‘Blatantly unconstitutional’: Bell County, State of Texas sue City of Killeen over voter-approved marijuana ordinance

Plaintiffs claim ordinance creates difficult dilemma for municipal police officers
Published: Apr. 13, 2023 at 8:37 PM CDT
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BELTON, Texas (KWTX) - The State of Texas and Bell County on Thursday, April 13, filed a lawsuit against the municipality of Killeen, claiming a marijuana ordinance approved by voters “blatantly” violates the state’s constitution, and creates a difficult dilemma for municipal police officers.

“Both the State of Texas and Bell County have been harmed by Defendant’s (City of Killeen) action and this suit brings this Honorable Court to provide the judicial remedy sought by declaring the ordinance unconstitutional and enjoining the Defendant from enforcing it,” the lawsuit states.

On Nov. 8, 2022, voters in Killeen overwhelmingly approved Proposition A, a ballot measure that decriminalizes possession of less than four ounces of marijuana for personal use, and would have prohibited law enforcement officers from stopping someone because they smelled the drug. The ordinance does not legalize marijuana, and merely prevents people from being arrested for having up to four ounces of the plant.

Two days later, on Nov. 10, the chief of police in Killeen “directed his officers ‘by special order’ to cease misdemeanor marijuana arrests,” the lawsuit states.

According to the Killeen Daily Herald, the provision in the ordinance stating, “the odor of marijuana or hemp shall not be considered for probable cause for any search or seizure” was removed by the Killeen City Council on Dec. 13.

The amended ordinance, however, is now in effect as City of Killeen Code of Ordinances Chapter 22 - Police, Article V - Marijuana Enforcement.

The state and county are demanding the City of Killeen immediately order its agents to stop enforcing the ordinance, remove the publication of the ordinance in print forms, including the online municipal code database, and for the chief of police to countermand his order to cease misdemeanor marijuana arrests.

The plaintiffs argue the city’s ordinance is “inconsistent with numerous state laws that have supremacy over municipal ordinances” and seeks to “discourage officers from even confiscating the illegal drugs.”

“An officer seeing marijuana in plain view would ask themselves why would they write a report for no one to read; no complaint to be signed; no arrestee to be taken before magistrate,” the lawsuit claims, “Worse yet, the officer could be punished by the Ordinance to the point of termination from the police force for following” the state’s Code of Criminal Procedure.

In the lawsuit, the plaintiffs argue there is another inconsistency with the city’s ordinance with regard to state law. “If a Killeen Officer identifies an individual with a misdemeanor marijuana warrant from any other jurisdiction across the state, the Officer is faced with a dilemma: violate state law and fail your surrounding communities, or violate local ordinance and lose your job,” the plaintiffs argue.

“The Killeen Ordinance thwarts the legitimate goals of the Texas Penal Code and risks the creation of a patchwork code that would vary from city to city and county to county,” the plaintiffs argue, “State prosecutors would fail in their duty to seek justice because subservient political subdivisions could effectively opt out of their sworn duty to ‘uphold the laws’ of this state by refusing to arrest or serve warrants of arrest on offenses of their choosing.”

“Bell County is harmed by this same lack of uniformity in the application of marijuana laws.”

KWTX reached out to the City of Killeen for a statement and received the following message in an email: “The City received a copy of the petition filed by Bell County this week and legal counsel is currently reviewing the document. City Council will discuss the lawsuit with legal counsel at next Tuesday’s City Council meeting.”