Bell County’s civil lawsuit against its largest municipality over a voter-approved marijuana ordinance has been in a holding pattern after a flurry of legal briefs were filed from August through October.
“Our appeal still is pending in front of the Third Court of Appeals (in Austin) and we don’t know what exactly will happen next,” said attorney Mike Siegel, who represents Ground Game Texas, in an email to the Herald this week. “The Court could set a date for oral argument or issue a final decision in the case. The Court could also wait several more months before doing either. The Court has not decided whether or not to grant oral argument yet.”
In their appeals briefs filed in August, the City of Killeen and Ground Game Texas specifically requested that attorneys be allowed to present oral arguments in front of the panel of appellate judges that will decide the case. By contrast, Bell County insisted in its own brief in September that attorneys’ oral arguments would “confuse the issue.”
The issue arose on Nov. 8, 2022, when Killeen voters passed Proposition A by a margin of 69% to 31%. The city council then created an ordinance prohibiting the city’s police officers from making arrests for misdemeanor possession of marijuana in most cases.
“Ground Game’s position on the Killeen case is that we are defending the policymaking authority of Killeen voters, who directed city staff members to deprioritize marijuana enforcement,” Siegel said. “By reducing the number of misdemeanor marijuana possession arrests, the City of Killeen has saved the city and county hundreds of thousands of dollars, resources that are now available for higher priority public safety needs. The status quo in Killeen shows how its voters made the right choice when they adopted marijuana reform via Proposition A in November 2022.”
However, Bell County’s district and county attorneys’ offices filed suit in April because they claimed that they were harmed by being prevented from enforcing state law.
Next door in Harker Heights, where the city council decided not to create a Proposition A ordinance, the tables recently were turned when Ground Game Texas filed suit on Nov. 30, against City Manager David Mitchell and City Secretary Julie Helsham. Heights voters had approved the measure with 64% in support.
“The Harker Heights case has been filed and served,” Siegel said. “Ideally, the City of Harker Heights would admit that it has done wrong and fix the underlying situation before litigation goes any further. This lawsuit is designed to compel city officials to do the absolute minimum: add a voter-approved ordinance to the City Code.”
Bell County court records show that Mitchell and Helsham filed an official answer on Dec. 27, through their attorney, Charles Olson.
BELL COUNTY’S MARIJUANA BATTLES
KPD stopped making arrests in cases solely involving misdemeanor marijuana possession in November of 2022, after local voters approved Proposition A. The ordinance prohibits Killeen police 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.”
The appellate judges in Austin are tasked with determining whether the lawsuit even is in the jurisdiction, or authority, of a Bell County district court. The attorney who is representing the City of Killeen, Philip T. Kingston, 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.”
Even before Morris filed his official order on June 23, the city and Ground Game had already filed notice of their appeal, which halted proceedings at the district court level until the jurisdictional matters are decided.
“Right now, with this appeal, we’re asking for the judges to decide only on the jurisdictional issues and to determine if the county attorney and district attorney have standing to sue,” Siegel said, previously. “Underlying that is the question of whether the county was ‘injured’ — in the technical legal sense — by the city’s policy. Are they losing money or resources? Is there an uptick in crime? They have to show a concrete injury; symbolic lawsuits are not allowed. Much of what the county says in their petition is speculative. We argue there is not a conflict of law because this is a de-prioritization measure. It’s a way for the police department to put their resources where most needed.”
From the perspective of Ground Game, the consequences of the lawsuits are the same regardless of whether it is a plaintiff or a defendant.
“In both cases, Ground Game is litigating on behalf of voters who exercised their constitutional right to legislate via the initiative process,” Siegel said.
The Herald reached out to the Bell County Attorney’s Office by email and phone but was unable to arrange an interview by press time.
The Herald will continue to follow this issue.
