Cite and Release to Cite and Divert

San Marcos, TX

Population: 50,000 - 100,000 | Government type: City | Topic: Decriminalization

Supporters of the cite-and-release ordinance listen to a speaker at Eddie Durham Park during a rally in San Marcos. (Photo: Erin Ckodre/Mano Amiga)

The Program

In April 2020, San Marcos became the first city in Texas to implement a cite and release ordinance that requires police to issue citations instead of conducting an arrest for certain low-level, nonviolent crimes. This follows the  2007 passage of a Texas state law allowing as much. While some cities in Texas have passed cite and release resolutions directing the police departments to implement the new rule, San Marcos was the first to codify cite and release into law, as opposed to other localities that used it as an informal framework.

The San Marcos ordinance came after months of community input, much of which was organized by a local nonprofit, Mano Amiga. The organization brought to the council's attention that all Black low-level offenders jailed in 2018 could have received a citation instead of jail time. Data also showed that 87 percent of low-level offenses ended in arrests in 2018, and 77 percent in 2019. The nonprofit began to work with city council member Mark Rockeymoore and a few of his council colleagues, along with the Immigrant Legal Resource Center (ILRC), to develop the ordinance passed in 2020. 

Source: Daily Record

Offenses eligible for a citation instead of an arrest include:

• Class C misdemeanors other than public intoxication, assault, or family violence

• Possession of marijuana, less than 4 ounces, Class A or Class B misdemeanor

• Driving while license invalid, Class B misdemeanor

• Criminal mischief, Class B misdemeanor

• Graffiti, Class A or Class B misdemeanor

• Theft of property, Class B misdemeanor

• Theft of services, Class B misdemeanor

The city also released a public dashboard to track all cite and release incidents. The ordinance requires the police department to provide quarterly reports and participate in community input sessions during the implementation process. This allows for city representatives, the police department, directly impacted individuals, and community members to assess and improve the law in the future. While cite and release helps to avoid arrests, cited individuals will still have a criminal case filed against them, making it likely that the offense will remain on their record

Following this victory, the city of San Marcos City Council embarked on an effort to further strengthen its impact by collaborating with surrounding cities and Hays County officials to approve a cite and divert program. Cite and divert goes one step further in its decriminalization efforts by giving people who qualify the chance to avoid ever having their offense filed in court.  People with eligible offenses will have the opportunity to go before the Hays County Criminal District Attorney's office, at which time the prosecutor will identify if a course of diversion is suitable. After the person completes the diversion program assigned to them—community service, for example—their record remains clear of that offense. While this program had been under consideration for some time, the Covid-19 crisis, an increasing jail population, and the passing of San Marcos’ cite and release policy has created a new urgency to pass it.

The hope for this program is that many San Marcos residents can avoid entering the criminal justice system at all. Some misdemeanor offenses eligible for this program include marijuana possession, misdemeanor theft, driving with an invalid license, and criminal mischief. While the program has not yet been implemented, county officials hope that it will be underway in January 2021.

Collaborative Governance

Mano Amiga worked with ILRC and progressive city council members to collect research and input to finalize the cite and release ordinance. The ordinance lays out standards for ongoing community member engagement by requiring the Police Chief’s Advisory Panel to engage in regular public meetings with the community to assess the success of the ordinance and work on improving any related policies or procedures.  In its early stages, San Marcos City staff recommended the council pass a resolution instead of codifying it into law, but with much public input, the council went forward with passing the ordinance, holding themselves and the police department accountable to the law. 

The San Marcos police union, SMPOA, was vocally opposed to the ordinance. They argued that since the ordinance allows for police-officer discretion, it puts officers at risk of lawsuits if someone challenges their decision. However, the ordinance had support and cooperation from the police chief, who committed to making sure the policy was implemented and followed. The ordinance still allows for justifiable arrests if the person does not live in Hays County, is at risk of causing harm to themselves or others, is unwilling to provide proper identification, demands to be taken before a magistrate, has an outstanding warrant, or is suspected to have committed a crime not included in the ordinance. The diversion program has had continued input from Mano Amiga and other community organizations across Hays County. These organizations had hoped for the program to be fully implemented by September 2020, but the county has stalled because of Covid-19 restrictions. Mano Amiga continues to organize and hold the county accountable to getting this program in place by January 2021.

Emphasis on equity

Minor marijuana possession has been the leading reason for arrest in San Marcos since 2013. In 2015, nearly 15 percent of the Hays County jail population was held on misdemeanor charges. By 2016, the jail was so overcrowded that the county had to pay to house people in a city an hour and a half away (Waco). Amidst calls for building a larger jail, activists began to organize in a different direction, looking to find solutions that would decrease the jail population. This move was also motivated by knowledge of the harm done to communities of color and immigrant communities who were subject to higher rates of arrest and imprisonment. 

At least 70 percent of immigration-related arrests are a direct result of individuals' contact with local law enforcement agencies. In 2018, nearly one-third of those arrested by the city for low-level marijuana offenses were Black, though Black people make up only five percent of the city’s total population. For noncitizens subject to deportation, and for communities of color, fewer arrests and less contact with the jail system may reduce the threat of deportation and increase access to fair housing and job opportunities.

Analysis

• Preemption: Texas Code of Criminal Procedure article 14.06, which was passed in 2007, allows local law enforcement agencies to issue citations instead of arrest for certain low-level offenses. However, individual law enforcement agencies can still choose whether to utilize cite and release, and to what extent it can be applied.

  • It remains to be seen if there will be any attempts to halt Hays County and San Marcos’ ability to implement Cite and Release and Cite and Divert. The conservative state legislature has shown to be sensitive to police demands, but since these both have consideration and support from the local police chiefs we don’t anticipate any opposition during next year’s session. 

• Local Government Dynamics: San Marcos’ city ordinance was championed by the three progressive members on the city council, only one of which remains on the council. While the police union in San Marcos has been vocally against these measures, there appears to be bi-partisan support and cooperation for both programs. 

• Policy Impact: This provides a clear directive to law enforcement to issue citations, tickets, or warnings rather than make arrests, with limited disqualifying circumstances. There is also a data transparency mandate, that requires quarterly data analysis from the police departments and public hearings. This is also not just an administrative policy but a codified law with enforcement mechanisms . And best of all, it now incorporates a pre-charge diversion element which allows for cited individuals to participate in a diversion program to avoid arrest, criminal charges, contact with the courts, and the harmful effects of a criminal record.

other examples

• El Paso Cite and Release policy specifically for marijuana possession. El Paso also has a First-Chance program that allows for first time offenders of marijuana possession charges to be waived after completing community service

• Austin’s Freedom City policy: In direct response to the passing of Texas Senate Bill 4 in 2017, Austin passed two resolutions to protect communities of color and immigrant families from unjust arrests and discrimination from police. Similar to cite and release, certain policies are citation eligible, clear direction for local law enforcement, and protections if officers don’t follow the policies set out.

Recommendations for building momentum against opposition

• These policies should lay out a clear directive to law enforcement to issue citations, tickets, or warnings rather than make arrests, with limited disqualifying circumstances 

• Cite and release and cite and divert must incorporate a transparency mandate. Police departments should be directed to make regular public data reports on the use of cite & release and divert, including demographic information of individuals affected

• This requires a robust and regular forum for community input and from directly impacted communities during the implementation of the policy and after to assess its success and make changes with community input

• Must include accountability mechanism if officers violate the policy 

• All eligible offenses need to be laid out in the policy 

• A diversion element should be incorporated to allow for cited individuals to participate in a diversion program to avoid arrest, criminal charges, contact with the courts, and the harmful effects of a criminal record

Last updated: January 19, 2021

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