SMTX One Step Closer To Becoming First Texas City To Pass Cite & Release As Law

By Terra Rivers | Managing Editor

On Tuesday, the San Marcos City Council approved an ordinance on the first of two votes supporting the police department’s increased use of the cite and release process when appropriate.

During the meeting, city staff read the written statements submitted by residents for the regular public comment period.

Linda Alexander was the first of at least ten residents, who submitted written statements for public comments speaking against the implementation of cite and release through an ordinance.

“I have followed the cite and release issue for the last several months and researched its use in several cities and states,” Alexander said. “I believe San Marcos is not ready to adopt a C&R ordinance yet. I do, however, as a result of my research, support further investigation into its purpose, implementation, and consequences.”

Alexander said her primary concern was that the community and officials should “always hold trust in police officers to uphold the law and give them the authority to take whatever actions they deem necessary to protect and serve” the community.

The Ordinance allows the city to accept other forms of identification than a government-issued ID, including “utility or rent bills” or other forms of identification that included an individual’s name and address.

Crystal Benavides expressed concern about allowing defendants to use identification methods that do not require a photograph to confirm their identity.

“The identification portion of this ordinance is very troublesome,” Benavides said. “As a notary public, identification is a big portion of holding my oath to the office; I have to be sure beyond a reasonable doubt that the person signing before me is who they say they are. This is done to protect the public and to ensure that fraud is not occurring.”  

Benavides said the portion regarding identification made her feel that the council was taking law into their own hands and superseding state law, which requires anyone over the age of 18 to have identification.

“There is no reason a person living or going to school in this city or county is not capable of obtaining proper documentation,” Benavides said. “Many of the clients that come to me for a notarization or to purchase are not legal citizens and are still able to get a state-issued ID called a matricula consular.”

Other concerns addressed by residents included

• Section 2 Paragraph 1, which grants officers the discretionary powers granted by the Texas Code of Criminal Procedure & Paragraph 2, which states that discretion can be used for any of the following circumstances.
• Lack of limitations on repeat offenses
• Legal concerns addressed by the city attorney to the council of unintended consequences and potential violations of state law
• Failure To Appear
• Officer’s loss discretion

On April 3, the Hays County District Attorney sent the council a letter via email urging the council to not enact the proposed Ordinance regarding Cite & Release citing six reasons.

Wes Mau said, “I agree with the Criminal Justice Reform Council Committee, as set out in their background memo that a resolution is a more appropriate action for the Council to take, for many of the same reasons set out in their memo.”

*In his letter to council, Mau stated that 4 oz of marijuana is the equivalent of 200 joints. *

Mau’s reasons are as follows (Read Full Letter With Explanations):

• Serious Offenders will be released under the Ordinance
• Passing the Ordinance will result in more people in jail, not less.
• Ordinance 2020-18 Violates TCCP 14.06
• The Ordinance is unnecessary
• The Ordinance risks unnecessary and potentially harmful evidence suspension in serious cases
• A resolution is a better action for the council to take

While only two people spoke in favor of the Ordinance Tuesday night, many people in the community have expressed their support for it on social media and at previous meetings.  

At Council’s March 3 meeting, at least 12 people signed up to speak in favor of the Ordinance with additional supporters in the crowd.  

The full report and demographic breakdown of the data can be read here; instructions on how to read it are in the memo attached to it.  

Mayor Jane Hughson opened the discussion stating she supported the use of Cite & Release when and where it makes sense as determined by trained police officers; however, she did not support it as an ordinance.

“I certainly listened to those who support cite and release as an ordinance as it’s presented before us, and I understand a number of their concerns,” Hughson said. “And I think many in our community support citations in certain cases.”

Hughson said she was concerned the Ordinance may have several unintended consequences and that the council was moving forward with the measure before the county had completed their work on adjusting policies, personnel, and other infrastructure-related issues on their end.

Hughson told the council she would be presenting an amendment regarding the documentation accepted for identification purposes at the second recording of the Ordinance.

“As it is written now, the way it reads to me, that someone can show a utility bill, and you don’t even know if that’s the person who is handing it to you,” Hughson said.

According to Hughson, her suggestion is that the city seeks an ID card that has photo identification, and if that photo ID doesn’t provide an address, the city also requires a document such as a utility bill that does.

Under the TCCP, individuals are only eligible for cite and release on offenses committed within the county in which they are a resident.

“I see the intent thereof having a clear form of identification,” Council Member Maxfield Baker said. “But we know that ID laws have consistently been a contentious issue for a member of the public because they do create a financial barrier. If it was like a social security card and everyone was issued a photo ID for free by the US or Texas government, I would support that. But given the range of opportunity that it has to negatively impact the lower-income members of our community, I think that any form of ID including a utility bill should be sufficient.”

Interim Police Chief Bob Klett explained that the Texas law allows for cite and release on marijuana amounts up to 4 oz, which is generally about the size of a gallon-sized ziplock.

“The reason 4 oz is the number in the state law is because the state law was intending to focus on certain class A and B misdemeanors,” Chase Stapp, Director of Public Safety, said. “And Texas law possession of marijuana at 4 oz is a Class A misdemeanor. But I think the point some folks are just trying to make is that it’s well beyond the personal amount.”

San Marcos City Attorney Michael Cosentino noted that Section 2’s use of the word “only” for under what circumstances officers could use their discretion to arrest instead of cite and release created a limitation for officers.

Cosentino said the list of six circumstances that the Ordinance provided allowing officers to deviate from the cite and release program was “pretty comprehensive,” but there could be some outlier situations that fall outside those six items that would be violating the Ordinance if an arrest was made.

“An officer couldn’t be criminally prosecuted for that,” Cosentino said. “An officer would be acting outside of the ordinance if they arrested an individual under circumstances that did not meet those exemptions.”

The council originally voted 3-4 to amend the Ordinance and remove the word “only” with council members Hughson, Ed Mihalkanin, and Saul Gonzales voting for.

Council Member Melissa Derrick said the police department has been working with the city for the last year, but she supported the Ordinance because the state law allowing officers to utilize cite and release has been in effect since 2007, “Yet the needle has not moved.”

She felt if the council put this in ordinance form, it goes further and gives whoever the police chief is the leverage to get compliance and understanding from all San Marcos Police Officers, Derrick said.

Derrick said she felt like officers and the San Marcos Police Associations statement that they are going to advise officers to default to citing and releasing for all eligible offenses overusing their discretion was a threat and pushing back on change.

“I know change is hard, but I think this is the change that is well worth it,” Derrick said.

Klett said the San Marcos Police Officers Association does not set policy for the police department; he does. The Police Officer Association, as its own private entity, is looking out for the best interest of the officers.

Cosentino explained while the officer is not opened up to being criminally liable, the establishment of an ordinance does open the city and the arresting police officer up to civil lawsuits.

In a civil lawsuit, with an ordinance in place, Cosentino said the city would be protected with the defense that they had established an ordinance for the officer to follow. However, the officer would not have the city as a defense in a civil suit.

“The fact that it’s an ordinance relates to an officer’s defense in a civil rights case,” Cosentino said. “It goes to the question of whether the officer has immunity for exercising the powers of his or her office in good faith. If an officer, in making an arrest, violates a law that is clearly established at the time, then that undermines a good faith immunity defense.”

Cosentino said the council voted on an amendment, which passed unanimously, for section 2 #3, which was his attempt to minimize to the extent possible but not eliminate the possibility of an officer being sued for a civil rights violation because of an arrest.

“It is important in that context whether an ordinance is adopted versus a resolution,” Cosentino said.

The council approved a second motion to amend the Ordinance and remove the word “only” from section 2. The motion passed 4-3 the second time with council members Jocabed Marquez, Mark Rockeymoore, and Baker voting against.

The Ordinance was approved on the first of two readings with a 4-3 vote with Hughson, Gonzales, and Mihalkanin voting against.

“Anyone who does not see the inherent issues in our criminal legal system frankly has not experienced it or probably doesn’t know somebody who has experienced it and has been seriously impacted,” Baker said. “I think it’s incredibly important when we think about the questions of restitution and the purpose of our legal system, we need to recognize the criminal legal system is in large part set up and funds itself. Private prisons and police officer associations have every reason to work together.”

Baker continued, “The numbers show some of the members of our community are being disenfranchised, and the purpose of this ordinance is to take care of more people and save more families long term tragedy.”

“I have worked with this along with my colleague, Council Member Rockeymoore, going back last summer,” Mihalkanin said. “We have discussed for a lot of time the issue between Ordinance and resolution. Even though, the state law going back to 2007, it seems to me we would still be the first municipality in the state of Texas to pass this as an ordinance. And if it had been that many years and no city had passed it following the state possibilities, I’m not comfortable for us being the great experiment. I totally support this document as a resolution. I think it would give us a year to review things, and then we could see what we needed to do for any changes to help our community.”