The San Marcos Police Department is still arresting and charging individuals with possession of marijuana, though those few arrests were based on other enhanced charges.

Police Chief Stan Standridge is required to provide the City Council with an update on the ordinance within three months of its adoption and every three months thereafter at a public meeting. The first public meeting took place March 7.

This comes after an ordinance passed to end low-level marijuana enforcement in the city of San Marcos last November with more than 80% of voters in favor.

Standridge said the ordinance to adopt a policy regulating enforcement is pursuant to the law. However, there is a conflicting statute overriding the ordinance: Section 370.003 of Title 11 of the Texas Local Government Code.

The section of Texas Local Government Code states a governing body “may not adopt a policy under which the entity will not fully enforce laws relating to drugs.”

From Nov. 17 to Feb. 28, the police department charged two individuals with a Class B misdemeanor of possession of marijuana.

“There are many more people in the Hays County Jail on [possession of marijuana], but they all stem from arrest warrants,” Standridge said. “Pursuant to the code of criminal procedure, we shall make an arrest on arrest warrants, ... but this is an organic charge that stems from an investigation on the streets of San Marcos, and it resulted in two people being arrested with possession of marijuana.”

One of the individuals charged with possession of marijuana was also charged with manufacture/delivery of methamphetamine, heroin, fentanyl or ketamine, which the ordinance allows, Standridge said.

The other individual was also charged with driving while license invalid and an enhanced charge, meaning it had happened numerous times.

“So ... you did not pursue a written policy, per se, but in practice y'all are enacting the spirit of the ordinance?” Council Member Alyssa Garza said.

Upon receiving legal advice from the city attorney's office, the police department did not adopt a policy governing the ordinance to decriminalize marijuana, Standridge said, and instead "communicated a memorandum to all police personnel."

“We do not need to adopt an administrative directive or policy but instead label this as a memorandum to provide direction to sworn staff,” Standridge said.

The memorandum

The memorandum was sent Nov. 22 and states what the ordinance says and what the police department's response and procedure would be moving forward.

San Marcos police officers are allowed to make arrests or issue citations for misdemeanor possession of marijuana if it is part of an investigation of felony-level narcotics “designated as a high-priority investigation” or if there is an investigation of a violent felony, according to the memorandum obtained by Community Impact.

If officers have “probable cause to believe that a substance is marijuana” then it may be seized; the individual will be released if possession of marijuana is the only charge, according to the memorandum.

If a police dog alerts to the smell of marijuana, a search may be conducted; however, if only misdemeanor amounts of marijuana are found, then the officer cannot issue a citation or make an arrest.

“If, however, other felony contraband is discovered, the ordinance allows officers to enforce the marijuana possession by either issuing a citation or making an arrest,” the memorandum states.

“The police department does comply with the voter-approved ordinance," Standridge said in a statement to Community Impact. "The two arrests were made in compliance with the ordinance, as both arrests had other offenses unrelated to marijuana. The department is in full compliance with the ordinance."