DA: Lawsuit necessary to settle debate over Killeen’s marijuana decriminalization | Local News

In a unanimous vote on Thursday, Bell County commissioners agreed to file a lawsuit against Killeen over the city’s adoption of Proposition A, the ballot measure that was approved by voters in November to decriminalize marijuana in Killeen.

‘Begin a legal action’

“The county commissioners voted to direct the county attorney and (me) to get involved in the beginning to get that question answered,” Garza said. “That is the only way to get it into court to begin a legal action.”

None of the other Texas cities where decriminalization initiatives have been approved — Elgin, Denton, San Marcos and Austin — has faced litigation. But in San Marcos, Hays County District Attorney Wes Mau has asked for the Texas attorney general’s opinion on that city’s decriminalization ordinance.

“The good news is the vast majority of the law has actually been researched not only by me and the county attorney, (but) the city attorney in Harker Heights had the opportunity to review the matter legally and so has the city attorney in Killeen,” Garza said.

Opponents of Prop A, including Garza, say it conflicts with state law — where low amounts marijuana is still a misdemeanor — and therefore should not be allowed in individual cities.

It is not clear when the lawsuit will be filed.

“We will plan accordingly,” Garza said.

He and County Attorney Jim Nichols met with Commissioners Bobby Whitson, John Driver, Bill Schumann and Russell Schneider in executive session for an hour on Thursday. County Judge David Blackburn joined the meeting remotely, and Schumann chaired the meeting.

After 10 people spoke and each commissioner offered their opinions on Proposition A, they voted 5-0 on an “authorization to litigate.”

“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.

The decision allows Nichols to seek declaratory relief “authorizing peace officers licensed by the state of Texas to fully enforce marijuana laws as it is their duty to prevent and suppress crime under Section 2.13 of the Texas Code of Criminal Procedure.”

Louie Minor, a Ground Game Texas activist and Precinct 4 commissioner-elect, was the first to speak on the county’s lawsuit on Thursday.

“If you truly believe this ordinance is illegal because the state says it’s illegal, then you must believe the state’s compassionate use and medical marijuana legislation is illegal and breaking federal law,” he said. “Do not set the precedent of this county telling cities what ordinances they can pass or repeal. How many times have I heard that the county is only responsible for unincorporated areas in the county?”

Minor has worked with Ground Game Texas — the Austin-based grassroots political organization that’s crafted decriminalization ordinances in Harker Heights, Denton, San Marcos, Austin and Elgin — to get Proposition A approved in Killeen.

“For those who don’t know, Ground Game Texas is a liberal, progressive organization out of Austin,” said Bray, who ran against Minor for the commission seat in November. “They have no interest in Bell County other than to promote their own agenda by other means. Now, it’s up to the elected officials of Bell Count to clean up this mess created by this deceitful and unholy alliance. This ordinance passed by Killeen must not be allowed to stand.”

Michael Fornino (Killeen)

“What’s brought us here … is just cheap political theater. The strongest support all comes from outside agitators who don’t live in our community,” said Fornino, a regular speaker at Killeen City Council meetings. “We have a system of laws. It only serves to embolden those already in the illegal sales of marijuana.”

Oliver is executive director of Ground Game Texas an an Austin attorney.

Proposition A “is, by definition, local control. It dose not run afoul of state law,” she said. “No one can also credibly argue that full enforcement of drug laws means maximal enforcement of drug laws, because it can’t be done. No city, no county, no police department … has ever been subject to a lawsuit over setting their legal and fiscal priorities.”

Howard Arey (Harker Heights)

“I am in support of this court and the district attorney filing a suit in a court of law to fight this unlawful ordinance,” said Arey, a Heights businessman. “The rule of law allowed this illegal ordinance to move forward with a … ballot even if done with malicious intent.”

“The ordinance contradicts state law and statute. It is problematic,” said Okray, a former Killeen councilman. “I highly recommend that you proceed with litigation on this matter within a court of competent jurisdiction.”

Charles Wilson Jr. (Harker Heights)

“I am for Prop A. America’s greatness resides with its ability for its citizens to vote. In order for democracy to work, the vote of the people must be respected,” Wilson said. “That’s how everyone sitting in front of me got to where they are right now.”

“There is a difference between prioritizing and deprioritizing. We can deprioritize at the city level. What we can’t do is say that it is illegal for our officers to follow state law. Taking this to court is what the city of Killeen has asked for,” said Brown, a former Killeen councilwoman.

“Which law firm is going to represent the county as they sue the city of Killeen? What’s the injunctive relief that would be granted or criminal charge? If they don’t enforce the law, would we then be having in place a monetary penalty against the city of Killeen? Will there be possible criminal charges involved? Can we arrest the chief of police for the city of Killeen?”

Glass is a criminal-defense attorney in Belton.

Tony Canterino (Harker Heights)

“The law is very clear here. As you read the ordinance, there’s nothing in there that actually mentions or asks the question: ‘What about the ninth-grader who is trying to fit in?’ But there is stuff in the ordinance that takes away Fourth Amendment right of my police officers to have a probable-cause search. They have to have that. One of the things that saddens me most — and I hear it a lot — is, ‘My vote doesn’t count.’ The reality is your vote was wasted.”

Canterino is one of four Harker Heights Council members on Nov. 22 to vote to repeal Proposition A in Heights. However, after Ground Game Texas submitted more than 600 signatures in an effort to place a referendum on the May 6 ballot, city officials verified 440 of them — well over the 348 Ground Game Texas needed for the referendum.

In Killeen, residents on Nov. 8 approved Proposition A with 69% of the vote. Then, on Dec. 6, council members in a 4-3 vote amended Proposition A by removing Section 22-83, which prevents Killeen police from using the odor of marijuana or hemp as probable cause for search or seizure.

On Nov. 10, Killeen Police Chief Charles Kimble issued “special order 22-07” to officers, essentially putting Proposition A in effect before election results were canvassed two weeks later.

“No arrests will be made for misdemeanor possession of marijuana,” according to Kimble’s order. “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 Nov. 8, “city funds and city employees are prohibited from requesting, conducting or obtaining testing for THC. The odor of marijuana or hemp shall not be considered for probable cause for any search or seizure.”

Four days later, Garza sent a letter to Kimble asking him to rescind the 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.”

A two-week moratorium issued by the City Council on Nov. 22 made null Kimble’s special order and made ineffective Proposition A until Dec. 6, when the City Council amended the ordinance.

It requires that “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,” including the investigation of a “felony-level narcotics case that has been designated as a high priority.”

The ordinance also includes a prohibition against using city funds or personnel to conduct THC testing, issuing citations for possession of drug residue or drug paraphernalia in lie of a marijuana possession charge. That language remains unchanged, as does a provision that allows Killeen police officers who violate the ordinance to be disciplined.