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  • Nico LaHood Could be Saving Bexar County More Than $9 Million a Year

Nico LaHood Could be Saving Bexar County More Than $9 Million a Year

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Changes are in store for Harris County since Democrat Kim Ogg beat incumbent Republican Devon Anderson for the position of District Attorney in the November election. Not only has the new DA implemented a personnel turnover among the ranks of prosecuting attorneys, but she’s also held true to a campaign promise to no longer arrest people caught with zero to four ounces of marijuana.

Ogg announced the new program on February 16, 2017, which served to expand the already existent "First Chance" Program implemented by Anderson, allowing first-time offenders found in possession of zero to two ounces of marijuana to sign a form and complete community service hours rather than face arrest, prosecution, and jail time.

Kim Ogg LaHood

The major changes include the increased amount of marijuana (from 0-2 ounces to 0-4 ounces) that would no longer send someone to jail. As well, the program applies to those who have an arrest on their record for marijuana, or any other class B misdemeanor, or have previously been through Ogg’s program versus only first offenders under Anderson’s program. Lastly, Ogg’s program requires a four-hour drug treatment class versus the prior eight-hour class under Anderson. Failure to take the course within the requisite 90 days results in a warrant for the original marijuana charge.

The changes seem modest from our point of view (though clearly welcome), but the partisan reaction to Ogg’s program reveals the disingenuous politics that drive the war on drugs.

A little background—
In 2007, Republican State Representative Jerry Madden and State Senator Kel Seliger sponsored HB 2391, a bill allowing police officers to issue a citation requiring appearance before a magistrate at some time in the future for certain specified offenses—marijuana possession between zero and four ounces among them—rather than requiring a suspect be immediately brought before a magistrate judge.

The thought behind the bill was that, upon the authority of the District Attorney, localities should be able to manage their resources to target more serious crime. The legislature identified non-violent offenses it deemed less of a public safety risk.

Counties did not start taking this bill seriously until Travis County began their arrest diversion program sometime around 2012. Dallas County has also been experimenting with their own program since 2013.

Anderson announced her program in October 2014.

So, a Republican-backed bill passed by a Republican-majority legislature allowed a Republican District Attorney to enact a program such that people in possession of small amounts of marijuana no longer face arrest.

When the Democratic successor expands the program, however, Republicans suddenly have complaints.

Brett Ligon, the District Attorney in Montgomery County, quickly issued a press release in response to Ogg’s announcement saying in part, “No one has the right to choose to disregard the laws of the state of Texas. As the elected district attorney, you've got one job and that's to enforce the laws. If you want to change the laws, then run for state rep or state senator.”

Lt. Governor Dan Patrick also weighed in through a spokesperson to the Texas Tribune, commenting, “[Patrick] does not believe that law enforcement has the discretion to choose what laws to enforce and what laws to ignore,” spokesman Alejandro Garcia said in a statement.

Lt. Governor Patrick happened to be the single no vote against HB 2391 in the entire legislature, but the bill did indeed pass into law.

The Vice Chair of the Texas Senate Criminal Justice Committee and former criminal district court judge, State Sen. Joan Huffman, also gave a statement to the Tribune, the piece noting, “While she supports some programs, such as pre-arrest diversion for first-time youthful offenders, the Harris County policy ‘goes too far.’”

“‘It's bad for the County, bad for our kids, and good for the drug dealers,’ she said.”

Houston-area State Rep. Jim Murphy, who actually voted for HB 2391, was quoted in the same Tribune piece saying, “We should enforce the laws we have. If we need to change them, we need to have that conversation and be conscious and deliberate about it, as opposed to every jurisdiction kind of doing for itself what it wants.”

Another Houston-area legislator, State Sen. Paul Bettencourt, told the Houston Chronicle, “I can strongly suggest that the support is there [in the Senate Republican Caucus] to continue the penalties that are in effect now. This issue is absolutely partisan: A Republican DA in Montgomery County says it's wrong and the Democratic DA in Harris County says is right. There's obviously an element in the state that thinks this is a good idea, and an element that does not.”

Does Sen. Bettencourt really have such a lapse in memory that he forgot the Republican DA’s establishment of the program?

We argue this is not a partisan issue. It’s a budgetary issue. Where are a county’s resources best spent to effect public safety?

DA Ogg says Harris County could save $10 million per year by diverting 12,000 people from going to jail.

Ogg said at her press conference, “We have spent in excess of $250 million, over a quarter-billion dollars, prosecuting a crime that has produced no tangible evidence of improved public safety. We have disqualified, unnecessarily, thousands of people from greater job, housing and educational opportunities by giving them a criminal record for what is, in effect, a minor law violation.”

So what is Bexar County doing?

Using arrest data from a public records request and Ogg’s economic inputs, we calculated the following rough costs of enforcing marijuana possession laws in Bexar County:

Bexar County Marijuana Arrests Chart.

Where does Bexar County District Attorney Nico LaHood stand?

In Dec. 30, 2014, the San Antonio Current reported:

Bexar County’s new District Attorney, Nico LaHood, said he supports exploring whether Bexar County should implement a 2007 Texas law that allows police officers to cite people accused of Class B misdemeanors rather than arresting and jailing suspects.

"I supported looking into it the last time I ran," LaHood said of his 2010 loss to outgoing DA Susan Reed.

However, for LaHood, the question isn't whether he supports the law. “It’s not that simple,” he said. “Can we effectively and efficiently apply it in the justice system? . . . Every community is different.”

A year later, in August 17, 2015, LaHood was again asked about the potential of a cite-and-release program in Bexar County, this time by KSAT:

District Attorney Nico LaHood touted the benefits Monday of ticketing suspects accused of low-level crimes rather than arresting them.
. . . .
LaHood says he needs to consult with local law enforcement agencies to see if they support the practice and then determine whether it’s something the Bexar County court system can handle.


On April 20, 2016, KENS covered 420 events and asked DA LaHood about his strategy on marijuana:

San Antonio’s district attorney says he already goes easy on those caught with weed for personal use.

“I changed the practice around here and someone with a small, personal use of marijuana, usually if there's no priors, qualifies for pre-trial diversion. It's a wonderful opportunity for someone not to have a record,” Bexar County District Attorney Nico Lahood said.

LaHood flirted with the idea of inquiring into cite-and-release, but after more than two years in office, he’s shifted back to the default position of ‘arrest and offer pre-trial diversion.’

That makes no sense for public safety or for the lives of the mostly young people who get arrested for marijuana. First, police are off the beat for many more hours than necessary. Second, a defendant’s requirements under a pre-trial diversion program look very similar to requirements DA LaHood could enforce under a pre-charge program.

Is LaHood finally ready to embrace this policy? Bexar County taxpayers certainly hope so.

More information on Harris County's program:
Program Details – Misdemeanor Marijuana Diversion Program
Economics of Marijuana Arrests in Harris County

Requirements of the MMDP. Offender must:

  • Sign Program Acknowledgement & Acceptance Form acknowledging intent to participate and to complete program within 90 days;
  • Complete the MMDP class within 90 calendar days of detention;
  • Not break the law (excluding Class C offenses) during the 90-day period;
  • Pay a $150 program fee, which may be waived if Offender is determined by the HCCCS&D to be indigent; and
  • Complete a 4-hour “Cognitive Decision Making” class through the HCCCS&D.

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