Sunshine Stanek wants the Texas attorney general to tell her if Lubbock voters approve a marijuana initiative in May, would it stop police from enforcing misdemeanor laws. She asked for an “expedited” response, but she does not yet have an answer.
Stanek, Lubbock County Criminal District Attorney, asked for the opinion in December – seeking an official legal document to guide her decision making.
In late January, Attorney General Ken Paxton sued five Texas cities over this issue. On Thursday, Stanek told LubbockLights.com her request is now on hold because of the lawsuits.
“My understanding is that the outcome of the litigation should answer the questions contained in our opinion request. No timeline was given,” she said.
But for Lubbock, the clock is ticking.
Voters head to the polls on May 4 for a ballot issue that does not legalize marijuana. Instead, it calls on police to look the other way for misdemeanor possession.
In this story:
• Brief history and explanation of the ballot issue
• A look at the legal issues in other places
• Exploring Stanek’s request for a legal opinion
• Reaction from a local defense attorney
• Reaction from Compact Lubbock and Lubbock Freedom Act proponents
The ballot issue
Last year, a group called Lubbock Compact gathered enough signatures from registered voters to force a ballot referendum in the city.
In November, the City Council had a choice of accepting the proposal or sending it to an election. The council put it up for an election.
The proposed ordinance directs police officers to make no arrests or citations for misdemeanor marijuana violations. There are some exceptions, but that’s the gist.
City Council members explained their opposition in our November 17 article.
LubbockLights.com asked the city if it would test the issue in court before going to a public vote.
In response, the city said, “The Lubbock City Council is currently acting, and will continue to, under the purview of the city charter and state law.”
Spokesperson Lauren Adams said the city would have nothing further to say right now.
Legal issues in other places
Paxton’s legal challenge to Austin, San Marcos, Killeen, Elgin, and Denton is not the first battlefield.
Last year, Bell County and Texas sued Killeen and an organization called Ground Game Texas claiming cities had no right to turn a blind eye to marijuana offenses.
Killeen and Ground Game wanted the lawsuit tossed out on technicalities before it ever went to trial. But a judge ruled to keep the lawsuit on the books. Killeen and Ground Game appealed, and that’s where it stands.
Front and center in that legal battle is a brand-new Texas law that says:
“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…”
In the appeals court, Ground Game argued nothing in the new law requires a city to prioritize marijuana offenses. There is no minimum number of arrests or citations a police department must make.
The state and Bell County responded. They said the city ordinances directly contradict state law. If the higher courts do not side with cities, their reduced enforcement of marijuana is likely dead.
The judge in the original lawsuit wrote, “It is utterly contrary to Texas law. It is unconstitutional. It is unenforceable. It is invalid.”
Lubbock’s request for an opinion
In her request to Paxton for a legal opinion, Stanek seemed to argue against the proposed ordinance.
She summarized her request as: “Whether the City of Lubbock, Texas, as a home-rule city, has the authority under state law to enact an ordinance to eliminate or reduce the enforcement of certain drug laws within the City.”
Stanek pointed out police officers swear an oath to enforce the law.
She quoted the proposed ordinance as saying the smell of marijuana will no longer be a good enough reason for police officers to conduct a search.
Stanek thinks that’s a problem, she argued:
• Courts decide which evidence is good enough for a search and seizure – not a city council. The proposal, she argued, violates the separation of powers between the legislative and judicial branches.
• The city’s charter also forbids any Lubbock ordinance if it violates state law or the state constitution.
Stanek concluded with three questions for Paxton:
• Is the ordinance void even if Lubbock voters approve it?
• Does it interfere with prosecutors doing their jobs?
• What liabilities do Lubbock officers face by not enforcing marijuana laws?
‘A toothless ordinance’
Alexander Nunez has been a defense lawyer for a little less than two years. He likes the idea behind the ordinance. He thinks arresting people for small amounts of marijuana is a waste of effort.
He described it as, “pulling people off the streets for just having a little weed.”
But what if someone is charged for “just having a little weed” and wants to use Lubbock’s ordinance as a defense?
“That’s not going to work very well,” Nunez said. “It’s going to be a toothless ordinance.”
“What the judge is going to say is, ‘Well, I don’t care what the municipal ordinance says. The state law still says that it’s a crime,’” Nunez further explained.
“Even if you end up beating the case, you’re still going to spend thousands of dollars,” he said.
LubbockLights.com reached out to other attorneys as well. While they didn’t wish to speak at length, we were told consistently Lubbock cannot override a state ordinance. A defendant couldn’t get off the hook in court by citing Lubbock’s marijuana ordinance.
Nunez thought, legal challenges aside, if enough cities pass this kind of ordinance, it will change the political landscape.
“I think it sends a pretty strong message to the governor and to the representatives,” Nunez said. “This is how Texas citizens feel.”
Lubbock Compact and Freedom Act Lubbock
Adam Hernandez is chair for communications at Lubbock Compact and also heads up communications for Freedom Act Lubbock – the groups supporting the proposed ordinance.
Lubbock Compact publicly denounced Paxton for suing Texas cities.
“He’s essentially trying to punish voters,” Hernandez said. “Those issues were decided by ballots. They weren’t decided by any city council or any governing body.”
The idea is not to make marijuana more accessible, he said.
“It’s simply to keep people out of jail for personal use,” Hernandez said.
“It’s already here. They’re already getting it. Obviously, we arrest 600 to 700 people with these sorts of arrests every year here in Lubbock,” he said.
“It’s actually pro-public safety. It’s not pro-crime,” Hernandez said. “Would you rather have officers focusing their attention on dealing with actual dangerous substances like fentanyl or opioids or things of this nature?”
He thinks the Republican majority in the Texas Legislature is not consistent – sometimes arguing in favor of smaller government but then passing laws to centralize marijuana laws with the state instead of local cities.
“We have a home rule city in our Constitution of the state for this reason, so that local municipalities can create laws that make sense for them locally,” Hernandez said.
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