PLEASE NOTE: Nothing in this publishing or on this website should be taken as legal advice.
Hays County District Attorney Cancels Predecessors Request for Attorney General Opinion on Marijuana Enforcement
The outgoing Hays County District Attorney, Wes Mau, requested an attorney general opinion concerning questions related to the enactment of a municipal ordinance purporting to eliminate the enforcement of certain drug laws within the municipality.
The Texas Attorney General requested Kelly Higgins, the newly elected Hays County District Attorney, if he needed the opinion:
Section 402.045 of the Government Code prohibits this office from issuing a written opinion to a person other than an authorized requestor. Construing that provision, the longstanding policy of this office has been to refrain from issuing an opinion to a requestor who, although authorized when the opinion request was made, is not authorized when the opinion is issued. Thus, when the individual holding the requestor’s position changes while an opinion request is pending, our practice is to notify the requestor’s successor of the pending request. While we may not issue an opinion to your predecessor, we can issue the opinion to you if you confirm that you would like this office to proceed with the request.Re: Request for Opinion RQ-0489-KP, Dated January 23, 2023, From Charlotte M. Harper, Acting Chair, Opinion Committee
The letter sent to the current Hays County District Attorney was also sent to various other individuals:
Re: Request for Opinion RQ-0489-KP, Dated January 23, 2023, From Charlotte M. Harper, Acting Chair, Opinion Committee
- Mr. Steven C. McCraw, Director, Texas Department of Public Safety
- Mr. Phillip Adkins, General Counsel, Texas Department of Public Safety
- Mr. Charley Wilkison, Executive Director, Combined Law Enforcement Associations of Texas, Inc.
- Mr. Robert Leonard, General Counsel, Combined Law Enforcement Associations of Texas, Inc.
- Mr. Steve M. Westbrook, Executive Director, Sheriffs’ Association of Texas
- Mr. Robert Kepple, Executive Director, Texas District & County Attorneys Association Ms. Diane Burch Beckham, Staff Senior Counsel, Texas District & County Attorneys Association
- Mr. Bennett Sandlin, Executive Director, Texas Municipal League
- Mr. Kevin Lawrence, Executive Director, Texas Municipal Police Association
- Mr. Randy Doubrava, General Counsel, Texas Municipal Police Association
- Mr. Greg Minton, President, Texas Police Association
- Chief James McLaughlin, Jr., Executive Director & General Counsel, Texas Police Chiefs Association
- Ms. Amy Cresap, General Counsel Division, Office of the Governor
The Hays County District Attorney Responds to the Inquiry
The request to confirm if the opinion was still needed was sent on January 23, 2023. On the same day, Mr. Higgins, the Hays County District Attorney, responded:
From: Kelly Higgins
Sent: Monday, January 23, 2023 12:02 PM
To: OPINIONCOMMITTEE Subject: RE: RQ-0489-KP status
I have received your query regarding the request for an opinion.
I am unaware of Mr. Mau’s intent in making his request, and I do not require an opinion from your office. Thank you for reaching out.
Respectfully, Kelly HigginsPublic Information Request No. R016627, Texas Attorney General’s Office
The Request for Opinion Referenced the Newly Enacted San Marcos City Ordinance
In the request for opinion, sent by the outgoing Hays County District Attorney, were parts of the city ordinance related to marijuana enforcement:
ARTICLE 4. – MARIJUANA ENFORCEMENT
Sec. 54.101. – Ending citations and arrests for misdemeanor possession of marijuana. (a) San Marcos police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses, except in the limited circumstances described in (b).
(b) The only circumstances in which San Marcos police officers are permitted to issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana are when such citations or arrests are part of (1) the investigation of a felony level narcotics case that has been designated as a high priority investigation by a San Marcos police commander, assistant chief of police, or chief of police; and/or (2) the investigation of a violent felony.
(c) In every instance other than those described in (b), if a San Marcos police officer has probable cause to believe that a substance is marijuana, an officer may seize the marijuana. If the officer seizes the marijuana, they must write a detailed report and release the individual if possession of marijuana is the sole charge.
(d) San Marcos police officers shall not issue any charge for possession of marijuana unless it meets one or both of the factors described in (b).
Sec. 54.104. – Prohibition against City police using the odor of marijuana or hemp as probable cause for search or seizure. (a) San Marcos police shall not consider the odor of marijuana or hemp to constitute probable cause for any search or seizure, except in the limited circumstances of a police investigation pursuant to § 54.101(b).
Sec. 54.106. – Discipline.Public Information Request No. R016627, Texas Attorney General’s Office
(a) Any violation of this chapter may subject a San Marcos police officer to discipline as provided by the Texas Local Government Code or as provided in City policy.
New Hays County District Attorney Provides Opinion on Marijuana Enforcement
In an email response from the Hays County District Attorney, Mr. Higgins states the following related to the marijuana enforcement policy of his office:
All cases are reviewed on a case-by-case basis. While there is a de-emphasis on misdemeanor POM [Possession of Marijuana] charges, that does not preclude filing charges where our office deems it appropriate. There is no policy as to POM or other THC-related [Tetrahydrocannabinol] cases. The refusal of DPS [Texas Department of Public Safety] labs to analyze cannabis for THC content impacts any actions our office might take in such cases. That refusal was issued in January 2021 as I recall. I was not then in this office, as you know.e-Mail dated March 20, 2023, from Hays County District Attorney Kelly Higgins
It appears the Hays County District Attorney will not completely close the door on processing marijuana cases, but definitely does not want to tie up resources dedicated to the prosecutorial practices, if they do not meet a threshold.
We have requested the possession of marijuana cases filed with the Hays County District Attorney’s Office and will have more to share in a future publishing.
A Couple of Our Other Reads
You may be interested in reading about the Hays County District Attorney’s opinion on cannabis reform prior to taking office.
Or you may find our publishing on the Hays County District Attorney’s campaign concepts of interest.
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