There was a reason the city council moved forward with the new language of removing the word only out of the ordinance. The SMPOA had sent a threat to never issue verbal warnings on any offense in the city again.
The police union sent a 7-page letter to the city council. It outlines why they deemed the steps and guidance being placed in the ordinance as bad ideas. Here are all their grievances and the issues with those grievances.
Table of Contents
1. Time Saved
2. The fallout with the warrants on this notation
3. The police department claims to be committed, but…
4. Is there really confusion about justification?
5. Class C misdemeanors that aren’t really exempted
6. Possession of Marijuana charges
7. Driving while license invalid
8. Criminal Mischief
9. Graffiti
10. Theft of Property and Theft of Services
11. Cite and release vs street diversion/warnings
12. The purpose of the word only.
13. Satisfactory identification
14. The ordinance arrest criteria reiterate the Texas Penal Code
15. Reporting on arrests over cite-and-release and officer accountability
16. Data collection and report on cite and release
17. Conclusion
Time saved
In any government system, man hours are calculated by the time it takes, each time this happens, by the number of times it happens for each officer. Lets make a with what some may consider low numbers. If everyday there are 4 incidents happening to each of 5 officers that are 10-15 minutes each, that would equate to 40 minutes to an hour per officer for a total of 200 minutes (3 hrs 20 min) to 5 hours total. How much happens in 5 hours of time? What could those 5 hours be spent on?
40% of those issued citations are failure to appear. Hays county is the 7th slowest court system in the state of Texas. That brings in a factor that most other places aren’t dealing with: a system that is slow to get notices to appear in court, to offenders. The Hays county system is still preferring to send court summons to offenders by mail. This is in a town where the majority of the population has an address on their i.d. that is not even in the county. It’s college students. And even if a proper address is given, it’s possible that if not delivered in 6 months, the student has changed addresses in town or simply moved out of town.
The fallout with the warrants on this notation
The time not spent getting these people an initial hearing is what causes this overload that the SMPOA speaks of. The SMPOA speaks that the cite and release is the overload. “SMPD Officers have already experienced the County passing on the production of these warrants to the Officers writing the initial citations because the county is not ready or equipped to handle the workload of a cite and release policy/ordinance.”
It’s not that it isn’t equipped to handle cite and release. SMPD write speeding tickets, which itself is a cite and release program of vehicular moving violations. You receive a citation, and even a summons date for court then and there. The workload is so great because this process is being handled in a method that is counterproductive as noted by the article cited speaking of a slow court with lazy judges. It’s inefficiency with the system, and the group doesn’t want to change because hours of time spent working, means a bigger paycheck for officers. Nobody in any of these offices should be getting paid a 10-hour wage for 5 hours of work. This is the taxpayer’s dollar.
The police department claims to be committed, but…
The question here, is what increased workload? Is this in reference to the workload created by operating a counterproductive system of justice? It appears there would be less of a workload if a good chunk of these cases that are eligible were setup up for easy remedy, than delays and resets on a consistent basis. It’s not difficult to have someone appear, plead no contest on the notion that they will perform 40 hours+ of community service within 2 months, take a day long class dealing with the offense (or attend a series of classes), and reappear in front of the judge again to confirm. Resulting in the offender being dismissed or sentence complete. If one is worried about the offenses that appear to be more aggregious than those possessing marijuana, that will be addressed.
The District Attorney has claimed to want to start a diversion program and have it available this past February. At some point, the city will need to take its own steps towards this if it really wants the program on its feet. It will have to lead that drive to make it happen. Someone’s word is nothing, if they aren’t going to hold themselves to it. Accountability should happen.
Is there really confusion about justification?
In a previous article on this ongoing situation, TCC showed the 6 items in the proposed ordinance that would be considered justification for arrest.
It is very clear what is justification for an arrest. There is no need to assume as the SMPOA letter proposes. There is no subjectivity to when justification is authorized as the 6 items are explicit, as the SMPOA admits later on in the letter. You’ll see each one noted with the phrase “Already dictated by Texas Penal Code/Criminal Code of Procedures and department policy.”
There is also nothing that would ever really protect the officers from a civil lawsuit. Currently, as the officers use the discretion they have given under the Texas Penal/Criminal Code they would be open to the liability that is claimed to be a problem. In short, the change in city ordinance is going to change the amount of liability.
“In an effort to protect its members the SMPOA will advise its members to cite and release all offenders so the Officers are never accused of “Not being Justified” in their decision to arrest”
So either they are going to arrest and take them in to be booked into jail, or they are going to cite and release. The whole point of the cite and release program is trying to give individuals that are stopped on the street an opportunity to avoid arrest. So if they are all cited and released, are they NEVER going to arrest anybody under ANY circumstances? Nobody said they wouldn’t be justified as long as they stick to the 6 criteria as outlined by the state – which the city has reciprocated in the ordinance. This is really just scary imposing language that really makes no sense.
Class C misdemeanors that aren’t really exempted
Child Left in Vehicle unattended easily falls under criteria # 3 for arrest, and so does DUI. There is reason to believe that the safety of persons (including the subject) would be imminently endangered by the release of the subject. The concept of exposure would easily fall under mental health issues stated in #3 of the arrest criteria as well. The concept of voyeurism (Peeping Tom) as stated in the description easily falls under criminal trespass. Any Peeping Tom easily meets the criteria for going onto property knowing that they don’t have permission to be there. The rest of this is a slippery slope that just would not exist unless the officer is unfit to serve as an officer, as they should know criminal trespass when encountering it.
Possession of Marijuana charges
Officers have a tendency to overestimate the value of marijuana in a discussion. It’s a 3-decade old falsehood. Any millennial remembers how DARE used to bring these people to school children all the time to provide information that runs contrary to this note. There is the street value of this being sold by the gram, which puts the value at well over $1,000, and then there is the value of someone buying it all on their own at one time, which would place the street value at roughly $500. And that’s just the 4 oz portion.
Of amounts to consider dealing, strange to say you’re okay with the possession but not the selling. More detail should probably be given on these murders over small possession amounts. Do they count any murder where they found a baggie of marijuana on the suspects/victim to be due to the marijuana? Were there other drugs involved such as cocaine or methamphetamine? Other police departments where these type of rules are put in place or marijuana has been legalized has not seen this type of violent crime over marijuana.
The apartment complexes could be losing market value for other reasons if the previous inquiries are questionable. As well, how many of these murders were dealing with more than marijuana and have a possible extensive history? Were background checks thoroughly run? There is so much missing information here.
As the murder rate goes, that is not steadily increasing or steadily decreasing. In fact, it is a rather erratic statistic to monitor for a town. The connotation presented makes it appear that the city is facing a murder epidemic of sorts. If one were to look at the rest of the statistics for crime in the city, San Marcos fares pretty well compared to the Texas rates and most of the time with the US rates overall. The only one where San Marcos exceeds having an issue is rape. Marijuana appears not to be a big issue that needs to be addressed in town.
Driving while license invalid
If it is the first time you get an infraction for DWLI, it would be the first time for that offense. The license being valid though may not be a result of the license being suspended. The license could have simply expired. That alone is enough to get a DWLI infraction. The license invalidity also doesn’t equate to the driver being a danger to themselves or others on the road. This offense could be one that is easily handled like expired registration stickers where the suspect gets the car registered and presents evidence to the court and a judge possibly dismisses it.
SMPOA is assuming with this statement that every DWLI would be due to the license being revoked or suspended. Even in that case, there is a chance that the license was suspended, without the driver’s knowledge. If you came from out of state (OOS) with an OOS license, and for some reason, the license was suspended later on during an audit by the previous state, that state will contact Texas to invalidate the license transfer. Then they will send you a letter certified mail to notify you of the suspension. If you are pulled over between the time Texas is notified and you receive the letter, you would be charged with a DWLI. Until all of the evidence is gathered, it would not be a clear cut case of the driver being a repeat offender of DWLI.
Criminal Mischief
None of this would change or be easier by arrest. This was discussed in the first City Council meeting and addressed by Councilmember Baker. Councilmember Maxfield Baker countered with the fact that people are still going to have to appear in front of a magistrate. That feeling good for the immediate comeuppance of a suspect shouldn’t be the reason to not move forward with changing how the police handle these situations.
Basically the argument here is that police should be able to arrest people, based on the feeling of the person making the call. At no point would anyone really consider this a sane measure, to allow an extremely emotional person to dictate what happens to an offender. Due process is for that purpose.
As well, is the charge were to leave someone in a position of being in imminent danger, the officer would easily be able to arrest for this.
Graffiti
The same thing that applied to Criminal Mischief, applies to this charge as well. If the restitution process is taking too long, it’s not due to an arrest vs citation taking place. In this instance it’s on the court system taking extra time with it.
Theft of Property and Theft of Services
Theft of Service is considered a Class B Misd. if the value of services stolen is >$100 but <$750. An example given during the previous council meeting was the theft of a lawnmower. The suspect could still be charged with criminal trespass.
Again, the current law without the ordinance doesn’t do anything to address the victims. Restitution timelines are a court issue and not a cite-and release issue. There is really nothing the officers can do that will guarantee that the victims don’t feel a particular way afterward.
Notice that the SMPOA went stated, “victims are inconvenienced by process of restitution.” If the victim wants restitution, they are going to be inconvenienced regardless of what the officer does. Nothing changes.
Cite and release vs street diversion/warnings
Is there good reason as to why this cannot be carried out the same way warnings for traffic violations are handled? Most complaints about the disparity in race are not about the warnings issued vs citations, but convictions in court for the same crimes by people of different racial appearance. If the police are using body cams (they are and have confirmed this when tallying the number of warning issued) then there easily could be evidence to show that there hasn’t been a bias. This type of issue is going to be present whether there is cite and release or verbal warning handed out. This stems from previous police officer interactions where one race was issued a warning, and others were flat out arrested.
Collecting the data lets the city and the public see how each case and situation is being handled. It created a method for seeing trends not just within the department, but the behavior of each officer. It gives the department the basis for shifting officers around in where they are assigned. For example, if one officer has statistics showing that their may be a racial bias present, another officer can be assigned to that beat and the data compared over time. This lets us compare the environment the officer patrols versus the behavior the officer exhibits.
If an officer has a more than sizeable chunk of the community pointing at them for what is perceived to be a racial bias, that is not cause to end verbal diversion/warnings, but to investigate what has prompted this backlash.
The purpose of the word only
First, the parameters are not convoluted. They are written clearly and publicly posted. The ordinance in question was posted on the San Marcos City Council website. The claim is also made that they are misleading, but yet no justification is given for that.
The need for the word only is the backbone of this ordinance. The officers had a chance to use discretion, and claimed to do so. It was proven at the council meeting that they weren’t really using that discretion. The claim was made that they were using street diversion in comparison, and then took quite some time to even attempt to prove that notion. The reason for the word only is that we are finding out that discretion was offered, it was claimed to be used, but hindsight is showing that it isn’t being used. The residents have obviously shown enough support that they want to see this ordinance in place and their officers arresting people WHEN NECESSARY. and when an arrest would make an substantial difference.
The SMPD gave their word that they would implement cite and release, and they failed the city. Now the town is trying to hold them accountable to their word. Notice the outcry from SMPOA about the department being held accountable, the way they would want to hold you accountable.
Satisfactory identification
So the SMPOA puts down that what is considered satisfactory evidence of ID is guided by the Texas Penal code, and then follows it by saying that it may violate the Texas Penal code. How does satisfactory evidence of identification as listen in the penal code, violate the penal code?
This isn’t misleading to the public. It’s stated clearly, and the penal code gives guidance. The third bullet is literally explaining the 1st criteria for arrest. If you cannot provide this, you’ll be arrested. If you fake it, you’ll be arrested and charged with a second crime. For cite and release to work in the first place, the state requires that identification be provided.
What use of the word “an?” Where is that in the criteria? It’s not in penal code, and not in the ordinance section criticized. ID is something the police already deal with, this complaint is rather trivial and the SMPOA is trying to make it something that it isn’t. Nothing new is going to change with how the police identify people. How is that misleading to the public any more than it would be currently without the ordinance? SMPOA is literally arguing that the current possible confusion by the law in place, will be created by an ordinance that hasn’t even been voted on yet. This is a form of a non-sequitur fallacy.
The ordinance arrest criteria reiterate the Texas Penal Code
The other 5 criteria listed are already in the Texas Penal Code. The entire section of red in this emailed threat, where complaints. Why would the SMPOA be upset or complain that the ordinance contains the state’s legal language in a format so that it is upfront with the criteria the state requires? It’s actually a courtesy that the city council put this list of 6 criteria in the ordinance and publicly available to its residents. That is a strange thing to be pointing out in a letter with grievances on a proposed ordinance.
Reporting on arrests over cite-and-release and officer accountability
As mentioned before, nothing in a criminal code is going to stop officers from being held liable in a civil court proceeding. That’s the case right now with the current law. The SMPOA is now telling everybody that officers need extra protections if this ordinance goes into place. In reality, nobody, including officers should be above the laws and proceeding they are being asked to enforce. It’s amazing considering that this section actually allows officers to still arrest if they please and not be charged with a criminal offense for doing so. Basically it asks them to list the criteria used to justify the arrest, if it was for a cite-and-release eligible offense in this ordinance. They can’t be held criminally liable if they arrest without justification, only having to answer to the department and city as to why now.
The police union is telling the city council that they shouldn’t have to justify why they arrested anyone. They are literally arguing that they need to justify why they arrest people, just let them do it. Trust them. We are in this position because we trusted them to make a change as they claimed. They didn’t stick to their word. Now that this proposed change is being codified by the city, SMPOA gets upset. something should seem off about that.
Data collection and report on cite and release
Currently, the police department is supposed to be creating digital reports that go into a national database. They go into this database so that crime statistics for cities, counties, and states across the nation can be tracked. The department should have minimal issues with reporting to the city council and city manager what’s they’re doing. This is accountability, plain and simple. If the department can’t provide information for accountability, there are issues at hand with the police department handling itself. Is that what SMPOA is hinting at? There is obviously a database in place for other citation offenses such as speeding. Why isn’t this database being utilized for this same issue? Wouldn’t the same data requested by the council need to be provided to the court? Wouldn’t it be provided when a suspect goes in front of a judge or jury for trial?
As well, San Marcos should never be making a decision on how it handles its criminal affairs based on other cities not being able to implement similar systems. San Marcos should never be beholden as to how it will handle its affairs based on whether Kyle, Buda, Wimberly, or the Hays County Sheriff’s office has the equipment to do this. They are all independent agencies that are not the responsibility or under the jurisdiction of San Marcos. This would be the same as a parent saying that the child needs to brush their teeth. To then have the child’s argument against it be that another child across the street can’t afford a toothbrush. Or finds brushing their teeth to be too complicated, therefore they shouldn’t do it either.
Conclusion
There appears at first to be a load of logic used by the SMPOA to justify its opposition to the ordinance going into place. Upon taking a closer look and analysis of the issues put forward by the SMPOA about the ordinance, one can see that it is loaded with appeals to emotion, logical fallacies such as slippery slope arguments and non-sequiturs, misinformation and misdirection.