“It is still illegal, and the Austin Police Department will still enforce marijuana law,” Manley said during a Jan. 24 press conference. “At this point, nothing will change. If our officers come across someone smoking marijuana or in possession of marijuana, we will handle it as we have, which is cite-and-release ... or if the appropriate response is the arrest then that will be made.”
The resolution has City Manager Spencer Cronk coming back to City Council in May with recommended changes to police department protocols. When that happens, Manley said the department will look at policy and practices, but nothing will change until then.
City Council voted 9-0 on Jan. 23 to not spend city money or personnel resources on THC testing for lower-level marijuana possession offenses and to end penalties, “to the furthest extent allowable,” for such offenses. Many in the community took this action as effectively decriminalizing personal possession of marijuana—that is, possession without intent to distribute. Only a couple hours after the City Council vote, Chas Moore, the founder of the Austin Justice Coalition, sent out an email that read, "Success: Austin effectively decriminalizes cannabis." However, law enforcement officials immediately rejected such claims.
District 4 City Council Member Greg Casar told Community Impact Newspaper on Jan. 24 that, in fact, City Council's action means significant change for the community, even if the police department is not changing how it handles marijuana possession.
"For the hundreds of people who have received [possession] citations over the last few months, we were going to likely buy testing equipment so we could prosecute those charges," Casar said. "That's not happening anymore. Before yesterday, enforcement meant you could get a citation and the marijuana could be tested. Starting today, enforcement means you're getting a worthless piece of paper."
The chief emphasized that lower-level marijuana possession crimes have “never been a priority for the department” and said the department is not “proactive” when it comes to marijuana possession unless related to higher-level drug trafficking. Manley lauded his department as a “progressive agency” and said steps have been taken over the years to decrease the number of arrests for offenses such as marijuana possession.
The move comes seven months after the Texas Legislature legalized hemp, which is only distinguishable from marijuana through the level of THC—the intoxicating ingredient in pot. The state defined hemp as containing less than 0.3% THC. This move led prosecutors across the state, including District Attorney Margaret Moore and Travis County Attorney David Escamilla, to say they would drop all marijuana possession charges moving forward that were not accompanied by a lab report proving the confiscated substance had illegal levels of THC.
Prior to the Legislature’s 2019 decision, police departments did not need to distinguish hemp from marijuana because both were illegal. With hemp legal, THC levels now have to be proven through a test, which requires expensive and accredited lab equipment that many police departments do not have. Manley said his department was actively pursuing the equipment when City Council said no resources should be put toward such an acquisition Jan. 23.
Without the equipment, Austin police cannot prove THC levels, which Manley said leaves “prosecution [of possession charges] in question.” However, Manley said the police department will still confiscate, likely cite and sometimes arrest if they come across any level marijuana.
Emily Gerrick, a senior staff attorney with the Texas Fair Defense Project who worked with City Council on the resolution, said with City Council’s action, the police department should no longer be handing out any citations or arrests, even if someone is smoking pot in public. Casar said City Council does not expect for the police department to immediately change its own official enforcement policy but does expect Manley to do "everything in his power" to reduce citations and eliminate arrests to the greatest extent that he can.
Casar and Mayor Pro Tem Delia Garza, who led the City Council effort, were unavailable for comment by press time.
