Tuesday, December 16, 2014

Moody proposes civil penalty, $100 fine for less than 1 oz of pot

Texas state Rep. Joe Moody yesterday held a press conference to promote his new bill HB 507 which would change the penalty for possession of less than an ounce of marijuana to a civil, rather than a criminal offense, with a $100 fine. As these things go, the presser went well. Rep. Moody was sharp and focused and Heather Fazio of the Marijuana Policy Project did a good job as emcee. The event was packed with supporters and had decent coverage; I counted six TV cameras, though several print outlets were notably absent. Your correspondent attended on behalf of the Texas Criminal Justice Coalition. Here's a roundup of MSM coverage I saw this morning:
Grits thinks the bill has a decent chance. Polling won't scare legislators off this time, and the economics of the proposal are favorable both to counties and law enforcement agencies. Plus, there's already an appetite for reducing penalties. A couple of other reps - Dutton and Wu - have filed bills reducing possession of small amounts of pot (one ounce and .35 ounces, respectively) to a Class C misdemeanor. And last session, the House Criminal Jurisprudence Committee voted out a bill to reduce the offense level for offenders under 21 to a Class C. Indeed, going back to 2005, the same committee, then under leadership of Chairman Terry Keel, unanimously supported a bill to reduce low-level pot possession to a Class C; then-Speaker Tom Craddick wouldn't let it to the floor. Then as now, though, one can count to a majority among House members if leadership would ever let them vote on the issue.

Rep. Moody's innovation in HB 507 is to create a civil penalty instead of merely dropping the offense to a Class C. The bill specifically says the civil fine will not be considered a criminal conviction and police couldn't arrest people solely for possessing less than an ounce of pot. (See the text.) As a former misdemeanor prosecutor from El Paso, Moody is well-positioned to make the case for this legislation.

There are several reasons to go the civil route. Criminal drug convictions, even a ticket, carry collateral consequences like losing access to student financial aide or other benefits that a civil penalty would not. Plus, advocates can claim the bill "decriminalizes" pot, which changing this to a Class C keeps the offense in the criminal realm. Senior District Judge John Delaney from Bryan spoke at the presser and cited polling, repeated in a couple of the above-linked stories, showing 61 percent support among Texans asked a polling question which nearly exactly described Rep. Moody's bill (civil penalty, $100 fine).

The flip side is that Texas law criminalizes everything legislators don't like, even stuff that in other states is covered by civil regulations like business practices (which is why we have eleven different felonies in Texas you can commit with an oyster). So the bill cuts against the state's routine practices and may face nonpayment problems when JP courts begin to adjudicate cases. The best analogy may be red-light cameras, tickets from which are among the only comparable "civil" offenses in Texas and have poorer-than-touted payment rates. OTOH, other states have managed to crack this nut and use civil penalties for lesser offenses, so it's not as though it can't be done. And avoiding collateral consequences for a drug conviction is a big deal.

Good luck, Rep. Moody. Here's hoping you've brought the right bill at the right political moment.


Anonymous said...

The bill requires the district or county attorney of the county in which the marijuana was possessed to "bring an action" in "the justice court of the county" to collect the civil penalty; however, the bill also requires the peace officer to issue the person a citation that gives "notice of the time and place the person must appear before a justice court". How do these two provisions work together? Also, don't most or all counties have more than one JP.

The bill says the amount of the civil penalty imposed by the JP can't exceed $100. Can Grits or anyone else tell us how much, if any, are the court costs associated with suing someone in JP court?

The bill does not say. Can Grits or anyone else tell us:

(1) what happens if the person doesn't respond to the suit brought against them by the county or district attorney, or doesn't show up in court?

(2) is the person entitled to a jury trial in the civil action?

(3) what happens if the person can't or won't pay the civil penalty?

Anonymous said...

The bill is no different than a parking ticket given at a parking meter. Parking meter tickets are a civil penalty which results in fines usually $25-$60. These citations are processed in municipal courts and JP courts all the time.

Red light camera tickets are another form of civil penalties. Civil penalties are used all the time and should not be an issued when filed in municipal and JP courts.

Anonymous said...

To 6:09,

It is interesting that the bill text says that an offender must appear before a court, but advocates for the bill appear to be claiming that an offender could pay the civil penalty through the mail.

Perhaps the language in parking meter statutes is similar and the overall effect results in most people simply paying their fines through the mail with the DA or CA's permission.

As for what happens if someone can't or won't pay the penalty, I believe the same thing that happens if someone can't or won't pay a parking meter ticket or won't pay a red light camera ticket would apply. Most people are going to pay, some won't, but the overall bill will work just as other civil penalty laws work.

Moreover, the sky won't fall if this passes. This isn't some sort of experiment. There have been civil penalty laws relating to personal amounts of marijuana in some states for decades and these states did not experience an increase in use nor have they experienced any measurable increase in social ills.

Gritsforbreakfast said...

I don't know the specific answer to all the enforcement questions, as I mentioned in my earlier post on this bill. When I suss it out I'll post something on it.

I suspect 8:46 is right, though, that it's not dissimilar to other civil offenses like parking and red-light camera violations. Rep. Moody did mention to me specifically at the press conference that they'd looked at those models when drafting the bill.