As multiple states across the U.S. voted to legalize recreational marijuana in Tuesday’s general election, city of Denton voters approved their own Proposition B, establishing a city ordinance that will direct city police and funds away from enforcing low-level marijuana possession offenses. The measure passed with 71% of voters in favor.
Denton police chief Doug Shoemaker affirmed the department will continue to deprioritize low-level marijuana possession offenses, but the ordinance doesn’t make recreational marijuana legal in the city.
Additionally, the city has indicated pushback against the ordinance passed by referendum. City Manager Sara Hensley said in a written statement that she and other city staff are concerned about the potential for public misunderstanding about its enforceability by law enforcement.
She also said the proposition comes in “direct conflict” with state law.
So what happens next?
What is the ordinance?
The ordinance amends city code to end citations and arrests for misdemeanor possession of marijuana offenses of less than 4 ounces, with the exception of offenses that are part of felony narcotics or violent felony investigations.
The ordinance wouldn’t stop a police officer from confiscating suspected marijuana. State officers could still make marijuana-related arrests in Denton, and the ordinance wouldn’t render state law obsolete for city officers.
The ordinance also prohibits a “smell test” to be a probable cause for search or seizure, and city funds would not be used to test a substance to be identified as marijuana, except for in cases of felony level investigations.
Texas legalized hemp, but not marijuana, in 2019, resulting in the costly need to test substances for THC levels before prosecuting charges and a dramatic drop in overall arrests and convictions.
The ordinance would not apply to Texas Woman’s University and University of North Texas jurisdictions or their law enforcement agencies that have jurisdiction in Denton. It also has no power over the Denton County sheriff’s office or the Texas Department of Public Safety.
The ordinance does not impact Texas laws on felony possession of concentrated THC products such as edibles or vape cartridges.
Proposition B received 45,702 votes, with 32,610 for the ordinance and 13,092 against. The proposition was introduced to the ballot by petitioners.
Nick Stevens, a board member of Decriminalize Denton, said he was proud of Denton’s voters but not surprised by the outcome.
“There’s not much that Texans agree on, but weed is an exception to that rule,” he said.
A recent poll from The Dallas Morning News and the University of Texas at Tyler found 83% of Texans (both Democrats and Republicans) support legalizing medical marijuana in the state. Sixty percent said they supported legalizing the drug for recreational use.
Stevens said the next step for the group is to see the implementation of the ordinance into city code.
“Right now we are focused on making sure that the chief of police and the city manager follow the law and do their job,” he said.
How will the ordinance be implemented?
The ordinance will go into effect after the election is canvassed by the Denton City Council. That will take place during a special meeting Nov. 18, the city said in a press release.
“The department understands that, with the voter approval of Proposition B, voters wish to reduce punishments for low-level marijuana possession,” the city said in its statement.
However, Hensley said two state laws are in “direct conflict” with the ordinance.
A Texas Local Government Code prohibits cities and police departments from adopting policies that do not “fully enforce” state and federal drug laws. The city also said the Texas Code of Criminal Procedure stipulates the duty of police officers to enforce state law.
“The city does not have the authority to implement some provisions of Proposition B without changes to current drug laws by Congress and the Texas Legislature,” Hensley said.
Because of these state regulations, the city said it will be conducting a review of which portions of the ordinance will be incorporated into the police department’s general orders.
Hensley said Denton police officers will continue to have the authority to enforce state marijuana laws.
“Neither the city, the city Manager, nor the chief of police has the authority to direct officers to do otherwise or to discipline an officer when they are acting in accordance with state law,” Hensley said.
Hensley also said she does not have the authority to direct the chief of police “to act in violation of state law.”
According to the ordinance, Hensley will report the implementation of it to the City Council within three months.
What was on the books?
In a written statement following the election, recently appointed police chief Shoemaker said, “As a forward-thinking agency, marijuana possession alone has not been a priority for the Denton Police Department for several years. This will continue to be the case.”
In the department’s general orders manual, last updated on Oct. 6, order 529 outlines the department’s guidance on marijuana enforcement.
According to the general order, officers had the discrepancy to issue a citation for “possession of drug paraphernalia” in the case of an offender possessing misdemeanor amounts of marijuana. Texas law already grants police officers the discretion to decide whether to arrest low-level offenders or issue a citation and release.
According to the city’s press release, from June 2021 to July 2022, the police department made 65 arrests for low-level marijuana possession. Fifteen of these charges were accompanied by charges unrelated to marijuana, and weapons were involved in 31 of these instances.
“When marijuana possession pairs with other crimes that affect public safety, including offenses such as driving while intoxicated or firearms violations, such acts cannot and will not be ignored,” Shoemaker said in his statement.
The Dallas Police Department stopped making arrests for small marijuana amounts under 2 ounces in 2021, after a report found people of color made up a disproportionate amount of arrests.
Dallas County District Attorney John Creuzot’s office stopped prosecuting misdemeanor marijuana charges in January 2019.
Denton voters also recalled council member Alison Maguire in this month’s election with the passage of Proposition A.
