I’ve represented several folks in Austin recently who have been “ticketed” for marijuana possession instead of being arrested. And I wrote about House Bill 2391 which allowed for this back in January.

I’m at home now, and I’ll make sure to run through those files and check tomorrow when I’m back at the office, but I thought some of those clients had been “cited” for possession of marijuana by officers in the Austin Police Department. (The other possibilities are the Travis County Sheriff’s Office, Department of Public Safety Troopers, and other various Travis County non-Austin municipal police forces.)


So I was somewhat surprised to see Sunday’s Austin American Statesman article titled and subtitled “Austin police to begin citing, not arresting, some offenders; Plan to be finalized by year’s end, chief says.”:


Marijuana smokers with small amounts of the drug or people driving while their licenses are suspended could soon be spared a trip in the back of a jail-bound Austin police car.


“… could soon be spared…” That was the surprising part – as well as the title which at least implies that Austin police have not yet begun to “ticket” for POM. At any rate, I’ll look through the files, and perhaps post an email to the Austin Criminal Defense Lawyers Association listserv to poll people on whether APD has actually already put this into effect. Maybe the “ticket” POM cases I’ve been getting have been other agencies.


So, enough of the digression, and back to the title of my post… Several others in the local Austin blogosphere have commented on this story already. Scott Henson notes, among other things, that the Williamson County District Attorney is quoted in the article disparaging the new marijuana arrest vs. “citation” policy option:


However, critics, including Williamson County District Attorney John Bradley, said the law "sends the exact opposite signal" law enforcement officials should want to give offenders. "My thoughts are that the entire process is a very creative way to decriminalize how we prosecute drug cases in Texas," Bradley said.


Scott’s response?


I honestly have no clue what John Bradley is talking about. This change doesn’t "decriminalize" anything. The offense charged is still a B misdemeanor with the full range of punishment options available upon conviction. That kind of overhyped rhetoric seems misplaced here.


Of course Scott is right. The reason I put quotation marks around the words ticket and citation in the post so far is that while House Bill 2391 allows police agencies to not take up their valuable time carting a person away to the jail for marijuana possession, the penalty remains the same. From my January post:


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’.)

That’s right. You still face a Class B charge, not a Class C – even though you were given a ticket. It’s absolutely positively not decriminalization


Sometimes clients who are acquitted, or whose cases are dismissed want to know how they can reverse time and undo that night they had to spend in jail – to which I am likely to respond with Scott’s subtitle for his blog – or my version of it anyway: “You can beat the rap, but you can’t beat the ride.”


This policy however, which I fully support at least as far as it goes, is truly the reverse: they may not take you to jail, but possession of a “usable amount” of marijuana is still a Class B Misdemeanor in Texas. 


[N.B. See also new Austin criminal law blogger Dax Garvin’s question: why did the Statesman ask the elected felony prosecutor to comment on this story, when it only applies to misdemeanors in the first place?]