State appeals court strikes down Austin’s marijuana decriminalization ordinance

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A Texas appeals court ruled Thursday that the city of Austin cannot enforce its law that prohibits police from citing and arresting people for carrying a small amount of marijuana. This is the second time this month that the appeals court has ruled in favor of the state against ordinances that decriminalize marijuana.

The state's 15th Court of Appeals overturned the decision by Travis County District Judge Jan Soifer, who had dismissed Texas Attorney General Ken Paxton’s lawsuit against Austin last year, ruling that there was no legal justification to try the case. The court determined the city law “abused its discretion” by putting up any barrier to the full enforcement of drug-related laws.

Last week, this same court overturned a lower court ruling that denied a temporary injunction to prevent the city of San Marcos from enforcing its voter-approved ordinance to decriminalize marijuana because it conflicts with current state law.

“Consistent with the City of San Marcos, we conclude that the ordinance in this case is also preempted by state law,” according to the ruling about Austin's ordinance penned by Judge Scott Field.

This is another blow to the progressive drug movement that swept into various cities across the state. Austin Mayor Pro Tem Vanessa Fuentes called the ruling another example of the state stepping on local decisions.

"This court ruling is a huge letdown. Austin voters made their voices loud and clear in 2022, and instead of respecting that, the State has chosen to ignore their will," Fuentes said.

The background: Austin voters approved a proposition in May 2022 to allow the possession of 4 ounces or less of marijuana. Police already weren't arresting people for low-level possession, in part because it was difficult to differentiate marijuana from hemp, which was legalized in 2019.

Voters in four other cities — San Marcos, Killeen, Elgin and Denton — also approved policies policies that would end arrests and citations for possession of less than four ounces of marijuana. An initiative spearheaded by Ground Game Texas — the progressive group that first launched the proposition in Austin — worked with local organizations in the other cities and succeeded in pushing for similar policies to appear on the ballots.

Why Texas sued: Paxton filed the suit in 2024, alleging Austin was violating state law and promoting "the use of illicit drugs that harm our communities." He filed similar suits against San Marcos, Killeen, Denton and Elgin, which also decriminalized pot.

Paxton argues the Texas Local Government Code forbids them from adopting policies that would result in not fully enforcing drug-related laws. Paxton is seeking to repeal the city's ordinances and make them enforce state law.

What has happened in the courts so far: Hays County District Judge Sherri Tibbe dismissed Paxton’s lawsuit, upholding the argument that the state was not injured when San Marcos reduced arrests for misdemeanor marijuana possession and that it allowed for resources to be used for higher-priority public safety needs.

The Office of the Attorney General appealed this decision. In February, the case was assigned to the 15th Court of Appeals, where the state's attorneys argued that the San Marcos ordinance obstructed the enforcement of state drug laws. The city argued the policy was voter-driven, but the court disagreed, granting the temporary injunction while litigation continues.

Travis County District Judge Jan Soifer dismissed Paxton’s lawsuit against Austin last year, ruling there was no legal justification to try the case.

Both Tibbe and Soifer's rulings have now been overturned by the 15th Court of Appeals.

This puts the fate of the ordinances in doubt and some cities have already given up on trying to fight the state.

Paxton’s lawsuit against Elgin was resolved last summer via consent decree, meaning neither side is claiming guilt or liability but has come to an agreement.

In the North Texas suburb of Denton, where voters approved decriminalization by more than 70%, the implementation of marijuana decriminalization has stalled after City Manager Sara Hensley argued it couldn’t be enforced since it conflicted with state law.

The case against Killeen, which was filed in Bell County a year ago, is still pending.

Broader impact: The future of THC products in Texas is uncertain. Currently, lawmakers are debating Senate Bill 3, which would ban any consumable hemp products that contain even trace amounts of THC, as well as House Bill 28, which would ban synthetic THC and products like gummies and vapes. The House’s proposal focuses more on tightening regulatory loopholes, allowing hemp-infused beverages and assigning the alcohol industry to regulate those products. HB 28 would also limiting the consumption of such products to those 21 years or older and implement advertising regulations.

Lt. Gov. Dan Patrick said he would move to force a special legislative session if lawmakers fail to pass the ban during the current session which ends June 2.

"Kids are getting poisoned today," Patrick told the Senate earlier this year.

Earlier this week, the Texas Senate passed Senate Bill 1870 that would ban any local entity from putting a drug decriminalization ordinance on the ballot for approval. The House will take up the bill next.