Surge in Minor Marijuana Possession Dismissals Sweeps Texas, But Not All Counties Are Equal.

In September of 2016 the Austin American broke a surprising story to those who aren’t in the legal field[1]. The report found that in Texas’s largest populated counties, Dallas, Harris, Travis, Bexar, and Tarrant, over 40% of minor possession of marijuana cases where bring dismissed. The report also found that prosecutors where actively discouraging police arrest through policy or practice.
Specifically, the report found that, since 2011 there has been a large upsurge in the number of dismissals from 9% on average overall in 2011 to 41% in 2016. Prosecutors quoted about this upsurge stated simple reason for the change in policy. “Jurors would look at us like we are crazy,” Travis County prosecutor Dan Hamre told the newspaper. “‘You are spending your time, our time and the court’s time on a small amount of personal marijuana?’ “[2]. The report identified changes in policies, that had lead to the upsurge, and highlighted the irregularity in these numbers across different counties.

Policy Changes, and Legal Changes
Various changes in prosecutor’s policies have led to the increasing number of dismissals. Some District Attorneys’ offices have just refused to take charges for minor possession, killing the case before it even begins. Harris county has seen a drop fueled by the implantation of the “First Chance Intervention Program.” Under the previous leadership of Devon Anderson[3].

Harris Counties first chance intervention program has led to a marked decrease in the number of minor marijuana possession cases. The program allows for pretrial diversion for those who have been arrested for minor marijuana possession, and who have no other criminal record. Instead of being arrested, the person is fingerprinted and given a date to appear before a pretrial service. After an interview the probation length is set at between 30 and 90 days, after which time if the person is not arrested again, the charge is dismissed and there is no criminal record[4].

The 2016 Harris Counties DA’s race between Devon Anderson and Kim Ogg[5] showcases this trend toward dismissals, with both candidates competing with each other to be more lenient with minor marijuana possession in their race[6].

As of January 2017, Kim Ogg has won the race for Harris County DA. Kim has pledged to refuses charges for minor marijuana possession alone. She is quoted as saying “I’ve never felt good about putting marijuana users in the same jail cells as murderers. It’s just not fair, it doesn’t make any sense, and our country is resoundingly against that.[7]” she further pledged “All misdemeanor possession of marijuana cases will be diverted around jail.”. Kim Oggs position has been supported by the new HPD police chief Art Acevedo who stated “We absolutely believe in (reform), that we want to push for it, but not just at the federal level, but at the state level as well.”[8]

Tarrant County and Dallas county have seen a surge of dismissals fueled by shifting prosecutorial priorities, with the DA’s office heavily prioritizing serious crime over minor possession. The Dallas city leadership has also considered adopting a city wide cite and release program. While this particular measured failed to pass in March of 2016[9], the prosecutor’s office and the sheriffs office appear to have taken these efforts as an indication of how the city wants to approach the issue and have responded by lowering the priority for these offense considerably. The trend in Dallas has also been fueled by the resignation of embattled DA Susan Hawk who had sought to buck the state wide trend under her leadership[10].

Travis county, home of the Austin has seen a increase in the number of dismissals through a combination of prosecutorial discretion, and the widespread adoption of the cite and release program[11]. Made possible by HB 2391 passed back in 2007[12], Travis county, and soon Williamson county[13], adopted a cite and release program. These program, allowed under state law consist of officers having the discretion to write a citation for possession of up to four ounce of marijuana. Once cited, the ticket would have a court date which the offender was to appear before, and usually pay a fine or undergo community service. However, while Travis has seen a rise in the number of dismissals; hitting a high of 50% in 2016[14], the cite and released program has also left thousands of cases pending, with upwards to 40% of offenders failing to appear[15].

Other factors pushing the number of dismissals are vigorous legal defense with firms specializing in minor possession cases. With prosecutors unwilling to push for trials, juries unwilling to convict, and police forces increasingly willing to reallocating resources towards other crimes, marijuana possession has become a lower and lower priority for the state.

While many of Texas’s most populous counties are seeing this surge in dismissals, the cases that remain appear to involve repeat offenders, offenders with extensive violent criminal records, and offenders who are unaware and unrepresented in the crucial early phases of the criminal justice system.

However, while general trends in Texas’s population centers show a steady move toward more and more dismissals, Texas’s rural counties have not uniformly followed suit. Specific counties such as Brazos have seen no increase in the number of dismissals, with only 10% of cases being dismissed over the course of five years[16]. Montgomery county only sees 8% of its minor marijuana possession cases dismissed in 2015. These disparities result from different prosecutorial priorities and policies as well as a failure to adopt state sanctioned cite and release programs.

The current patchwork of prosecutorial policies, diversion programs, limited adoption of the cite and release legislation, has lead to this disparity between urban and rural counties in minor marijuana dismissals.

Further, while there has been a large surge in dismissals in Texas, the average number of marijuana arrest per year has not decreased. Texas still leads the country in total number of arrest and prosecutions for marijuana possession.[17]

With the 2019 Legislative session approaching, and both Republican[18] and Democratic[19] state representatives pledging to introduce state wide reform for minor marijuana possession hopefully these disparities can be erased. However, until reform passes the legislator, vigorous legal defense still offers the best tool for resolving minor marijuana possession.

Written by Hunter White

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.