San Marcos Police Association Expresses Concerns Regarding Cite & Release Ordinance

By Terra Rivers | Managing Editor

Over the last year, several local activist organizations have been pushing for the establishment of a cite and release program in San Marcos.

The San Marcos City Council voted to move forward with a draft ordinance in March, but the San Marcos Police Association has expressed concerns with the ordinance as it is written.

“We don’t have an issue with what they’re asking for except that when you do it in an ordinance, it creates problems,” Jesse Saavedra, President of SMPOA, said. “And it creates some problems for everyone, the officers, the offenders, and the victims.”

The draft ordinance defines seven offenses in which officers are to follow the cite and release process rather than arrest in the appropriate circumstances.

  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

As defined, the ordinance allows cite and release for offenses that leave the association and its officers with concerns.

Class C misdemeanors in Texas is only punishable by a fine of up to $500. The ordinance exempts public intoxication, assault, or family-violence related charges. But it doesn’t address several other charges.

Some Class C misdemeanors are labeled ‘Disorderly Conduct’ and include charges such as loitering, unreasonable noise, discharge of a firearm, verbal threats in an offensive manner, unreasonable noise, fights, display of a firearm, and indecent exposure.

Saavedra said under the ordinance, officers might be increasing the use of cite and release, but at the cost of the sense of security and safety that the victims expect.

For example, if officers received a report of a Peeping Tom, which is a loitering Class C misdemeanor, and identified and located the suspect based on his description two blocks away, they would be required to cite and release him. 

“Now you have a victim who is still in her apartment, and you have to explain to her that ‘we caught the person; we know who he is, and we wrote him a ticket and now he is free to go.’ Where does that leave the victim?” Saavedra said. “They’re now at home at 3 o’clock in the morning, and they know this person is still out there.”

But the feeling of safety by the victims isn’t the only concern the association has.

The ordinance does allow officers to use their discretion, but the officer must have a good reason, such as an “imminent danger or threat,” and be able to explain it.

“When you do that, you really set that officer up for any kind of lawsuit because the officer went outside the parameters of the ordinance,” Saavedra said. “And then the officer has to explain why he went outside of it, and it becomes subjective as to whether or not the people evaluating this decide there was good reason for the officer to go outside the ordinance.” 

Saavedra said state law requires officers to show probable cause for an arrest whether the defendant is eligible for cite and release or not, but the City’s draft ordinance seems to require further justification for an arrest if they are eligible.

“Justification (Justice) used to be determined by Judge and or Jury,” Saavedra said. “There is no clear indication of who will be evaluating the data to determine if the officer was ‘justified.’ Normally, that is a position taken by the magistrate (they evaluate the Probable Cause Affidavit and determine whether or not there was substantial Probable Cause for the arrest).”

In the case of a loitering suspect, it would be difficult for officers to justify further arresting a suspect who was two blocks away and walking away from the scene.

“The ordinance doesn’t address the victims,” Saavedra said.

According to Saavedra, restitution for victims is not guaranteed in every case, and loitering is one case in particular where the victim doesn’t receive restitution at the end of the process.

“I don’t think restitution would make anyone feel any safer even if they were to get it,” Saavedra said. “And more importantly the security and the safety of that person who has been victimized by the offender without taking that person to jail, without arresting them on the spot, that person goes the rest of the night, maybe even the next few days, maybe even the next first weeks worrying about that person who was released and not arrested.”

“The problem then becomes that rather than go through that whole process and that difficulty of explaining over and over again why you did this,” Saavedra continued. “Officers start to adhere to an ordinance very strictly.”

The draft ordinance provides six instances where officers may find it necessary or appropriate to arrest a suspect for a cite and release eligible crime.

1. The subject does not provide satisfactory evidence of personal identification to allow for citation.

2. The subject is not a resident of the county in which the offense was allegedly committed. For the purposes of this Section, an individual who lives works or goes to school in the county where the offense was allegedly committed will be deemed to be a resident of Hays County. In determining whether the subject is able to provide satisfactory evidence of personal identification, it shall be acknowledged that not all persons are able to produce a government-issued ID. Therefore, although a government-issued ID is preferred, the City shall accept other forms of identification, regardless of an expiration date, including but not limited to: any state or federally issued ID, utility or rent bill, student ID, or other forms of identification that include an individual’s name and address, as well as photos of the aforementioned forms of identification.

3. There is reason to believe that the safety of persons (including the subject) would be imminently endangered by the release of the subject. In making this assessment, it shall be considered whether the subject has the physical or mental capacity to endanger the safety of themselves or the public, whether the subject is unlawfully carrying a weapon, and/or if the subject has made immediate threats against other individuals in the area. In cases in which the subject appears to suffer from mental illness and/or addiction, a referral to appropriate medical and/or psychiatric services in lieu of arrest shall be considered in accordance with the SMPD policy.

4. The subject demands to be taken before a magistrate.

5. The subject has an outstanding arrest warrant from a criminal law enforcement agency.

6. The subject is also suspected of having committed an offense for which the cite and release process is not allowed by state law.

But Saavedra noted other cities and counties who have implemented cite and release programs have experienced issues.

According to a report by the Austin Statesman, Travis County’s cite and release program saw over 40 percent of its defendants fail to appear for their court hearings in 2018.

The City of Austin’s police policy established four criteria officers use to determine whether to arrest someone they encounter for a citation-eligible offense.

  • The officer believes that the safety of a person or property would not be endangered.
  • The officer must be satisfied that the person has identified themselves fully.
  • The offense also must not involve exposure with sexual intent.
  • The person did not request to be immediately taken before a magistrate judge.

Saavedra said Hays County doesn’t have the infrastructure to support a cite and release program yet; in the last month, SMPD officers have been asked by the magistrate’s (JP’s) office to write warrants for the defendants who failed to appear for their court hearing.

The time saved by officers by utilizing cite and release is then negated by the time it takes to write the warrant, get them entered into the system, and then serve them.  

Hays County is in the process of establishing its own cite and release program, but the justice review commission has not presented a resolution for a cite and release program as of yet to commissioners.

Commissioners recently approved the establishment of a part-time position under its new magistration division, which aims to provide magistration services seven days a week and almost twenty-four hours a day.

The division was created in January to provide magistration duties on an as-needed basis for weekends, holidays, etc.

According to Saavedra, the City of San Marcos has already seen cases where a person was caught by law enforcement for committing similar crimes and cited and released on both occasions.

“The county is not prepared for it. Even the City is not prepared for it,” Saavedra said. “That whole idea creates a different system because now the county has to set up a method to bring these people in, to fingerprint them, identify them, and magistrate them.” 

Saavedra said the association doesn’t understand why there is such a big push to get the ordinance passed when the county has repeatedly said they aren’t ready.

“The police officers association is not against what they’re doing; they want to see more cite and release, and we’re certainly on board with that,” Saavedra said. “But when you make it an ordinance, it creates some pretty significant hurdles, and it could be very damaging to a lot of people, not just the police officers but the victims and the offenders themselves.”

In a report released by SMPD, it showed 13.1 percent of the people arrested in 2018 were eligible for cite and release. 

The San Marcos City Council will consider the ordinance on the first of two readings during their meeting Tuesday, April 7, at 6 PM.

Written public comments can be submitted to the City Clerk’s office or via email no later than 12:00 PM on the day of the meeting.

SMPD Arrest Analysis 2018-2019:

San Marcos Police Department Analysis Arrest 2018-2019

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13 Comments

  1. The arresting agency pays around $155 daily to house pre-trial detainees.
    That’s why council is desperate at creating “solutions” driven by costs.
    But what is it that really drives the volume of arrested persons here?
    At first glance, we’re a city of aroud 35,000 people.
    Pay no attention to the additional 38,000 others here on account of Texas State.
    .
    They don’t count becausethey couldn’t possibly amount to being a magnet for the drugs and alcohol associated with young adults living away from home (badly) for the first time, as invariably draws the criminal element, including inevitable violence.
    Nooo…who would have guessed that TSUS, aside from teaching racial division and “entitlement” philosophy to young, emotionally vunerable adults, might otherwise be properly identified as a cause…
    Solution ? Let the cancer die.
    “The only intelligent thing to do with modern American colleges is to get rid of them.”
    .
    oh yeah….Cite-and-Release driven by jail overcrowding….right. Like saying rain is caused by gravity.

  2. San Marcos citizens need to read this and see how this ordinance will endanger them, their family, and their property! The committee the city formed (CJC) did not unanimously agree on what to do and kicked it back to the council because I bet they did not want to be responsible for the outcome. Council is listening to Mano Amiga, the anti law, anti police organization and must stop! Mano Amiga does not represent even 1% of San Marcos law abiding citizens. They advocate for illegal activity. Hold city council accountable and send them a message. They need to hear from all of us.

  3. who needs a counterpoint, or even a fact check, when you’re a fake news publication? one side will do!

    why on Earth does the City need to wait on the County to pass policy affecting its own police department. he’s conflating the D.A.’s diversion program with cite & release, and this story irresponsibly implies there’s actual truth there…

    trespassing is not citation-eligible, so if there’s a Peeping Tom on your property, and SMPD won’t arrest them, that’s the fault of your police department, not the ordinance

    how is it germane the percentage of arrests that were eligible for citation? no one is urging for SMPD to cite people who are not eligible for citations! why not report actually relevant statistics, like: SMPD data indicates they arrested 77% of the time in 2019 for citation-eligible offenses

    1. Buckley,

      We understand Mano Amiga and you are very passionate about this issue. We have followed the Criminal Justice Reform movement over a year now and have been able to provide people with the views of your organization, the public and even many local elected officials. However, during the last city council meeting where this was discussed, Chief Klett briefly expressed law enforcement’s concerns. This article was written with the intent to understand the law enforcement’s side of the story as the other narrative has been told multiple times. Unfortunately, not everyone could attend the committee meetings, so there are lot of people who did not fully understand. SMPA’s concerns were also difficult to articulate.

      In the incident example described in the article with the Peeping Tom, the victim was a resident of an apartment complex. Unless the suspect physically entered her apartment, they would be charged with loitering, not trespassing; a trespassing charge would require the complex to file the report. We apologize if this was unclear.

      1. thank you, Terra.

        a few other items to note:
        * Travis County’s cite & release resolution, formalizing their program, didn’t go into effect until Nov 2018, so the 2018 numbers for Failure To Appear are irrelevant
        * I do hope you’ll look into the county/city dynamics here and realize SMPOA is full of it. When the D.A.’s proposed diversion program is up & running — and while it can & hopefully will go further, Wes Mau deserves credit in my opinion for what’s so far been put on the table — then citations can be routed through that office, but it’s laughable that San Marcos, or Kyle, needs to wait for that program before take action immediately, because of course they don’t. Even SMPOA says they’ve already been doing limited Cite & Release (in about 23% of eligible opportunities last year) & that certainly didn’t require the DA’s diversion program to be underway…

        I do appreciate your story acknowledging “the ordinance does allow officers to use their discretion” & explaining the “disqualifying circumstances” provision because several SMPOA leaders have claimed the ordinance “takes away discretion,” which is not true. The ordinance guides officer discretion. SMPOA even persuaded the San Marcos Daily Record for a while that this was true, and a poll asking about whether the ordinance should take away officer discretion nonetheless got 63% support from respondents — even though the ordinance isn’t nearly that extreme!

        Seems like the community is tired of excessive (& expensive) arresting…

        1. also, SMPOA’s concerns may be “difficult to articulate”, as you say, because they BOTH argue that “The police officers association is not against what they’re doing; they want to see more cite and release, and we’re certainly on board with that” & then, also, they list a bunch of reasons why Cite & Release is a terrible idea…

          1. I intend to continue researching the programs implemented by other counties and municipalities. I am still waiting for responses regarding Travis County, so I didn’t want to include them just yet. I will keep looking into it. I hope to put something out that breaks down SMPD’s report in the future, but I want to make sure I understand it correctly first before I try explaining it to anyone else.

            Just for clarification: SMPOA’s objections were regarding the implementation of cite & release measures as an ordinance; they have no objection to it being passed as a resolution. From my understanding, the concerns they are expressing arose because the process to change a law is longer than it is to adjust a resolution if something comes up that needs to be addressed. But again, that was just my understanding.

          2. Mr. Buckley,

            Much as I don’t approve of you, I’ve got to admit how you’ve got the advantage in this discussion. YOU are coming from one position. Your opponents are coming from all over the place. Or as Jack Kennedy once said about Richard Nixon, “I feel sorry for that SOB, because every morning he’s got to figure out which Richard Nixon he is today.”

            James Reece

  4. I agree. During the last city council meeting on it, it felt like the majority of the Council Members brushed off the police department’s concerns regarding the implementation as an ordinance. It felt like Rockeymoore didn’t want Interim Police Chief Klett to share his opinion or the departments’ concerns.

    Officers have to provide the probable cause as justification for the arrest already by state law. They’re going to put everything they can under probable cause to justify their actions. What else are they going to say for the city’s “justification requirement?”

    I don’t know about anyone else, but I’m not a police officer. I don’t know the full scope of what they deal with every day; I’m not there with them on the streets. I also don’t know the ins and outs of the laws as they are trained to enforce. If I were on the council, I would want to implement something that the department who has to enforce it agrees with as well as the rest of the community.

    Austin passed its Cite & Release program in 2013, and they are still adjusting it as they figure out what works and what doesn’t. It’s not going to be perfect from the start, and it will take at least a month to change if necessary. In that time, that broken aspect will continue to impact people in the community.

    However, I understand the other side of the issue too. I recognize it is personal, and there is suffering that has occurred because of a broken system. Being arrested has a negative impact on many careers, and it is especially damaging for situations that might be a misunderstanding or could have been handled through a citation.

    If you break the law, you should face the consequences; it’s how society works, but those consequences should reflect the crime. As long as responsibility is taken and safety is not jeopardized, I don’t think it’s necessary for someone to go to jail for one night. And I don’t think people should be penalized or “victimized” for their situation financially or otherwise.

    Officers are trained to enforce the law, and good officers follow the law in order to do so. If this passes, I’m not going to blame officers for following it to the letter. It’s the only way they are going to be protected when something goes wrong. The implementation of an ordinance just seems backward to me.

    Who releases the season finale before the rest of the season’s episodes have laid the plotline’s foundation?

  5. I believe that most people do not understand the consequences of cite & release. IMHO

    1-Why do we have law enforcement? To protect the public…right? Not with cite & release!
    How can you protect the public when you have a Peeping Tom/Stalker who gets caught two blocks away from a victim’s home who called the police? #SMTX Cite & Release says you give them a citation, court date, and let them go. Then you have to go and inform the victim, “we gave him a ticket and a court date and let him go.” Who in their right mind believes that is protecting the public or a victim for that matter?

    2-Most people think “4 oz. of pot…no big deal.” WRONG. Most people think “4 oz.” as a couple of joints or enough loose pots for a joint or two. WRONG. Or you may think 4oz. of marijuana in relation to a measuring cup. WRONG.(see photos below)
    Not sure about anyone else, but IMHO if someone is caught with 4oz./this amount of pot…they are looking to sell/distribute. That quart-sized baggie in the photo below is 1oz! That’s not someone who plans to smoke a joint or two.

    3-Criminal mischief, graffiti, theft of property, and theft of services…All of these involve property damage or theft of services from local businesses! The money to repair/replace/covering the cost of the services given will come from the property owners or businesses!

    4-I would instead put my trust in law enforcement, who are in the middle of the situation, to make those decisions for our community. That is what they are trained to do!

    5-I personally do not trust the city council to make these decisions from the dais without experience or training in law enforcement. Additionally, the council would not be held liable as our law enforcement could be. The city council who will make these decisions should be held responsible for any damages to the victims, citizens, or businesses who were caused harm by their decisions…not the law enforcement officers that were forced to follow this insidious ordinance or resolution.

    6-Who is to say that anyone who intentionally breaks these laws will pay any fine AND show up for their court date?

    7-When someone who violates the law, whether rich, poor, white, black, brown or purple for that matter…they STILL broke the law…PERIOD. What the heck ever happened to be responsible for your decisions or action?

    8-The only thing the council will accomplish with cite and release will be to get Mano and their followers to leave them alone…for a while. That is until they want more. Groups like this won’t stop with cite & release…trust me. Just talking from experience with Mano.

  6. You are all pampered babies who want other people to suffer for crimes you could never imagine committing. You are not creative enough to create graffiti, desperate enough to steal from a liquor store, angry enough to slash someone’s tires, or cool enough to smoke weed. I hope the next time you stuff your fat * faces with Whataburger that it’s undercooked, so you can get sick and experience maybe a fraction of the pain that I feel having to read your dumb * comments. *This comment has been edited for language.*

    1. oh yes i am all that and whole lot more cool than you so dont be talking bout your pain having to read when im so cool someone else reads it to me

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