Two and a half years after its passage, the Denton City Council voted 4-3 Tuesday night to repeal the low-level marijuana decriminalization ordinance that city officials refused to enforce.
More than 32,000 Denton voters approved Proposition B on the November 2022 ballot, with the goal of preventing arrests and citations for possession of small amounts of marijuana, except for arrests and citations involved in a felony narcotics crime or a violent felony. The ordinance was also intended to keep Denton from using city funds to pay for THC testing.
City Council members Brian Beck from District 2, Brandon Chase McGee from Place 5 and outgoing Mayor Pro Tem Paul Meltzer from District 3 voted against the council's decision Tuesday night, after some of their constituents showed up to demand that the council adhere to the citywide referendum and not cave to political pressure from Texas Attorney General Ken Paxton.
Paxton sued Denton and several cities with similar ordinances such as Austin, Dallas and San Marcos, claiming that their ordinances violated the Texas Constitution and Local Government Code, which requires cities to fully enforce the drug laws in Texas.
A couple of speakers compared the council's action Tuesday to Denton’s fracking ban, which more than 25,000 voters overwhelmingly approved in 2014 — only for a 6-1 council majority to repeal the ban due to the 2015 passage of House Bill 40, which prevented municipalities from enacting and enforcing bans on the oil and gas extraction method.
Beck called the move to repeal the marijuana ordinance “jumping the ship before the ship is sinking” and pointed out that the courts even said cities should not repeal such ordinances.
McGee said local government authorities “are the last guardrails of democracy” and that they shouldn’t be prone to react in fear over another government body.
“For me personally, I feel the voters sent me to council very much to defend their vote on Proposition B, perhaps more so than on any other issue, and to see it through the court system if necessary,” Meltzer told the Denton Record-Chronicle on Monday. “That’s not free and the outcome is uncertain at best. But that’s my sense of my duty on this as a representative, to ensure that the voters get the full benefit of the court system, not to second-guess the outcome.”
But all is not lost for cannabis supporters.
Mayor Gerard Hudspeth, who voted to repeal, had the city attorney tell people what Denton has done to limit the impact on people caught with low-level amounts of marijuana. For example, Denton police have officer discretion and can issue a Class C citation for drug paraphernalia instead of a possession charge. The courts and prosecutors also offer deferred sentencing and expungement of criminal records.
Hudspeth didn’t like that the city was spending money on legal fees for an ordinance it wasn't even enforcing. So far, Denton has spent about $200,000 and was facing another $500,000 for the discovery process, not to mention what the city would have to spend on an appeal if it got kicked up to the Texas Supreme Court, which Hudspeth said seemed likely.
Council members Joe Holland, Jill Jester and Vicki Byrd all voted to repeal the ordinance.
In addition to the city's legal fees, Hudspeth mentioned the possible freeze of tax revenue and state grants via Senate Bill 2858, which seeks to punish municipalities that pass ordinances that contradict state law by withholding sales tax revenue and state grants.
SB 2858 made it out of the Texas House and Senate committees but is waiting to be placed on the calendar for debate. The deadline to do so is May 28.
Then there’s the 15th Court of Appeals, a new appellate court with three judges appointed by Gov. Greg Abbott. It handles municipal law from across the state, instead of a region like other appellate courts. Jester, who works as a real estate attorney, went over several pages of the appellate’s recent decisions in April that she said clearly indicated that Denton's marijuana ordinance does conflict with the local government code by creating a barrier for police.
Jester said the 3rd Court of Appeals has also agreed with the rationale in Paxton’s lawsuit against Killeen over its decriminalization ordinance.
But a trial court still has to make that determination since the appellate court simply ruled on the temporary injunctions that Paxton sought to keep Austin and San Marcos from enforcing their ordinances, local attorney Richard Gladden said Tuesday night. Gladden represents Decriminalize Denton and Decriminalize Elgin, groups that were behind marijuana ordinances in their cities.
Jester said she did her research before deciding to vote to repeal and called a law professor who specializes in drug policy at Rice University in Houston, spoke with a city council member from another city currently in litigation over this issue, and read articles by The Texas Tribune and the Texas Newsroom.
“Votes do matter. Citizen participation matters. It’s not anything taken lightly and especially in the votes that supported this ordinance,” said Jester, who joined the City Council in 2024 as an at-large member. “Why now, after litigating for a year and half and defending the ordinance? So why now are we contemplating repealing? The reason has been a change in legal precedent.”
CHRISTIAN McPHATE can be reached at 940-220-4299 and cmcphate@dentonrc.com.
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