SMTX Becomes First Texas City To Approve Cite & Release Ordinance

Staff Reports

The City of San Marcos has become the first Texas city to pass a cite and release ordinance.

After nearly three hours of discussion on Tuesday, the council voted 4-3 with council members Ed Mihalkanin and Saul Gonzales and Mayor Jane Hughson voting against.

Over the course of the meeting, several amendments were proposed by council members.

Here is a list of the amendments that passed.

• Amend Section 1 to include the Texas Health and Safety Code and Texas Penal Code Articles and remove Driving While License Invalid as a Class A misdemeanor from the list of eligible offenses. It passed 7-0.
• Amend Recital #4 in the ordinance to correct reference to Article 14 of the Texas Code of Criminal Procedure from 14.08 to 14.06. It passed 7-0.
• Direct staff to convert ordinance into “Standard Ordinance” Formatting without changing language. (6-1) It passed with Councilmember Jocabed Marquez voted no.
• Amend Section 2 to remove all but the first two sentences of item 2, providing examples of address identification. (6-1) It passed with Councilmember Marquez voted no.
• Amend Section 2 to restore the word ‘only’ in the last sentence of paragraph 2, providing circumstances in which cite and release may not be appropriate, and an officer’s discretion may be used. (4-3) It passed with  Mihalkanin, Gonzales, and Hughson voted no.
• Amend Section 5 to remove a citizen comment agenda item from the Police Chief’s Advisory Panel and stakeholder meetings to “not limit” the participation of the public. (4-3) It passed with Mihalkanin, Gonzales, and Hughson voted no.
• Amend Section 1 to lower the eligible offenses valued damages for Graffiti, Theft of Property, criminal mischief, and theft of services from less than $750 to less than or equal to $350. (5-2) It passed with Councilmembers Marquez and Maxfield Baker voted no.
• Amend Section 7 to move the effective date from immediately upon approval to May 31 to allow SMPD opportunity to establish a policy and understanding of the ordinance before implementation. It passed 7-0.

Hughson said the community had asked for the council to provide their direction to the police department, and that is what they were doing.

Per the ordinance, the San Marcos Police Department will increase the use of the cite and release process rather than arrest in appropriate circumstances for individuals suspected of committing the following offenses:

1. Class C misdemeanors other than public intoxication, assault, or family violence.
2. Possession of Marijuana less than 4 oz, Class A & Class B misdemeanor, Texas Healthy, and Safety Code 481.121(b)(1)&(2)
3. Driving while License Invalid, Class B misdemeanor, Texas Transportation Code 521.457
4. Criminal Mischief, Class B misdemeanor, in an amount equal to or less than #375, Texas Penal Code 28.03(b)(2)
5. Graffiti, Class A or Class B misdemeanor, in an amount equal to or less than #375, Texas Penal Code 28.06(b)(2)&(3)
6. Theft of Property, Class B misdemeanor, in an amount equal to or less than #375, Texas Penal Code 31.03(e)(2)(A)
7. Theft of Services, Class B misdemeanor, in an amount equal to or less than #375, Texas Penal Code 31.04(e)(2)

Councilmember Mark Rockeymoore addressed allegations that the ordinance would allow suspects of repeat offenses to go unpunished.

“This is more fear-mongering; people are not going to get away with stealing something over and over again,” Rockeymoore said. “That’s not going to happen; people are going to get arrested if they steal twice or three times. It’s up to the officer’s discretion; the officer continues to have discretion.”

Section 2 of the ordinance states, “The City Council recognizes that use of the cite and release process may not be appropriate in all circumstances and that SMPD officers may exercise their discretion to issue a written or verbal warning in lieu of issuing a citation or making an arrest for a person suspected of committing any offense listed in Section 1.”

The second paragraph introduces six circumstances in which cite and release may not be appropriate and in which the officer is allowed to arrest a person suspected of having committed the eligible seven offenses.

The City Council further recognizes that the use of the cite and release process may not be appropriate in all instances and that SMPD officers may find it necessary to arrest a person suspected of having committed any of the above-listed offenses only if any of the following circumstances are present:

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.
3. The arresting officer believes that the safety of persons (including the subject) would be imminently endangered by the release of the subject. In making this assessment, the arresting officer believes 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.

“I made a huge amendment change that took the word only out, hoping that would appease the San Marcos Police Officer’s Association,” Derrick said. “And they would then do street diversions instead of punishing our citizens. I made a compromise, and they put out a hit piece.”

Derrick is referring to a paid advertisement that published on Corridor News’ website after the initial vote on the ordinance and ran through Tuesday night.

While offenders will not be arrested under the program, the citation will require offenders to appear in court and go through the legal process in order to receive a potential fine, community services, or jail time depending on the offense.

Hughson said she supports the use of cite and release but with officer discretion and not as an ordinance.

“I’ve seen unintended consequences when an ordinance is first passed,” Hughson said. “And I have fears that there could be some unintended consequences from this one. I would prefer that we give direction, perhaps a resolution, to ensure that we see how this works, and ensure that we don’t cause new problems that do not exist now.”

Rockeymoore said the council could look at those consequences if and when they arise and amend the ordinance as needed.

The ordinance requires a quarterly report from the department to be provided to the council and made public; the reports will document anonymized records of every instance that a resident was issued a citation in lieu of arrest and every instance that a resident was arrested for a nonviolent misdemeanor charge.

The suspect must fit the following items to qualify:

• Has no outstanding warrants
• Was not intoxicated and legally could have been given a citation
• Live, work, or attend school within the county limits
• Was not charged with an offense ineligible for cite and release as well

The San Marcos City Manager will work with the San Marcos Police Chief and other relevant stakeholders to update all relevant City policies and internal operating procedures. 

The ordinance will take effect on May 31 and will be placed in standard ordinance form by city staff before the effective date.