A Texas appellate court ruled that San Marcos’ voter-approved marijuana decriminalization ordinance, known as Proposition A, is unenforceable under state law.
In a decision issued April 17, the newly established Fifteenth Court of Appeals sided with the State of Texas in its lawsuit against the city, mayor, city council and San Marcos police chief. The court found the ordinance, passed by more than 81% of San Marcos voters in 2022, violates Section 370.003 of the Texas Local Government Code, which prohibits local governments from adopting policies that do not fully enforce state drug laws.
“The same is necessarily true when an ordinance is held to be preempted – it is unenforceable, but it does not disappear,” according to the opinion issued by Justice Farris of the Fifteenth Court of Appeals.
Proposition A barred San Marcos Police Department (SMPD) from arresting or citing individuals for marijuana possession of up to four ounces, except under limited felony-related circumstances. The ordinance also prohibited the use of THC testing for prosecution, the use of marijuana odor as probable cause and citations for paraphernalia or residue.
State of Texas v. The City of San Marcos, filed in February 2024 by Attorney General Ken Paxton, followed months of tension over local decriminalization efforts in Texas cities. The San Marcos ordinance was part of a broader wave of voter-led campaigns in cities like Austin, Denton, Elgin and Killeen.
The court heard State of Texas v. The City of Austin in the same hearing as the case against San Marcos. The measure in Austin was struck down on Thusday, April 24.
Before reaching the appeals court, the San Marcos case was dismissed in July 2024 by Hays County District Judge Sherri Tibbe, who ruled the Texas Attorney General’s Office lacked jurisdiction to sue the city over Proposition A. The Office of the Attorney General appealed the decision the next day, allowing the case to proceed.
In February, the Fifteenth Court of Appeals heard arguments in which the State claimed San Marcos’ ordinance illegally blocked enforcement of state drug laws. City attorneys argued the policy was voter-driven and still allowed police discretion in certain cases.
The appeals court’s April 17 decision reverses the lower court’s dismissal of the case, rules that the city and its officials are not immune from suit and grants a temporary injunction blocking enforcement of the ordinance while litigation continues.
In a press release, local advocacy group Mano Amiga Action called the ruling “a deeply troubling move for local democracy.”
Executive Director of Mano Amiga Eric Martinez said the decision came from “a court manufactured by the same state officials bringing the lawsuit, with the express goal of silencing progressive policies that Texans are voting for at the local level.”
Catina Voellinger, executive director of Ground Game Texas, another group that garnered petitions for the proposition in 2022, expressed a similar disdain toward the court’s decision.
“Texans have made their voices heard at the ballot box again and again: they don’t want their money going towards unnecessary arrests,” Voellinger said in the press release. “This ruling is proof that the state isn’t working to make communities safer – it’s working to crush people-powered movements.
Amy Kamp, the communications manager for Ground Game Texas, said the group has added a clause to recent marijuana decriminalization ordinances that would require local police departments to prioritize serious and violent crimes over marijuana possession offenses if the measure is overturned.
“That clause is not in the San Marcos ordinance,” Kamp said. “I think it would have to be something either the city council passed or the voters asked for.”
According to an email Kamp sent to The Star, Ground Game feels cities, such as San Marcos, are arguing well in court, so they don’t feel the need to support them with amicus curiae, or “friend of the court” briefs.
Neither Prop A nor the court’s decision would affect the university, as Texas State falls under state jurisdiction and operates its own police department, which is required to follow state law regardless of city ordinances.
In a statement emailed to The Star, Nadine Cesak, communications and IGR manager for the city of San Marcos, said the city was reviewing the courts ruling.
“The City cannot enforce the ordinance pending a trial on the merits,” Cesak wrote in her email. “The San Marcos City Council is expected to meet in an upcoming executive session to receive legal advice and provide direction for moving forward. We have no additional information to provide at this time.”
