Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

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I’ve written about “Austin Marijuana” laws before, and perhaps unwisely, I joked that Austin is Weird, but unfortunately, it is constrained by the laws of the great State of Texas and therefore no different when it comes to marijuana laws than anywhere else in the Lone Star State.

Scott Henson called me on it, in a comment:

Two caveats.

1) Austin supposedly will soon implement HB 2391 that allows tickets instead of arrest for pot at an officer's option. And

2) APD frequently now gives paraphernalia tickets instead of arrests for B misdemeanors as a way to reduce jail overcrowding and keep officers on the street. Both those are discretionary, though - the state law is still the same.

I knew that was true, but I what I didn’t know was: Austin really is weird. Austin is apparently the only place in Texas where police are utilizing this new law. From the Dallas Morning News article “Marijuana ticket law only catching on in Austin”:

Texas lawmakers thought they could help ease jail overcrowding when they passed legislation allowing police to write tickets for misdemeanor marijuana possession and a few other nonviolent crimes, instead of hauling suspects to the clink.

But the new law, which went into effect Sept. 1, 2007, is being used only in Travis County. Prosecutors in Dallas, Tarrant and Collin counties never set up a system to process the misdemeanor citations and, they say, they have no plans to do so.

The article I subtitled “Law designed to free jail space not used elsewhere in Texas as prosecutors question propriety,” and it quotes several ‘concerned’ prosecutors:

"I think the Legislature was very sensitive to the fact that there are so many jails that are overcrowded," said Terri Moore, Dallas County's first assistant district attorney. "This was a great idea, but it raises a lot more questions that we are not ready to answer." …

For Greg Davis, Collin County's first assistant district attorney, one of his qualms with the new law is the perception created by ticketing for a drug offense, instead of making an arrest.

"It may... lead some people to believe that drug use is no more serious than double parking," Mr. Davis said. "We don't want to send that message to potential drug users, particularly young people."

Well, the legislature has spoken, and yes it’s true that the new provision is discretionary, but rejecting it out of hand for reasons of… well, political cowardice?

Jail overcrowding is a real problem all across Texas. And the super majority of taxpayers are more than OK with tickets for small amounts of marijuana possession – heck, decriminalizing marijuana or reducing it to a Class C level.

One quick caveat of my own: the law does not make possession of less than two ounces of marijuana a Class C traffic ticket level offense. It is still a Class B misdemeanor, jailable by up to 180 days and up to a $2000 fine. (Not a likely result, but it’s still not ‘just a ticket’.)

In other words, Mr. Davis, the offense itself is still just as serious as it was before the new law. And of course you know that. Don’t you want to save the taxpayers some money?

Update: Of course, Travis County is not the only place in Texas the new discretion to ticket for marijuana is being used. Still, Austin deserves some credit, for being the first ‘big city’ to use it so effectively.