City Council Moves Forward With Cite & Release Program

By, Terra Rivers | Managing Editor

The San Marcos City Council held a discussion and provided direction to staff regarding a cite and release program on Tuesday.

Council Member Mark Rockeymoore opened the discussion with an expression of gratitude to his fellow Criminal Justice Review Committee members and the city staff who were involved in the effort.

“This process is one that has taken a bit of time because it is mandatory on the part of all parties involved to make certain that we are doing what is best and balanced for our community,” Rockeymoore said. “For that to occur, we have to listen to all sides of an issue; this is just a process the city government has to go through.”

Rockeymoore said the committee and city have done its due diligence in the last seven to eight months and discussed the issue “exhaustively.”

According to Rockeymoore, the discussion would answer the question of whether the cite and release program would move forward as a resolution or an ordinance and language questions.  

An ordinance is a law adopted by a local governing body, which is only valid within the jurisdiction of that governing body. A resolution is a statement of policy or opinion regarding an issue.

“I feel like if it’s in an ordinance form, that puts more attention to the matter, and it can be dealt with in a better way,” Council Member Melissa Derrick said. “I think our numbers will improve.”

Derrick said she fears the impact of such arrests have on single parents and their children and the long-term effects of having a criminal record for even misdemeanor arrests.

“I worked at the university for twenty years, where I saw lives absolutely ruined,” Derrick said. “I worked in multi-cultural affairs across from the Dean of Students and watched many students, after being arrested for small amounts of marijuana, have nowhere to go after that. There’s no college; there are no scholarships. There are no job opportunities.”

An analysis by the San Marcos Police Department showed the use of Cite and Release for eligible class A and class B misdemeanors by members of the San Marcos Police Department in 2018 and 2019.

The department’s analysis showed 31 percent or 168 of the 543 people charged with an eligible class A or B misdemeanors were eligible to receive a citation in lieu of arrest in 2018; in 2019, 34 percent or 135 of the 398 people arrested were eligible for a citation in lieu of arrest.

Residency in the analysis was defined as “people who live, work, or go to school in Hays County.”

A person would not be eligible for cite and release if they possess outstanding warrants for other offenses if they have accompanying or additional charges that are not eligible for cite and release and if they are not a county resident.

Mayor Jane Hughson said she would like to see the council provide direction to the police department to implement a policy to use cite and release for eligible offenses as much as possible and a reason for why an individual who was eligible for cite and release was arrested.

“There may be times when removing someone is the right thing to do,” depending on the circumstances, Hughson said. “I think it’s probably going to be rare, but I would like to give them the discretion to arrest when needed.”

Hughson said she would like to see a 90-day report of the usage of the policy, so the council can review and determine what they might need to do.  

“I am not ready to do an ordinance at this point in time,” Hughson said. “I would be in favor of a resolution.”

Council Member Ed Mihalkanin said he understands the effects an arrest can have on a person’s life, and he appreciates the people who shared their personal stories about their experiences in the criminal justice system.

Interim Police Chief Klett said the ticket does not stop the consequences down the road of a crime; it is just a different way to get to the magistration and court proceedings. 

According to Klett, if an individual receives a citation for a misdemeanor, under the draft ordinance, the individual could continue to be cited and released for repeat offenses.

Mayor Hughson clarified that the program, in whatever way it was implemented, would only affect the consequences of a charge regarding the night in jail upon arrest.

Those who received a citation for an offense would still face magistration and be subject to sentencing based on their charges. This could include jail time and/or a fine.   

Council Member Saul Gonzales said he would be in favor of a resolution for a three-month period with a review by the city council upon its conclusion.

Gonzales gave an example of someone stealing a lawnmower, receiving a citation for theft for property under $750, and repeating the offense.

Under the ordinance, the same individual could continue to steal personal property and be cited and released for each repeat offense, according to Klett.

Chase Stapp, Director of Public Safety, said he felt the draft ordinance could be drafted into a resolution or an ordinance with “minor changes.”

The council reviewed several items on the draft ordinance provided by the committee and addressed concerns by Klett, the City Attorney Michael Cosentino, and committee members.

The discussion included the addition of items four through seven on the list of offenses to be included in the cite and release process and the use of the word ‘only’ in Section 2:1, which can be read in the document here.  

1. Class C misdemeanors other than public intoxication, assault, or family violence.
2. Possession of Marijuana less than 4 oz, Class A or Class B misdemeanor
3. Driving while License Invalid, Class B misdemeanor
4. Criminal Mischief, Class B misdemeanor
5. Graffiti, Class A or Class B misdemeanor
6. Theft of Property, Class B misdemeanor
7. Theft of Services, Class B misdemeanor

Klett provided the council with an example of an incident the department experienced in January, where two individuals were stopped in Comal County after stealing from three stores at the outlet malls in San Marcos.

Klett said one of the individuals was a resident of Wimberley, who therefore was eligible for the cite and release program; the other lived in New Braunfels and, thus, ineligible for cite and release for a crime committed in Hays County.

“Had we stopped them here in town and had the other agency not had charges on them that they had arrested them for,” Klett said, “We would have been in a situation where an officer is making an arrest that they would be uncomfortable not having the discretion in an unusual circumstance.”

Klett said the unusual circumstance, in this case, included having two people in the same vehicle, who were of different races; one of them would have been released with a citation, and the other arrested, one of which was white and the other African American.

“Certainly enough, we can stand up in the media and explain, well, our policy is if you don’t live in Hays County, you go to jail, and if you live in Hays County, you get cited and released,” Klett said. “But by then, the damage is already done and out there. It’s damaging to our officers who are being told they’re racist even though the situation is out of their hands; it’s damaging to the city of San Marcos’s reputation, who has a reputation for having a racist police department.”

“It’s just a wonderful example of unintended consequences,” Klett continued. “[The council is] trying to make the best decisions possible, but my officers are out there every day looking at these little nuances and out there protecting the city, our residents and our reputation. And this is one of those circumstances that it does not play out well for me to arrest one and cite one.”

It is the state statute that an individual is only eligible for cite and release for low-level offenses within the county in which that person is a resident.  

Rockeymoore said he believed the ordinance’s six points were inclusive of the many situations that police officers may experience.

“I think most people who would have looked at that issue on its face would understand the difference and be happy for the person who did not necessarily have to go to jail,” Rockeymoore said.

There was a consensus among the majority of the council on the inclusion of charges four through seven and the inclusion of the word “only” in section 2, section 1.

The council was slated for only a discussion Tuesday, so no formal vote was taken on the implementation of a cite and release program.

However, council members Jocabed Marquez, Maxfield Baker, Derrick, and Rockeymoore agreed on directing staff to bring the item back to the council as an ordinance.