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Decriminalize Denton seeks to dismiss Ken Paxton's lawsuit over marijuana ordinance

 Protesters hold signs showing support for Proposition B outside City Hall in June 2023.
John Anderson
Protesters hold signs showing support for Proposition B outside City Hall in June 2023.

This story was updated at 2:45 p.m., Feb. 5.

Decriminalize Denton, a local nonprofit, filed a petition of intervention on Monday, making it a defendant in Texas Attorney General Ken Paxton’s Jan. 31 lawsuit against Denton. The organization seeks to have Paxton’s lawsuit dismissed on the grounds that it has no legal standings, according to a Feb. 5 press release.

Last week, Paxton sued Denton and four other Texas cities — Austin, Elgin, Killeen and San Marcos — over their ordinances decriminalizing misdemeanor marijuana possession, arguing that they violate state law and the Texas Constitution.

“Because Denton's City Manager and Police Chief have consistently refused to implement the ordinance since Day One, and because Denton City Council has consistently refused to make them, Paxton cannot show that the ordinance has harmed the state in any way, regardless of his erroneous claim that the ordinance violates state law.

"Legal precedent has long established that a law can only be said to do harm to any party upon its implementation, not by its mere existence,” Decriminalize Denton wrote in the Feb. 5 press release.

“Furthermore, legal precedent makes clear that the mere possibility of future implementation of the ordinance by a future City Manager, Police Chief, and/or City Council is mere speculation, and as such cannot be recognized as proof of harm to any party in a court of law.”

City Manager Sara Hensley has said repeatedly that the city will not enforce the entirety of the early November 2022 voter-approved ordinance due to its conflict with state law.

In late May 2023, the city released a press release that offered a breakdown of marijuana-related offenses that Denton police had reported between Nov. 9, 2022, shortly after the voter-approved ordinance was passed, through May 2, 2023.

According to that press release, Denton police had issued 46 marijuana-related citations, issued six marijuana-related citations in conjunction with arrests for other offenses and made three arrests.

“I have full faith and confidence that Chief Shoemaker has and will continue to ensure the Denton Police Department conducts its drug-related enforcement activities in compliance with the authority granted to peace officers to enforce the State’s drug laws, as well as the oath of office the Chief and every sworn member of the Denton Police Department took to uphold the laws of the State of Texas,” Hensley said in May.

Denton police have issued 64 citations related to marijuana offenses and cited and arrested 19 people between May 3, 2023 and Jan. 6, according to recent city data obtained by the Denton Record-Chronicle.

The city has not offered comment on pending litigation in response to Paxton’s lawsuit last week. City Council will be discussing it in a closed session at its Tuesday meeting.

In a Feb. 5 call to action, Decriminalize Denton wrote that they anticipate that Hensley, the city attorney, the police chief and the police union "will pressure Council to repeal the ordinance by voting publicly to remove it from the city’s code of ordinances at a subsequent council meeting.

"It is easy to feel helpless and cynical in situations like this when both city and state governments are disrespecting our vote, but we in Decrim Denton want [the ordinance's] voters and supporters to know that they can still make a big impact in helping to protect our democracy," Decriminalize Denton chairperson Deb Armintor said in statement to the Record-Chronicle.

Decriminalize Denton is urging voters to contact council members and urge them to vote "no" to a repeal and "yes" to seeking the dismissal of Paxton's lawsuit on the legal grounds presented in the Feb. 5 petition of intervention to the court.

"Legal precedent makes that abundantly clear; but a majority of city council members might not know or care. That's why we've all got to reach out to them to demand that they show real leadership and wisdom in responding to Paxton's bullying, rather than giving up and giving in out of fear, ignorance or indifference," Armintor said.

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Christian McPhate | Denton Record-Chronicle