Appeals court halts San Marcos marijuana ordinance, restoring low-level enforcement

The state argued that the ordinance violates Article XI, Section 5 of the Texas Constitution and Section 370.003 of the Local Government Code, which prohibits cities from adopting policies that limit full enforcement of drug laws. The provision was adopted in 1997.

City officials countered that neither the City Council nor the police chief formally adopted a nonenforcement policy, and thus they did not violate the law.

“I will not stand idly by as cities run by pro-crime extremists deliberately violate Texas law and promote the use of illicit drugs that harm our communities,” Paxton said in a Jan. 31, 2024, news release when he first sued San Marcos and other cities for their decriminalization of marijuana. “This unconstitutional action by municipalities demonstrates why Texas must have a law to ‘follow the law.’ It’s quite simple: the legislature passes every law after a full debate on the issues, and we don’t allow cities the ability to create anarchy by picking and choosing the laws they enforce.”

The appeals court ruled against the city. While the mayor, City Council and police chief were found to have violated the code, City Manager Stephanie Reyes was excluded from the ruling.

A city spokesperson said the city is reviewing the opinion and, pending trial, will not enforce the ordinance. The City Council is expected to meet in an upcoming executive session to receive legal advice and discuss next steps.

What advocates are saying

Amy Kamp—communication director for Ground Game Texas, an organization that helped lead the decriminalization effort in San Marcos and other cities—called the ruling “frustrating and disappointing,” though not unexpected, noting that the appellate judges were “hand-picked by Greg Abbott.”

“I hope that [voters] are willing to continue organizing—to realize that the fight is not about only one election,” Kamp said. “It’s about getting involved in the civic process. Right now, our state government looks like this because there’s very low voter turnout, there’s voter suppression, and so ... we have a state government that represents a little of the voters.”

Catina Voellinger, Ground Game Texas executive director, said in a press statement that voters have repeatedly made it clear they do not want public funds spent on minor marijuana enforcement.

“This ruling is proof that the state isn't working to make communities safer—it’s working to crush people-powered movements,” Voellinger said. “This playbook is as old as Jim Crow. Democracy requires action and vigilance against oppression, and we will continue to fight this.”

What’s next?

Litigation is ongoing with no set timeline.

Similar cases are in progress, including one against the city of Austin, which presented arguments to the same court on the same day as San Marcos. Kamp said it’s difficult to imagine a different ruling in Austin’s case, given the overlap in arguments.

Paxton has also sued Elgin, Denton and Killeen over their voter-approved ordinances, according to previous Community Impact reporting.

Meanwhile, state lawmakers continue to pursue new marijuana-related legislation, according to previous Community Impact reporting. In the most recent legislative session:

• Senate Bill 3, from Sen. Charles Perry, R-Lubbock, would ban all cannabinoid products except CBD and cannabigerol, or CBG, which do not cause a high.
• House Bill 28, from Rep. Ken King, R-Canadian, allows some products to remain but would remove others from store shelves.

“We are in a strange environment in Texas. We’ve never technically legalized hemp for this purpose, and it became this purpose," King said. "This is an elephant that Texas got. And we are going to go down a regulatory road at some point, I believe, and we’re trying to eat the elephant one bit at a time.”