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The appeal of a district court judge’s decision on the City of Killeen’s voter-approved but controversial marijuana ordinance is ongoing, with the appellate court awaiting a legal brief from Bell County, which filed a civil lawsuit against the city in April.
After seeking and receiving extensions of the original deadline, the City of Killeen filed its appellate brief with the Third Court of Appeals in Austin on Aug. 2, followed by Ground Game Texas on Aug. 29. Ground Game, an Austin-based progressive political group influential in getting Proposition A onto the ballot last year, joined the City of Killeen as a defendant in the lawsuit.
Bell County’s opening brief, which summarizes the legal arguments its attorneys intend to make, is due on Monday, Sept. 18.
“We’re on track,” said Assistant County Attorney Adam J. Soorholtz, via email this week.
The City of Killeen and Ground Game Texas then could choose to file a reply brief within 20 days of the county’s brief being filed, according to the Texas Rules of Appellate Procedure.
WHAT’S HAPPENED SO FAR?
Killeen Police Department stopped making arrests in cases solely involving misdemeanor marijuana possession in November of last year after local voters approved Proposition A by a margin of 69% to 31%.
The new city law prohibits Killeen officers from issuing citations or making arrests for Class A or Class B misdemeanor possession of marijuana except in “limited circumstances,” including the investigation of a “felony-level narcotics case that has been designated as a high priority.”
Although the measure was approved by a substantial majority, the county claimed that it was being harmed by being prevented from enforcing state laws and it filed a lawsuit in Bell County’s 146th Judicial District Court.
The Bell County government has filed a lawsuit against the City of Killeen for passing Prop. A, which decriminalized marijuana under 4 ounces in the city.Walter Lanier | Herald.
The appellate judges in Austin will be deciding on the city’s “plea to jurisdiction,” in other words, the judges are tasked with determining whether the lawsuit even is in the jurisdiction, or authority, of a Bell County district court. Philip T. Kingston, the Dallas-area attorney retained by the city, told the Herald previously that only the State of Texas, through the state’s Attorney General’s Office, has the authority to sue a city.
However, at a hearing in Belton on May 25, visiting Judge Rick Morris disagreed and ruled in Bell County’s favor when he denied the city’s “pleas to jurisdiction,” which prompted the appeal by Killeen.
Morris filed his official order on June 23.
KILLEEN & GROUND GAME ARGUMENTS
Both the City of Killeen and Ground Game Texas, in their respective briefs, request that the panel of judges grant oral arguments in the case. An appeals court does not have to grant oral arguments if, based on the briefs, the judges decide the lawsuit is frivolous, according to the Texas Rules of Appellate Procedure.
“Ground Game Texas requests that this Court grant oral argument (because) oral argument will allow the Court and counsel to clarify issues of law and highlight key elements of the record,” according to Ground Game’s 75-page opening brief.
In its opening brief, the city outlines several main issues that the appellate judges will have to decide, most crucially whether Bell County had the standing and the capacity to file a lawsuit against a home-rule city such as Killeen.
“In its filing, (City of Killeen) asserted government immunity, lack of standing due to the absence of a particularized, concrete, actual or imminent injury and that the State of Texas was not a party to this suit,” according to the city’s 45-page brief. “Standing requires showing that each plaintiff, rather than a third party or the public at large, was personally injured. ... For example, (Bell County) cite(s) that there is harm to Bell County when citizens use marijuana. Bell County has identified nothing concrete and particularized, but a generalized injury, which is insufficient.”
In its opening brief, Ground Game’s attorneys cover some of the same territory as the city, with a few additional points to make.
“As a result of the 2019 Farm Bill, Texans may now cultivate, purchase, possess, and consume legal marijuana products, including smokable hemp cigarettes, so long as those products contain a THC concentration of 0.3% or less,” according to Ground Game Texas. “Police and prosecutors now have a higher burden when prosecuting cases for marijuana possession ... Prior police practices, such as an officer’s reliance on the odor and appearance of marijuana as probable cause for an arrest, no longer apply, because the legal and illegal marijuana substances are virtually indistinguishable by sight or smell alone.”
Because a laboratory test is needed to make the determination, the ordinance can be seen as a way to reprioritize resources: “As the Killeen police chief testified, the ordinance allows the Killeen Police Department to focus its energy and efforts on the highest priority public safety needs, while maintaining officer discretion to continue marijuana enforcement in priority situations...(KPD’s) implementation of the ordinance is even more reasonable considering the 2019 Texas Farm Bill, which increased the risk of false arrest and other civil rights violations if police detain or arrest Texans who legally possess smokable hemp or similar products.”
The city hired Sheils Winnubst PC, a Dallas-area law firm, to represent Killeen in the lawsuit.
As of Thursday, the city has paid the lawyers a total of $57,322.42 for their work on the case. The taxpayer money comes from the city’s general fund.
In late June, the Killeen City Council voted 5-1 to cap attorneys’ expenses at $100,000 this fiscal year in the case.
Beyond the $100,000 limit this fiscal year for the lawsuit defense, is there any other money earmarked for it?
“Not currently,” Killeen spokesman Marcus Hood said in an email to the Herald Thursday.
Most of the City Council members have said they want to see the lawsuit through to the end to see how the courts decide on it.
“The city needs to see it through,” Councilman Ramon Alvarez said in late June. “We owe it to the 70% of voters who voted for it regardless of how I feel about the ordinance.”
Councilman Joseph Solomon was the lone vote against the measure to expand the marijuana defense fund to $100,000.
“I believe that we should repeal it, because it’s a the matter of state law,” Solomon said following the June vote. “While I respect the right of the voters, I believe the council should have educated them, instructed them, and the law of Texas says we can’t override that law. I will stand on that even if I have to stand alone.”
