When an appeals court struck down Austin’s marijuana decriminalization ordinance late last month, confusion and disappointment flooded social media.
“So am I a criminal now?,” Reddit user Environmental_Ad3964 commented.
“So.. I’m kinda confused about what this accomplishes,” another user wrote.
Good question, u/DrDrago-4.
In the immediate future, the appeals court ruling will not change much about how the Austin Police Department has enforced low-level marijuana possession since Austin residents voted to decriminalize it in 2022, Austin Police Chief Lisa Davis said. The city’s law department is still analyzing the ruling, but for the time being, APD will continue to not hold or arrest people for marijuana possession.
“For now, we’re still going with the way we were policing before,” Davis said.
That’s in part because the appeals court ruling does not change APD's ability to decide what crimes should be prioritized. Rather, it says Austin’s city charter cannot conflict with state drug laws.
In other words, APD is allowed to prioritize higher-level crimes over small amounts of marijuana possession, but the city can’t have an ordinance saying it won’t cite or arrest residents for marijuana possession, because that conflicts with state law.
Council Member Chito Vela said APD doesn’t have the staffing or resources to pursue low-level marijuana cases anyway.
“When you’re talking about the possession of small amounts of marijuana, that may be the most common criminal offense in Austin, Texas, and virtually every other city in the country," Vela said.
APD is also unlikely to pursue low-level marijuana cases because the department can't determine the difference between hemp, which was legalized in 2019, and marijuana, which remains illegal.
Hemp and marijuana are both derived from the cannabis sativa plant and are largely indistinguishable from one another, even by trained drug-sniffing dogs, according to the Texas District and County Attorney's Association. The only difference between them is that hemp has a THC concentration of 0.3% or less, and the only way to verify that is through expensive laboratory testing the city chose not to invest in back in 2020.
Plus, the Texas Department of Public Safety — the state’s law enforcement agency — itself does not test THC concentration for misdemeanor possession of marijuana cases, according to the appeals court ruling.
But the ruling could impact marijuana enforcement down the line. Whether APD says its way of enforcing marijuana will change or not, officers once again have the ability to cite people for carrying small amounts of marijuana.
Catina Voellinger, executive director of Ground Game Texas, the organization that got marijuana decriminalization on the ballot, said the ruling has sowed confusion, doubt and uncertainty in Austin residents.
“Austin’s marijuana decriminalization policy was necessary because we know from the data that when this is up to an individual officer’s discretion, possession laws disproportionately criminalize people of color and the working class,” she said.
In 2018, the year before hemp was legalized in Texas, APD arrested a disproportionate amount of Black people for marijuana possession. That year, 36% of people ticketed for marijuana possession were Black, despite them only being 8% of the population.
“I just don’t understand why we’re continuing to discuss this issue,” Vela said. “Why does the state continue to insist on the strict enforcement of marijuana laws that no one in the state wants enforced?”
