Two Plans for Misdemeanor Marijuana Possession Cases in Harris County – A Comparison

Devon Anderson - Kim Ogg

Earlier this week, Harris County District Attorney Devon Anderson announced a pilot program for first-time class B misdemeanor marijuana possession offenders. The program will go into effect on Oct. 6th and will allow some people accused of class B misdemeanor marijuana possession (up to 2 ounces) the chance to avoid a criminal charge or jail time if they complete the program.

As advocates for reforming marijuana laws and taking steps toward decriminalization, we applaud the Harris County District Attorney’s Office for taking on this issue and coming up with the First Chance Intervention Program. Incumbent DA Devon Anderson’s pilot program is an important step and we hope to see similar initiatives take place in other parts of Texas.

Anderson faces re-election on Nov. 4 against Democratic former chief felony prosecutor Kim Ogg. In July, Ogg announced her plan to address misdemeanor marijuana possession: To issue a court summons and release the accused person, instead of arresting and jailing them, and allow offenders the chance to get their charges dismissed after completing community service.

The District Attorney’s Office does not have the power to legalize or decriminalize marijuana, but can determine how these cases are prosecuted and prioritized. We are pleased that both candidates this year have offered plans to curb imprisonment due to minor marijuana offenses.

The two plans are similar in some ways, but differ significantly. The intent of Ogg’s plan is to divert law enforcement resources away from marijuana possession offenses so they can focus on dangerous crimes. Anderson’s program is intended to make sure people accused of marijuana possession are “scared straight,” as she worded it to the Houston Chronicle.

Anderson’s Program: First Chance Intervention Program

Under Anderson’s pilot program, a person accused of a Class B misdemeanor marijuana possession offense (up to 2 ounces) is taken into custody by the Houston Police Department or Harris County Sheriff’s Deputies and transported to a police substation, where they are identified and fingerprinted. If the person is eligible for the First Chance Intervention Program, then the officer offers a conditional release via a Program Notice form, the offender can choose to acknowledge and agree to contact pre-trial services within 3 business days and schedule an intake appointment. If they agree to this, they can be released from custody with no formal charges filed. At the intake appointment, the individual is offered the First Chance Intervention Program after a short interview and assessment and after watching a video. They agree to the program by signing a participation agreement.

Persons accused by other law enforcement agencies (other HPD or HCSO) will be arrested, charged and jailed, then offered the program in Court. They are offered the program as a plea agreement, via a slightly different version of the participation agreement.

The individual is then placed on a form of probation that lasts either 60 or 90 days (as determined by the intake interview and assessment), they must not break any law, pay a $100 fee and complete either eight hours of community service or an eight-hour class.

The First Chance Intervention Program takes place entirely outside of the court system.

Ogg’s Plan: G.R.A.C.E.

Under Ogg’s plan, the accused person is not arrested, but instead, the officer issues a court summons for any class A or B misdemeanor marijuana offense involving possession of up to four ounces of marijuana. The person cited must appear before a magistrate in Court at the date listed on the citation, and may be represented by an attorney. A criminal charge is filed and the person appears in court to answer the charge. At the Court date, the individual is offered the G.R.A.C.E. (Government Resource Allocation/Criminal Exemption) program via plea agreement. He or she can also plead not guilty and fight the charges.

To complete the G.R.A.C.E. program, the individual must complete 16 hours of community service via the Clean & Green program. Picking up litter and cleaning along the bayous and waterwawys. Once this requirement is met, the DA’s office will dismiss the case. The individual can then have the charge expunged from their record after 1year under Texas’ current expungement law.

Eligibility for Programs

Who may participate in the program is a major difference between the two plans. Ogg’s plan will be open to any person charged with possessing up to two ounces of marijuana (a Class B misdemeanor) or two to four ounces (a Class A misdemeanor). That person’s criminal background, including prior possession charges, will not come into play.

Anderson’s program is only for those charged with a Class B misdemeanor for possession for the first time. To be eligible, a person can have no prior convictions for any crime other than a Class C misdemeanor, have never received probation or deferred adjudication, cannot be out on bond, have no warrants or holds and cannot be facing charges stemming from the original arrest.

Legal Basis for Procedures

Ogg’s plan is based on Texas Code of Criminal Procedure Art. 14.06. The law, called “cite and release” (H.B. 2391) was passed in 2007 by the Texas Legislature with overwhelming approval in both the Texas House (132 for; 0 against) and the Senate (29 for; 1 against). Specifically, this law allows law enforcement to cite and release people accused of certain misdemeanor offenses instead of arresting and jailing them. This includes misdemeanor marijuana possession. The plan follows standard procedure for deferred adjudication, and eventually allows for dismissal and expunction.

Due to its statutory structure, we are able to have a solid prediction of how the program would work:

  1. The person accused will NOT be arrested or taken into custody. (unless there is another charge stemming from the incident or the person has a warrant)
  2. The person WILL be issued a citation / court summons.
  3. A formal criminal charge WILL be filed against the person.
  4. The person WILL have to appear in Court. He or she can be represented by an attorney. If he or she fails to appear in court, an arrest warrant will be issued.
  5. The G.R.A.C.E. program will be offered as a plea agreement.
  6. The criminal charge will be DISMISSED after the person completes 16 hours of community service via the Clean & Green program.
  7. The criminal charge and dismissal WILL be on the person’s record and CAN be expunged after 1 year has passed.
  8. The program will be available to people in ALL of Harris County.

Anderson’s program is based on Texas Government Code § 76.011. The law that allows for pretrial intervention programs. The First Chance Intervention Program Fact Sheet can be found here. Based on the fact sheet, certain details regarding how the program is facilitated remain unclear and raise many questions. We have asked many of the following questions but have not received any clarification from the DA’s office. Upon further research, we have found some answers to some of the questions.

For persons accused of Class B misdemeanor marijuana possession of 2 ounces or less and are deemed eligible for the program:

  1. Is the person being arrested? (The fact sheet uses the word “detained” when referring to an encounter with HPD or HCSO and uses the word “arrested” when referring to an encounter with any other law enforcement agency).

  2. If an individual is detained by HPD or HCSO, and then transported to a police station, does this constitute an arrest? or an investigative detention?

    Anytime a person is transported, this does constitute an arrest, according to Kaup v. Texas. However, an arrest record is created as part of the booking process, when someone is booked into jail. If the individual is released from custody and not booked into jail, there is no arrest record.

  3. When the person is taken to the substation to be identified and fingerprinted, and then offered the First Chance Intervention Program, how does the individual agree to the program? By signing a document? If a document has to be signed, is the person admitting guilt or giving up any of their rights? If they sign an agreement or answer questions in order to assess eligibility for the program, are they making any statements that can be used against them at some later date? Can the individual have an attorney present at the substation prior to entering into any agreement and still participate in the program?

    Contrary to what the fact sheet implies, the individual is not agreeing to the First Chance Intervention Program at the police station. The individual is offered a conditional release, via the First Chance Intervention Program Notice agreement. The individual is agreeing to contact pre-trial services within 3 days to schedule an intake appointment. If they agree to this, they are released from custody and no formal criminal charge is filed at that time.

    It is still unclear whether or not the individual can consult with an attorney prior to signing the Program Notice or if the individual might be denied the option to participate if they invoke their Constitutional rights. It seems this would be at the discretion of the arresting officer. The officer must have probable cause to arrest someone, so as long as they have probable cause, they can file charges against someone at any time and then take them to jail.

    According to the HCSO department manual which instructs officers on how to facilitate the program, there is an exception, item III(B)(2), states: “Exception: The on-duty supervisor may authorize the filing of charges on an otherwise eligible offender when deemed appropriate.”

  4. If the person is detained but not arrested by HPD or HCSO, is the visit to the substation voluntary? Will the person be allowed to drive his or her own vehicle to the station? Will the person’s vehicle be impounded? Will the person be read the Miranda warning and afforded due process rights?

    The person is arrested and then released from custody, so the visit to the substation is not voluntary and the person’s vehicle will be impounded in most situations.

    Individuals who agree to participate in the program, are not afforded the basic Constitutional right of due process of law, because the program takes place entirely outside of the court system.

  5. If arrested or detained by HPD or HCSO and transported to the station, will there be a recording in a log of that arrest? A mugshot? Will any documents be created in that process? If so, are they public record?

  6. Will criminal charges ever be filed against an accused person who is eligible for the program, agrees to participate, and completes the program? If not, are there records relating to an arrest, or any other record that will need to be expunged?

  7. Will any of Harris County’s other 50+ law enforcement agencies (other than HPD and HCSO) be utilizing the program? (The fact sheet says “Under this pilot program, offenders arrested by an agency other than the HPD or the HCSO will be sent to jail and offered the program in Court.”)

  8. If avoiding jail is part of the program, how can someone be offered the same program in Court after already being sent to jail?

  9. If avoiding criminal charges is part of the program, how can someone be offered the same program at a Court appearance to which they are answering to a criminal charge?

  10. How much of a police officer’s total time is estimated to be occupied throughout the process of detaining the accused person, transporting them to a police substation, identifying, fingerprinting, informing them of the program, filing any necessary reports, and releasing them from custody?

  11. How many offenders will be brought into a police station or substation on a daily basis? Will they be a distraction to our law enforcement officials fulfilling their duties?

  12. Will people be treated equally across all of Harris County? Or will they be treated differently based on where in the county they are located or which law enforcement agency they encounter?

We hope to gain further clarity on these issues and will share this information with the public as soon as it becomes available.

A Step in the Right Direction

NORML advocates for policy in which responsible adults are not arrested, imprisoned, or criminalized for possessing cannabis. While neither candidate’s plan accomplishes all of these goals for everyone, we are very pleased that a new program is being implemented in Texas’ largest county that will ultimately reduce the number of people facing jail time and a criminal record for marijuana. It is a yet another sign — possibly the strongest local one yet — that the tide has turned in the way misdemeanor marijuana will be prosecuted in Texas.

Side-by-side comparison of Devon Anderson’s and Kim Ogg’s Plans for Dealing with Low-Level Marijuana Offenders

Devon Anderson’s Plan Kim Ogg’s Plan
Name First Chance Intervention Program (FCIP). G.R.A.C.E. (Government Resource Allocation/Criminal Exemption)
What amount of marijuana can someone be accused of possessing and be eligible for the program? Up to 2 ounces. (Class B misdemeanor). Up to 4 ounces. (Class A or B misdemeanor).
Who is eligible? A person who:
  • Possesses sufficient identifying information.
  • Has no additional charges stemming from the instant detention/arrest.
  • Has no additional outstanding warrants or holds (including Class C charges such as traffic violations).
  • Has no criminal convictions as an adult (Class B misdemeanor or greater).
  • Has never received probation or deferred adjudication (Class B misdemeanor or greater).
  • Is not currently on bond, deferred adjudication or probation (Class B offense or greater).
  • Has not participated in this program or another pretrial intervention program.

Anyone accused of possessing up to 4 ounces of marijuana. Previous criminal history is not a consideration.

Note: If other charges stem from the instant incident or if the suspect has an outstanding warrant, the suspect may be arrested on those bases, irrespective of the marijuana possession charge.

What happens to the suspect when detained? Suspect is transported to police station, identified and fingerprinted. If suspect is found to be eligible for the FCIP program they are offered a Program Notice which allows them to be released from custody if they agree to contact pre-trial services within three business days to schedule an intake appointment. Suspect is issued a citation (court summons) and is not further detained. Suspect must appear in Court at a later date, where they may opt into the G.R.A.C.E. program via a plea deal.
Is a criminal charge filed against the person? (assuming they are eligible for and complete the respective program) No Yes, (will be dismissed after the person completes the program) and can be expunged after 1 year
What must a suspect opting into the program do? Suspect must completea 60 day program with eight-hours of community service or a 90-day program with an eight our class. The suspect must also pay a $100 program fee. Suspect must complete two days of community service via the Clean & Green program
What happens when the suspect has completed the program? Suspect will not be charged with a crime and no charge or conviction will appear on his or her criminal record. Upon completion of the program, the suspect’s case is dismissed, and the charge can be expunged after 1 year.
What happens if the suspect does not complete the program? Charges are filed and a warrant will be issued for the suspect’s arrest. A warrant will be issued for the suspect’s arrest.
What law enforcement agencies are participating in the program?

The Houston Police Department (HPD) and the Harris County Sheriff’s Office (HCSO) are participating.

According to the DA’s office, those accused of a Class B misdemeanor marijuana possession offense by any of the other 50+ law enforcement agencies in Harris County will be arrested, taken to jail, and then offered the program in Court.

The program would be countywide and apply to all agencies.
What is the stated purpose of the program? To cause offenders to be "scared straight" so they don’t commit another offense and to give offenders a chance to “self-correct” and avoid jail time and a criminal record. Free up law enforcement resources to focus on higher priority criminal behavior.
When will the program be implemented? Oct. 6 2014 Immediately upon Kim Ogg taking office as the new Harris County DA (if elected to the office on election day Nov. 4, 2014)
Is the program permanent? The Harris County DA’s office characterizes the program as a 6-month “pilot program.” Ms. Ogg appears to be offering her program as permanent.

Note: The information contained on this page is NOT an endorsement of either program, or either candidate. It is provided for informational purposes only. The information contained on this page should not be construed to be legal advice.

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