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Two defendant intervenors joined in State Attorney General Ken Paxton’s lawsuit against the city of Elgin last week, targeting an ordinance dealing with low-level marijuana possession laws. Richard Gladden will be representing organization Chairperson Courtenay Paris and Decriminalize Elgin in the proceedings May 29 in the 21st District Court in Bastrop. The intervenors presented that the state does not have jurisdiction to render an advisory opinion on the legality of the decree in question, according to court pleadings obtained by the Courier.
The legal documents state the “ordinance never has been, and likely never will be, applied by defendant city of Elgin or its law enforcement officers.”
The November 2022 proposition was brought to the ballot through a citizen petition and passed with more than 70% voter approval, eliminating enforcement of low-level marijuana offences.
The city recognized that the ordinance is inherently illegal, going against state and federal law, but didn’t keep it from reaching voters in time. City Manager Thomas Mattis saw this as an example of the confusion that can surround the initiative petition and referendum process.
“There’s nowhere in that process, that before it goes to the voters, we talk about whether or not what’s being proposed is even legal, and that’s what we’re missing in this process,” said Mattis during a Nov. 9 City Council meeting.
Despite this, Chief of Police Chris Noble stated the department will continue to appease voters.
“We’re doing what we always said we would do, and we continue to do it, operate within the spirit of the ordinance even though it is an illegal ordinance,” Noble said.
Gladden noted that Paxton is aware of this in the legal documents.
“The original petition of the State of Texas is remarkable for what it plainly does not allege,” the filings said. “The plaintiff’s original petition by omission essentially concedes the policy and initiative ordinance which it challenges has never been applied or enforced by defendant city of Elgin itself or by any of its law enforcement officers.”
As a result, the intervenors claimed that the state cannot demonstrate the element of “harm” necessary to establish standing under the Texas Constitution.
“Furthermore, any judicial declaration concerning defendant city of Elgin’s policy or initiative ordinance would constitute an impermissible advisory opinion that is prohibited by the Texas Constitution,” the documents added.
The lawsuit names Mayor Theresa McShan as a defendant, alongside Mattis, Noble and their fellow council members that saw the ordinance pass. All defendants are being sued in their official capacity, according to the plaintiff’s original verified petition.
While Elgin is a home-rule city and has “the full power of self-government,” the ordinance and any corresponding Elgin Police Department general order violate the Texas Local Government Code, according to the initial filings.
The State of Texas is seeking Elgin to declare the ordinance and any corresponding Elgin Police Department directive void, repeal it and fully enforce drug laws.
Furthermore, Paxton is asking that no disciplinary action is taken against any employee of the city for enforcing drug laws, and that city policies and internal operating procedures are modified in response to the ordinance.
Low-level possession is a class B misdemeanor, there is no ticket and about 88% of encounters conclude with the individual destroying the substance, according to Noble, who stated that the department will not seek out people smoking marijuana unless there is another legitimate reason.
Paxton has also targeted Austin, Denton, San Marcos and Killeen with similar litigations.
The case is scheduled for 1:30 p.m. May 29 in the 21st District Court in Bastrop.
The Texas Constitution includes an “open court” provision and, except in very limited circumstances, the public at large is entitled to attend all hearings and trials convened by Texas courts, according to Gladden.
