After voters in Killeen approved a measure to decriminalize possession of misdemeanor amounts of marijuana on Tuesday, enforcement of that section of the Texas Controlled Substances Act has ended inside the city limits.
“No arrests will be made for misdemeanor possession of marijuana,” according to a “special order” issued by Killeen Police Chief Charles Kimble on Thursday. “In lieu of a marijuana arrest, officers will not arrest for possession of drug paraphernalia or drug residue.”
It comes less than two days after the election in which Proposition A was approved by 69% of the voters but just over two weeks before the Killeen City Council canvasses the election results.
In unofficial results, 16,845 Killeen residents (69.4%) cast their ballots for Proposition A, according to Bell County election officials. At 30.5%, 7,411 voted against it.
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.”
No THC testing
Furthermore, consistent with the initiative ordinance that led to the approval of Proposition A on Tuesday, Kimble ordered that “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.”
It’s a departure from Kimble’s position in June, when he told council members that “the law is the guide.”
“Whether the Constitution, the law of the state, the law of the county, even county or municipal ordinances, the law is the guide, OK?” he said at the time. “The great thing about the law is that all the way back to the 1600s to today, is that it moves. It’s not static. It depends on what is going on at the time.”
And in January, he released a statement on decriminalization.
“We want the community to know that department does not support to decriminalize marijuana and we will continue to follow the statute, Texas Health and Safety Code 481.121 — possession of marijuana, which is the Texas state law.”
Proposition A applies to Killeen police only. Personnel from other law-enforcement agencies, including Bell County, constable’s offices and Texas Department of Public Safety may still make arrests or issue citations for marijuana possession and related offenses.
‘Path to legalization’
“I was disappointed but not surprised because when polled, a majority of people do support the legalization of marijuana,” Killeen City Councilman Jose Segarra said. “I think most believe that decriminalizing in our city, and other cities, may be a path to the legalization in Texas.”
In addition to Killeen and Harker Heights, voters in Denton, Elgin and San Marcos approved measures to decriminalize marijuana. And similarly to what it did in Denton and Killeen, Ground Game Texas worked in Harker Heights, San Marcos and Elgin to achieve decriminalization.
“The campaign saw the highest level of support in San Marcos — home to Texas State University — with nearly 82% of the votes,” The Texas Tribune reported. “Denton, which has several university campuses, saw more than 70% of the votes backing the proposition.”
Denton is home to the University of North Texas and Texas Woman’s University. In the neighboring suburb of Corinth is North Central Texas College.
Julie Oliver, an Austin attorney and co-founder of Ground Game Texas, a politically progressive grassroots organization, did not return a message seeking comment. But Mike Siegel, political director for Ground Game Texas, told the Tribune that “these meaningful reforms will keep people out of jail and save scarce public resources for more important public safety needs.”
“We’re extremely happy with our results,” he said.
Much like the Austin ordinance voters approved in May, the ordinances in Harker Heights, Denton, San Marcos and Elgin prohibit local police from enforcing low-level marijuana offenses.
“The proposals are possible because these are home-rule cities — jurisdictions that are able to create ordinances if they are not explicitly forbidden by Texas or federal law,” according to the Tribune. “The state currently treats the substances differently depending on their level of THC. For example, it legalized hemp, which has less THC than marijuana, in 2019. Then, in 2021, the Texas House approved a bill to reduce penalties for minor marijuana possession, but it died in the Senate.”
The home-rule assertion is something Oliver has invoked to promote the passage of Proposition A in Killeen. But opponents aren’t buying it.
“I was against Prop A because of the position it puts our police officers (in) who swore to uphold the laws of the state,” Segarra said. “But most importantly, (it’s) because it removes a tool our KPD uses — the smell as probable cause to do search, which has effectively proven to help catch other and more serious crimes in our city.”
The ordinance also is a contradiction to the Texas Controlled Substances Act, which makes it a misdemeanor to possess between 2 and 4 ounces of marijuana.
And according to the Texas Constitution, “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the constitution of the state or of the general laws enacted by the Legislature of this state.”
‘It will change nothing’
Once a candidate for public office, Chris Bray shrugged off the ordinance.
“As I have said many times, it will change nothing in Killeen,” he said. “This is a state-level issue. All those who may have been misled into believing otherwise, I predict, will find out soon enough. Municipalities in Texas must follow Texas law. Home-rule law does not trump state law when it is inconsistent with state law. Voters may not want or appreciate that fact, but lack of appreciation and understanding will not change fact.”
Killeen City Council members, similar to police, take oaths when they’re sworn into office, vowing to “preserve, protect and defend the Constitution and laws of the United States and of this State, so help me God.”
Also, all seven council members — Nina Cobb, Michael Boyd, Ken Wilkerson, Jessica Gonzalez, Ramon Alvarez and Riakos Adams are the others — and Mayor Debbie Nash-King signed a city “standards of conduct” document this year, pledging “obedience to state law.”
Other than Segarra, none of them responded to requests for comment last week. But Wilkerson during a council town hall on Oct. 27 said that he supports decriminalization as a resident but not as a council member.
“There have been things that I have voted for here on this council because of consensus of people who have reached out to me that I don’t personally agree with,” he said. “To be blunt with you — (decriminalization). I know what we can’t do as a council. That’s why I voted against it because as a council, I know what our rules state. For me, personally, I’m in favor if it. So you have to know the difference between that.”
On July 26, council members voted 6-0 to send the initiative ordinance to ballot — a necessary procedure under Texas law because they did not adopt the ordinance as written or revised. Alvarez did not attend the meeting.
The move came after 21 people during a public hearing talked in support or opposition to the ordinance.
“On May 25, there was an initiative petition to eliminate low-level marijuana enforcement,” Assistant City Attorney Asha Pender said at the time. “On June 14, the city secretary verified (1,018) signatures. You have to take final action by Aug. 13. It still has to go to the electors by the next uniform election day.”
That date was Nov. 8.
“The staff recommendation is that you do not approve this ordinance” because it is prohibited by the Texas Local Government Code, Pender said.
Along with Wilkerson, Alvarez and Adams signed the petition, acquired by the Herald through an open-records request. Neither Adams nor Alvarez have responded to requests for comment about the initiative ordinance, but Wilkerson told the Herald in June that he signed the petition as a “citizen.”
Louie Minor, a Ground Game activist, defeated Bray in the race for Precinct 4 Bell County commissioner on Tuesday. That night, he called the passage of Proposition A “a resounding win.”
But Oliver Mintz, a Killeen ISD school board member, continued to voice his opposition to the measure.
“I am very disappointed that Prop A passed,” he said. “It is bad for our city and bad for our police officers. I hope that our City Council members have the courage to uphold the oath that they swore to the citizens of this city and that they adhere to the very city charter that they amended only months ago.”
Under Section 109 of the Killeen City Charter, “if a majority of the electors voting on a proposed initiative ordinance shall vote in favor thereof, it shall thereupon be an ordinance of the city. Initiative and referendum ordinances adopted or approved by the electors shall be published, and may be amended or repealed by the council, as in the case of other ordinances.”
And amending or repealing the ordinance is a possibility Nash-King floated on Wednesday during a Public Policy Council luncheon hosted by the Greater Killeen Chamber of Commerce at Grace Christian Center. It was in response to a question about allowing Proposition A to stand by an unidentified person in attendance.
“We can do three things,” she said. “We can leave it as is, we can adopt it with amendments or we can repeal it.”
City Attorney Holli Clements said the council must first canvass the election votes before it decides what to do about the ordinance.
“The City Council will canvass the election results as required by law on (Nov 22),” she said. “I anticipate that City Council may discuss the ordinance itself on a future date.”
On the Herald’s Facebook page, several people weighed in on the issue.
“It needs to be legalized!” Renee Nay said. “Baby steps for Texas I guess. Now the police have free time to focus on real crime.”
Tavarus Durgin agreed.
“It’s about time! Too many people in jail for years for petty weed charges!”
But Judy Gunn said that city ordinances cannot supersede state law.
“Does anyone understand how the laws are passed in Texas,” she said. “A City Council can’t change the Texas Penal Code. Police officers will continue to enforce the Texas Penal Code.”
‘Lose-lose for Killeen’
Former Killeen City Councilwoman Mellisa Brown, who hosted a forum on decriminalization in October, called the passage of Proposition A “a lose/lose” for Killeen.
“I expected that Prop A would pass based on the amount of limited information contained in the ads that were distributed by Ground Game Texas,” she said. “I am fearful that they have just set our community up for failure because a lot of people I have talked to ... believed that this would truly decriminalize marijuana in the city.”
Mintz offered a similar sentiment.
“Ground Game Texas, an outside political group from Austin, has used Killeen to further its own political ends with no regard for the impact that it will have,” he said. “After they have left, the citizens of Killeen — particularly our most vulnerable — will be left to deal with the fallout.”
Brown said the city has two choices.
It can “ignore the will of the voters and repeal an ordinance passed by the voters after unanimously voting to place it on the ballot with no revisions or risk state funding that pays for JAG grants and KTMPO. Either way, this is a lose/lose situation for the citizens of Killeen.”
JAG is the acronym for judge advocate general. KTMPO is the Killeen-Temple Metropolitan Planning Organization.
Repealing Prop A in Heights
In Harker Heights, 5,208 residents (64%) cast their ballots for Proposition A. At 35.9%, 2,927 voted against it.
Assistant City Manager Jerry Bark said the Harker Heights City Council must canvass the election results before publishing the ordinance “in the newspaper” as required by its charter.
“Once an ordinance is adopted, the City Council may amend or repeal the ordinance,” he said. “The charter of the city provides that the ordinance, once effective, can be treated as any other ordinance and can be repealed if the council chooses to do so.”
And repealing it is likely the direction the City Council will go, Bark said.
“The city staff, after consultation with the city attorney, believes that the initiative ordinance is inconsistent with the state constitution.
“Because of this, it will be our recommendation to the City Council to fully repeal the ordinance.”
However, he said, “the city takes no position on the issue of the legalization of marijuana. The state of Texas sets these laws and if the public desires changes to these laws, then the state Legislature is the appropriate venue to seek those changes.”
In Killeen, 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.”
The ordinance provides a penalty clause for Killeen police officers who violate the ordinance.
“The only circumstances in which Killeen police officers are permitted to issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana are when such citations or arrests are part of (1) the investigation of a felony level narcotics case that has been designated as a high priority investigation by a Killeen police commander, assistant chief of police, or chief of police; and/or (2) the investigation of a violent felony. Any violation of this chapter may subject a Killeen police officer to discipline as provided by the Texas Local Government Code or as provided in city policy.”
In October, President Joe Biden said he is “announcing a pardon of all prior federal offenses of simple possession of marijuana” and urged governors to do the same for low-level marijuana possession.