It’s been more than seven weeks since the Bell County Commissioners Court voted unanimously to authorize a lawsuit against Killeen over the city’s voter-approved marijuana decriminalization ordinance.
Yet, as of Friday, the suit had not been filed, and the city had not been served notice of the suit.
Given the fact that commissioners called a special meeting three days before Christmas to authorize legal action, it’s fair to ask what the big rush was all about.
The commissioners acted at the request of District Attorney Henry Garza, who asserted that the only way to resolve the legality of the ordinance was through a lawsuit. The subsequent action authorized Garza and County Attorney Jim Nichols to sue the city over the ordinance known as Proposition A.
Nichols told the Herald on Jan. 30 that he plans to file the suit “within a week or two” but declined to elaborate.
So why hasn’t one been filed yet?
Garza and several other local officials contend that the ordinance is illegal because it conflicts with state law on this issue of possession of misdemeanor amounts of marijuana — in this case, under 4 ounces.
Proponents of the measure — chiefly Ground Game Texas, the Austin-based organization behind the petition drive that led to a public vote on Proposition A — counter that home rule gives municipalities latitude when it comes to enforcing state law.
In this case, however, law enforcement officials enforcing the city’s ordinance would be ignoring state law entirely, which many see as a violation of their oath of service. In addition, the ordinance allows for disciplining of police officers who fail to follow the ordinance.
Certainly, something must be done to sort this out, and Garza may be right that the legal route is the best avenue to pursue.
One reason this is true is that council members’ hands were tied to some extent regarding Prop A.
State law requires cities to accept citizens’ petitions for changes in the law, if they contain the required number of valid signatures. State law does not give city councils the leeway to reject petitions outright, even if they appear to be in conflict with state law.
Consequently, when the valid Prop A petitions were presented to the city councils in Killeen and Harker Heights, council members were allowed to vote against adopting the ordinance as the petition requested. But their city charters, based on state law, required the councils to put the petition up for a public vote on the November ballot.
When voters subsequently approved the Prop A ordinance by wide margins, the councils of both Killeen and Heights had three options: accept the ordinance as passed by the votes; amend the ordinance; or repeal.
Heights council members wasted no time in repealing the ordinance, voting 4-1 to do so, effectively taking it off the books just two weeks after voters went to the polls.
In Killeen, council members first tabled discussion, then on Dec. 6 voted to amend the ordinance — removing the clause that prevents Killeen police from using the odor of marijuana or hemp as probable cause for search or seizure.
Still, Bell County officials saw the city’s ordinance as conflicting with state law and took action.
The authorization for the lawsuit states: “The Bell County attorney is authorized to file suit against the city of Killeen and its agents to enforce Texas Local Government Code section 370.003 by seeking declaratory relief in district court against the city of Killeen’s actions as unconstitutional; and seeking injunctive relief in district court against the city of Killeen from enforcing either the special order or ordinance; and seeking injunctive relief against the city of Killeen from punishing police officers for enforcing marijuana laws under the Health and Safety Code, Penal Code, and Code of Criminal Procedure,” according to the authorization.
Meanwhile, Prop A backers initiated a petition drive for a referendum in Harker Heights, calling for the overturning of the city council’s repeal of the marijuana ordinance — in effect, a repeal of a repeal. That item is set to go before the city’s voters at the May 6 municipal election. In the meantime, Prop A remains off the books in Harker Heights, despite protests from referendum organizers.
What is becoming increasingly clear is that a court ruling will be needed to determine the legality and validity of the marijuana decriminalization ordinance — a version of which has now been passed by voters in six Texas cities.
But why the delay in Bell County’s filing, after such a rush to authorize a suit?
It could be that the county attorney is reviewing the county’s options, and researching related cases to determine the best legal strategy.
He could also be waiting to see if any other legal action is taken regarding Proposition A. For example, in San Marcos, Hays County District Attorney Wes Mau asked for the Texas attorney general’s opinion on that city’s decriminalization ordinance. As of last week, however, there was no news to report on that front.
Some have speculated that the county’s authorization of a lawsuit was designed to put pressure on Killeen council members to backtrack and repeal the city’s marijuana ordinance. But if that was the plan, it hasn’t worked — at least, not so far.
Of course, it’s entirely possible that one of the reasons for the rushed approval for a county lawsuit was that a new commissioner, Louie Minor, was scheduled to take office on Jan. 3. That’s important because not only is Minor a backer of the marijuana ordinance; he was one of the petition organizers in both Killeen and Harker Heights. Had the subject of a lawsuit come to a vote after Minor took office in January, it’s likely that he would have been a vocal opponent of the plan.
But now that the county attorney has had his “one or two weeks” since Jan. 30 to get the lawsuit filed, it’s time to move forward and get this legal proceeding before a judge.
The sooner that is done, the sooner this controversial issue can be resolved — though it’s likely that whatever ruling is rendered, it will be appealed to a higher court.
Certainly, the likelihood of an appeal is a solid argument for the county attorney to proceed with an extra measure of diligence and care. If indeed that is one reason for the delay, it is certainly justified.
However, it may take time to get this lawsuit on a court docket and have it heard by a judge, so every day that passes is one more day that the existing law is on the books in Killeen, as well as four other cities.
It’s also one more day that petition organizers have to rally voters to rescind Harker Heights lawmakers’ repeal of the ordinance.
If the marijuana ordinance passes muster in the judicial system, so be it.
But if the courts find Prop A violates state law and is causing law enforcement officers across the state to violate their oaths of service, it must be invalidated — and the sooner the better.
Let’s get this resolved once and for all.
Our communities have far more important things to contend with.
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