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Hays County judge hears plea to dismiss Attorney General marijuana suit

Hays+County+judge+hears+plea+to+dismiss+Attorney+General+marijuana+suit
Sarah Manning

A Hays County district judge heard a plea to dismiss the The State of Texas v The City of San Marcos case on marijuana decriminalization in San Marcos on Thursday, June 27.

The case comes after Texas Attorney General Ken Paxton filed lawsuits to overturn marijuana decriminalization ordinances in San Marcos and four other cities.

Judge Sherri Tibbe, the 453rd judicial district judge for Texas, heard arguments for a “plea to the jurisdiction,” where the city of San Marcos’ defense argued the state of Texas did not have jurisdiction to sue and the case should be dismissed.

The state’s argument was the ordinance decriminalizing marijuana violates Section 370.003 of the Local Government Code, which states cities cannot pass ordinances that will impede state drug laws from being fully enforced. The state’s attorneys argued the city violated 370.003 when they adopted Proposition A in 2022.

The defense argued Proposition A was passed by a public vote. What this means is the city had no choice in enacting the order and therefore did not violate Government Code 370.003, so the city and its officials should not lose their immunity to lawsuits.

The state’s attorneys also argued that by putting Proposition A on the ballot to begin with, city council violated the section 6.01 of the city’s charter that states a ballot measure cannot propose an ordinance that violates the city’s charter, the State Constitution or any state law.

“Local government do not have the authority to say by fiat ‘not in our town,'” State Attorney Ryan Kercher said.

Prop A was officially enacted at the Dec. 6, 2022 San Marcos City Council meeting, which the state argued that it showed city council did directly enact the ordinance. The defense’s rebuttal stated city council only approved Proposition A by certifying the November 2022 election results, which then automatically enacted the proposition.

Tibbe did not issue a ruling on the whether to dismiss the case due to the city’s “plea to the jurisdiction” while court was in session, she instead chose to review the evidence, testimony and relevant case law before making a ruling.

Tibbe also had a hearing for a temporary injunction, which would pause enforcement of the ordinance to decriminalize possession of less than four ounces of marijuana. Tibbe did not issue a ruling while court was in session, but if she rules in favor of it, it would require the San Marcos Police Department to follow state laws on marijuana enforcement.

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