Will Bexar County Ever Budge On Pot? The Answer Is Still 'Maybe'

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At the Texas Capitol this week, advocates pushing for marijuana reform rallied around House Bill 81, which would effectively decriminalize possession of up to an ounce of marijuana. They point to the sea of change in how states across the country approach cannabis (26 states and the District of Columbia have legalized the plant in some form), as well as surveys that continue to show an overwhelming majority of Texans support changing pot laws.

But even without a measure like HB 81, Texas cities could decriminalize pot on their own if they wanted to — sort of. That's because of a state law the Texas Legislature passed in 2007 that gave local cops the discretion to simply cite, rather than arrest, certain low-level misdemeanor defendants, like those nabbed for small-time pot possession. While Austin started down that road in 2012, and Dallas started to fiddle with the idea in 2013, Harris County upped the ante this year by pretty much decriminalizing all misdemeanor marijuana cases.

But here in Bexar County, District Attorney Nico LaHood says he and other San Antonio-area law enforcement officials are still thinking it over. "Our office has been in discussion on this for some time now," LaHood told the Current on Tuesday.

No kidding. In his first run for DA in 2010, which he narrowly lost, LaHood offered general support for a system of citing, rather than jailing, low-level pot smokers. Then, after he won in 2014, he told us he was still exploring the issue. Then in summer 2015, LaHood again reiterated his "support" for such a program in an interview with KSAT. Ditto when KENS asked about it a year later.


Same in our interview with him on Tuesday: "I've been a big supporter of cite and release."

LaHood still maintains, however, that you can't just take what other counties have done and apply it here. In particular, he said Harris County's new system for handling pot possession cases could present "some unforeseen consequences" down the road.

Starting this month in Harris County, the state's largest jurisdiction and the country's third-largest county, anyone caught with less than four ounces of pot won't face arrest or jail time, but will instead have to pay $150 fine and take a "decision-making" class within 90 days of the offense. The idea is that not only do cops and courts save time and resources, but that the defendant also avoids a criminal charge entirely — which could otherwise threaten someone's job, housing or student financial aid.

Still, LaHood cautioned that such an approach could lead to "legal advice on the side of the road" because cops have to explain the process to defendants before issuing the ticket ("I don't divorce myself from my experience as a passionate defense attorney," was his explanation Tuesday). LaHood also says he's unsure of how the county would track and handle such cases without spending even more money.

But some of LaHood's other comments seem to call into question whether he supports any kind of pre-charge marijuana leniency, as has now been rolled out in Harris County. "When a DA starts circumventing the law, it's a slippery slope," he told the Current. Here's how he explained his concern: "Where does it stop? If a 17-year-old can consent to sex (the current legal age of consent in Texas), then what if someone says, well, these days, a 16-year-old can consent, too? And then a 15-year-old, and then, if it goes far enough, there's no order."

LaHood insists his office has budged on pot to some extent, saying he's expanded pre-trial diversion options for low-level pot offenders and that officials quickly bring defendants before a magistrate so they don't languish in jail. "No one's in jail in Bexar County for a [misdemeanor marijuana possession] case, period," he told us.

But that seems to miss the point of why a program like Harris County's was implemented in the first place — as both a practical cost-saving approach and humane way to blunt the consequences of the failing war on drugs. In Harris County, pot smokers caught toking have 90 days to pay a $150 fine (or show they're too poor to pay it) and complete a 4-hour substance abuse class before criminal charges are filed. In Bexar County, you might get the option to clear things up after you've already been arrested — and suffered all the consequences that might follow.

All of which means that not only do we have a patchwork system of marijuana laws across the nation, we have one here in Texas, too. Testifying before a Texas House committee on Monday, Nick Hudson with the ACLU of Texas said that a county-by-county approach only exacerbates inequalities that we already know exist within the criminal justice system.

Hudson told lawmakers that despite roughly identical marijuana use rates, African-Americans in Texas are more than twice as likely to be arrested for pot possession as white people. It's a criminal charge that also, no surprise, skews young — some 62 percent of marijuana arrests in Texas target people under the age of 24. And now the consequences of pot smoking in Texas, which can be incredibly harsh, also depend on where you live within the state.

"Today in Texas, the county you live in and the color of your skin seem to be related to how severely you're punished for the possession of marijuana," Hudson told lawmakers.

Meanwhile, when it comes to pot policy, LaHood said he's urged his fellow DA's across the state to follow this advice: "Don't play legislator. Make sure you stay focused on being the DA. But use your discretion wisely."

So we asked him what he thought about a measure like HB 81 (which was left pending in committee Monday) that would change how small-time pot possession is charged across the state.

"That wasn’t part of our legislative agenda," he said. "Nobody in the county has talked about that one."
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