[co-author: Daniel Molina]

With an expanding cannabis and hemp market and an upcoming legislative session that will consider medical cannabis expansion, hemp regulation, decriminalization, and other cannabis matters—we have our eyes on Texas! Texas currently has one of the biggest hemp markets in the country, adult use remains illegal and the state’s medical cannabis program is among the most restrictive in the nation. However, some localities are actively working on decriminalization and public education efforts, and a lot could change in the upcoming legislative sessions.

This inaugural blog post will be the first in our Texas series following legislative and policy developments in the Lone Star State! Read on for the first blog of our series which covers updates on cannabis reform and decriminalization measures in cities like Dallas and Austin, which are set to be on the ballot in November.

Dallas To Put Cannabis Decriminalization to the Voters

On August 14, 2024, the Dallas City Council voted to include a cannabis decriminalization measure, dubbed the "Dallas Freedom Act," on the November general election ballot. The measure passed by an eleven to four margin, marking an overwhelmingly positive step for cannabis users in Dallas.

That approval vote is now known as Ordinance No. 32799. It orders a special election to be held in the city of Dallas on November 5, 2024, to adopt amendments to the Charter to reform cannabis enforcement.

The petition to decriminalize cannabis in Dallas, the third largest city in Texas, was started by the social justice group Ground Game Texas, the driving force behind similar bids to decriminalize cannabis possession in other Texas cities.

What is the Dallas Freedom Act?

“The Dallas Freedom Act is about more than just marijuana—it’s a step toward broader social justice, smarter use of public resources, and protecting civil liberties in Dallas,” Natalie Marquez, Ground Game Texas field director, said in an official statement on August 15, 2024.

Specifically, if approved by voters in November, the Dallas Freedom Act will:

• Prohibit the Dallas Police Department (“DPD”) from making arrests or issuing citations for marijuana possession, except as part of a narcotics felony or violent felony investigation
• Prohibit city funds from being used to test cannabis-related substances to determine whether a substance meets the legal definition of “marijuana” except in limited circumstances
• Prohibit the odor of marijuana or hemp from constituting probable cause for any search or seizure, except in limited circumstances
• In the event a court order prohibits the nonenforcement of misdemeanor cannabis possession, make enforcement of misdemeanor cannabis possession the DPD’s lowest enforcement priority
• Require quarterly reports, in consultation with the chief of police, concerning the implementation of the policy to be presented to the city council

These reforms are substantial given that Texas is one of only 19 states that still imprison individuals for possession of small amounts of cannabis.

In Texas, possession of two ounces or less of marijuana is classified as a Class B misdemeanor, which can result in up to 180 days of imprisonment and a maximum fine of $2,000. For amounts between two and four ounces, it is considered a Class A misdemeanor, carrying a potential penalty of up to one year in jail and a fine not exceeding $4,000. These are the precise provisions that the Dallas Freedom Act will mandate nonenforcement of.

Similar Reform Measures Have Passed in Other Texas Cities

Ground Game Texas has been the driving force behind similar ballot measures in over ten Texas cities, where public support for the measures was significant. These cities include Austin, Denton, Elgin, Killeen, and San Marcos, which were all sued by Texas Attorney General Ken Paxton earlier this year.

The case against the City of Austin began on January 31, 2024, nearly two years after Austin voters approved the decriminalization of cannabis possession when Paxton filed a complaint with the Travis County District Clerk. However, a Travis County judge dismissed that case with prejudice in June. Initially, groups like Ground Game Texas expected Paxton to appeal the decision, but under Texas Rule of Appellate Procedure 26.1, a notice of appeal needs to be filed within 30 days after a judge signs a judgement That timeline has come and gone, but it is unclear whether a 90-day limit, rather than the standard 30-day limit, might apply given the limited exceptions in Rule 26.1.

This dismissal shows promise for the success of the Dallas Freedom Act and for other cities, such as Bastrop and Lockhart, which have similar measures on their ballots this fall.

Opposition to Decriminalization

In addition to Ken Paxton (who, ironically, just agreed to a deal to have his criminal charges dropped), Texas Governor Greg Abbott is an outspoken critic of the relaxing cannabis enforcement through ballot measures, and Lieutenant Governor Dan Patrick has repeatedly prevented pro-cannabis legislation passed by the Texas House of Representatives from passing in the Texas Senate.

DPD Chief Eddie Garcia is also opposed to the measure, despite previously ordering his officers to stop arresting individuals for possession of less than two ounces of cannabis in 2021. Garcia had previously embraced the policy in light of disparate outcomes for people of color, but he now is claiming that murder rates are driving his opposition, sidestepping the disparate outcomes argument that he previously embraced.

The Importance of Cannabis Reform Through Ballot Measures

City ordinances, like the ones backed by Ground Game Texas, are instrumental to efforts to decriminalize cannabis in Texas because the state’s constitution does not provide for voter-driven statewide referendums like many other states’ constitutions.

The only way to hold a statewide vote would be to pass a constitutional amendment, which was the approach in states like Colorado and California when they legalized both medical and recreational cannabis. However, in Texas, a vote on a constitutional amendment must be preceded by a two-thirds vote from the legislature which is unlikely given the historically conservative attitude of Texas Lawmakers, as highlighted above.

Dallas Voters to Decide on Cannabis Charter in November Election

The Dallas City Council has officially greenlit a comprehensive charter package, setting the stage for a crucial vote this November. After over a year of meticulous work, including the efforts of a 15-member Charter Review Commission, the council's final decisions will soon be in the hands of Dallas voters.

Many groups, including the American Federation of Labor: Congress of Industrial Organizations, have endorsed the measure because they recognize its social value. This could have a huge influence on Texas’ overall approach to cannabis regulation, which could have a sizeable impact on businesses wishing to participate in the state’s cannabis industry. Even if the measure doesn't pass during the November election, it will serve to support future discussions and education on cannabis reform in Texas.