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.
- Class C misdemeanors other than public intoxication, assault, or family violence.
- Possession of Marijuana less than 4 oz, Class A or Class B misdemeanor
- Driving while License Invalid, Class B misdemeanor
- Criminal Mischief, Class B misdemeanor
- Graffiti, Class A or Class B misdemeanor
- Theft of Property, Class B misdemeanor
- 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