition A, “Killeen police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses, except in the limited circumstances.”
Kimble’s order specifies that his instructions “do not apply in instances where a felony-level narcotics case has been designated a high priority investigation by a captain or above and/or the investigation of a violent felony.”
‘Contrary to ... the Legislature’
But Garza challenged Kimble’s order on the premise that Proposition A is a contradiction to Texas law.
“First, Proposition A, and your general order implementing it, contravene Section 370.003 of the Texas Local Government Code,” Garza wrote. “That statute could not be clearer and is worth quoting in full:
‘The governing body of a municipality, the commissioners court of a county, or a sheriff, municipal police department, municipal attorney, county attorney, district attorney, or criminal district attorney may not adopt a policy under which the entity will not fully enforce laws relating to drugs, including Chapter 481 and 483, Health and Safety Code, and federal law.’”
Garza also calls Proposition A “void” because neither that measure nor Kimble’s order are lawful because they “are contrary to the express will of the Legislature.”
Proposition A provides a penalty clause for Killeen police officers who violate the ordinance.
“I praise the chief for giving a special order to comply with the will of the voters, and I believe the city manager and city staff obviously support it,” Minor said. “To me, the DA doesn’t have a say in our city business.”
In Texas, district attorneys prosecute felony cases. Misdemeanor cases are prosecuted in county and municipal courts.
Killeen City Council members, Killeen City Manager Kent Cagle and Killeen City Attorney Holli Clements have been asked by the Herald since Friday to repeatedly to comment on Kimble’s order. They were asked to do the same when Garza issued his response.
‘Give us legal guidance’
Only City Council member Jose Segarra responded to the Herald.
“This is something that our city attorney will have to discuss with council and give us legal guidance,” he said. “I think, ultimately, it will be up to the council on what they do with this ordinance, if it comes up for a vote, beyond the certification of the ballots.”
Council members are scheduled to canvass the election results on Nov. 22.
(11) comments
[offtopic] The ultimate conversation is voter rights and voter participation. Should the VOTED decision be overturned it will most likely be certain that voter turnout will be less next election. If the Topic on the ballot was illegal, it should have never made the ballot, which is A legal binding agreement and document. The government was elected on the same ballot. If you Void the specific item on the ballot, you void the whole ballot.
Killeen always has to be playing games with peoples lives. How about you tax it like all the other states and get these homeless off our streets. How about new jobs and better pay for teachers? I could go on and on Killeen but you all gotta keep the hate alive which is sad
It doesn't make sense that a city can ignore the laws of the state, anymore than the state can ignore the laws of the US Government. Its apparent that the city of Killeen or that matter Harker Heights have a lot of dope heads. Part of the problem is that the Federal Government has not shut down these State laws that allow the use and sell of pot. I never thought I would see the day were Killeen Texas would allow the citizens to ignore state/federal law, or did I ever think Law enforcement would stand by and do nothing about broken laws. Before you know it, Killeen Texas will have more problems with Pot and other drugs because of this illegal ordance. By the way why do they even need this ordance, many Killeen ordances are not even enforced, like parking on the grass in the front yard, or Semi trucks in residential areas, or a fromt yard being uised a business to repair mowers, or collect garabge. For a example drive down to the end of Twin Oaks cir, and see how many ordances are broken.
[offtopic] The state of Texas said it will not give funds for police to Test for low amounts of marijuana. Killeen said tax dollars will not be used to fund the testing of marijuana. It's a mute decision, without having money to test they can't say it's marijuana. Also no state law about smell only a court ruling city can still trump that. So what's the issue yea it not legal but they can't provide enough evidence for them to say you are breaking the law so the hands are tied and not with the headache... How about them apples?
Cities are not sovereign in their ability to make laws that are inconsistent with state law. Most voters don't understand or appreciate this. This issue is a state issue and must be voted by all voters. It may pass if voted on at the state level, but it was not voted at the state level. Proponents mistakenly used "Home Rule" as justification for this ordinance, however home Rule law does not allow for cities to create ordinances that conflict with state law. Under the home-rule amendment of the Texas Constitution, a municipality cannot adopt an ordinance that conflicts with or is inconsistent with state law. Agree with it or not, that is the law.
The DA’s reliance on the Local Govt Code is incorrect. The plain language of the statute does not forbid voters from enacting policies contrary to state drug laws.
Of course...we are losing democracy a little each day even though the majority voted for this proposition.
The fear of losing control of the masses scares the heck out of law enforcement. Never mind that were going on 20 murders now not to mention the up tick in robberies.
Lets keep the poor man down while keeping our jails full!
Liberty and justice for all!!!
Lets stay in the 20 century and all the regressive laws some people seem to want.
[innocent][rolleyes][lol][huh]
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Toldja so!
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If the overlords resist, I'm told Attorney General Paxton will be weighing in on the matter!
I don't understand, If they can't ignore federal & State Laws, Why was the Issue even voted on ? Was it a total waste of Time ? Why was it Allowed ?
No backs! We.have.voted. Should be legal state wide.
How can something that is voted on at a local level be valid statewide? Would you disenfranchise voters across the state? That would create anarchy across this country. That is not how our system works or has ever worked.
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