How Years of Organizing Put Drug Reform and Diversion on the Ballot in Central Texas

The demands of a reform group in Hays County have become focal points in the upcoming DA race and a “Reeferendum” in the city of San Marcos.

Michael Barajas | October 21, 2022

Sam Benavidez is an activist with the Central Texas organization Mano Amiga, which is pushing for criminal justice reforms in Hays and surrounding counties (Courtesy Eric Morales)

On July 8, 2021, activists in Central Texas showed up at the office of Hays County District Attorney Wes Mau to deliver a cake with blue icing that spelled out the words “Failed Promise.”

They were commemorating the anniversary of a commitment Mau and other local law enforcement officials had made a year earlier, in the summer of 2020, to give people charged with certain low-level crimes, such as marijuana possession and driving with a suspended license, a way to avoid prosecution altogether by completing a court program or community service. Activists with the local group Mano Amiga (“helping hand” in Spanish) had pushed for a so-called cite-and-divert policy for more than a year as part of a larger campaign to roll back the kind of punitive, zero-tolerance policing and prosecution that have defined this county for decades, despite its close proximity to Austin, the state’s liberal capital city.

At first, Mano Amiga activists like Jordan Buckley, who co-founded the group, cheered officials for finally agreeing to reforms. But then Mau dragged his feet so long that a whole year passed without a cite-and-divert program—hence the “happy birthday” party hat that Buckley ironically wore as he stood outside the Hays County government building last summer accusing the Republican DA of failing to live up to his word.

“There have been scores of people who have been needlessly arrested for petty offenses and kept these petty offenses on their criminal record because our district attorney’s word is empty,” Buckley said before he and other activists walked the cake up to the DA’s office to offer him a slice (Mau never came out). “In Austin, for example, no one gets a criminal record for possession of marijuana,” Buckley said, “and yet it’s one of the leading arrest charges in Hays County because our district attorney is such a hardliner on cannabis.”

Organizing by Mano Amiga since last summer has helped turn this November’s elections into a referendum on both marijuana decriminalization and pretrial diversion in Hays County. Activists with Mano Amiga gathered enough signatures to put a measure on the ballot this year that would end citations and arrests for possession of up to four ounces of marijuana in the city of San Marcos, the county seat and home to one of the state’s largest public universities.

This politically competitive county is also voting for a new DA. Mau is retiring, and the race to replace him could pave the way for the kind of pretrial diversion program that local activists have demanded, and officials have promised, for years. While GOP nominee David Puryear echoes the anti-reform, tough-on-crime rhetoric of state and national Republicans, Democratic nominee Kelly Higgins vows a “sea change” in the county. He has promised to decline prosecution of cannabis possession and at last implement a cite-and-divert program for other low-level charges.

Higgins would also add to the growing roster of reform-minded officials in Hays County, the fastest growing county in the nation—a reflection of the larger population boom in the I-35 corridor between San Antonio and Austin. Some of those officials attended and spoke at a “Reeferendum Fest” Mano Amiga activists threw earlier this month to drum up attention to the ballot measure in San Marcos—including County Judge Ruben Becerra, a Democrat first elected to lead the county in 2018 on a platform of criminal justice reforms and who is seeking re-election this year.

When Higgins addressed the “Reeferendum” crowd,” he directly referred to the cite-and-divert policy. “I’m telling you it will happen,” he told activists. “I’m promising you it will happen.”

San Marcos activists founded Mano Amiga in 2017 soon after Texas adopted a “show me your papers” law, Senate Bill 4, allowing local cops to investigate the immigration status of anyone they detain. At first the group focused on assisting immigrants caught in detention and at risk of deportation due to arrest for minor charges, but eventually their scope grew.

“SB4 intensified what is commonly referred to as the ‘jail to deportation pipeline’ and made immigrant rights groups like ours, which primarily focused on deportation defense campaigns, realize we needed to push for systemic change that benefits citizens and non-citizens alike, keeping all our neighbors safe from the legal system and deportation,” Mano Amiga communications director Sam Benavides told me.

One of the group’s first broader policy demands was an ordinance requiring local police to issue citations for minor charges rather than the typical custom of hauling people off to jail over petty things like pot possession; while Texas law has allowed cities and counties to implement so-called cite-and-release policies since at least 2007, small-time marijuana possession remained the leading charge for arrest in Hays County for years. Activists called the policy a racial justice issue: Black people, who comprise about 5 percent of San Marcos’ population, accounted for nearly one third of low-level marijuana arrests in the city, and were almost always arrested over citation-eligible offenses.

About a year after local activists started pushing for it, San Marcos became the first city in Texas to adopt an ordinance directing police to issue citations over making arrests for most low-level crimes with certain exceptions, like when someone is suspected of assault or family violence; larger cities nearby like San Antonio only managed to pass “resolutions” that simply suggested cops favor citations. The ordinance narrowly passed the city council over intense opposition from both the San Marcos Police Officers’ Association and the Combined Law Enforcement Associations of Texas, a statewide police union.

The local and state police unions haven’t taken a public position on this year’s referendum to decriminalize marijuana possession in San Marcos. But they have endorsed Puryear, the GOP nominee to replace Mau, the outgoing DA who has taken a notably hard stance on marijuana possession, even as state law made it increasingly difficult and costly to prosecute.

Puryear, a former prosecutor and appeals court judge who didn’t respond to multiple interview requests for this story, has run in part on demonizing neighboring Travis County—which elected a reform-minded prosecutor who vowed to not prosecute drug possession in 2020. Travis is also home to the city of Austin, which voted to decriminalize small-time marijuana possession earlier this year.

“Crime victims should know that we will doggedly pursue justice for them and criminals should know this isn’t Travis County,” Puryear wrote in one social media post soon after filing to run for DA. His campaign website states, “Dangerous ‘soft on crime' policies have led to an exponential rise in robberies, sexual assaults, and murder in Austin and the surrounding counties.” (Data shows that violent offenses have increased statewide in Texas, as well as in counties around the nation irrespective of the politics of their lead prosecutors.)

Puryear has also publicly criticized Higgins, his opponent, for promising to not prosecute abortion under the state’s new criminal ban, a stance that other Democratic prosecutors and DA candidates in Texas and across the country have taken following the U.S. Supreme Court’s Dobbs ruling this summer overturning abortion rights. “To pick and choose which laws you will obey and enforce as DA, based on your personal feelings, sets an example of lawlessness and opens the door to chaos,” Puryear wrote in another social media post.

Puryear’s rhetoric against declination also clashes with another campaign promise from Higgins: The Democratic nominee has said he would decline to prosecute all cases of simple possession of cannabis, including THC oils and edibles that can still be charged as felonies in the state, and often still are in Hays County, despite any individual town's efforts to decriminalize. Higgins, a longtime defense attorney in Central Texas, argues that the hardline stance on marijuana is a sign of deeper dysfunction at the DA’s office.

“The general impression that you'll find if you talk to everyone in the courthouse is that the DA's office is sluggish and vicious—they will charge anything if they can possibly construe as a crime,” Higgins told me.

“The goals there are not to pursue justice, which is the oath, but to train up your prosecutors to get them more trials, and to be more unreasonable in plea offers to drive cases to trial,” he said. “That includes cases that in no other county would get tried to a jury, like vape pen cases.”

Mano Amiga organizers gathered signatured for a marijuana decriminalization initiative (Mano Amiga/Facebook)

But as much as Higgins’s approach to cannabis is clear (don’t prosecute it), his plans for a cite-and-divert policy in Hays County are more vague. Activists at Mano Amiga have advocated for pretrial diversion not just for misdemeanors but also possession of small amounts of other drugs that still carry felony charges. They want a policy that provides alternatives to plea deals, criminal convictions, and prison time for low-level crimes like substance use, and programs that steer people toward services and treatment instead of punishment.

“If there is any district attorney out there who actually wants to bring about real community change, and they don't want it to be a dog and pony show, then they would create a cite-and-divert program to address felony drug offenses,” Mano Amiga policy director Eric Martinez told me.

When I asked what would be covered by his vision of a pre-charge diversion program, Higgins told me, “The general rubric of party drugs, Friday night, what’s in your blue jeans,” before quickly pivoting to concerns about fentanyl and drug trafficking. “The rise of fentanyl is inhibiting my ability to be very, you know, liberal about a cite-and-divert program,” he said. “I'm not worried about things like THC and things where fentanyl doesn't appear.”

Higgins admitted that his thinking on the issue had evolved while campaigning, crediting local activists with helping expand his idea of reform. “Talking with groups like Mano Amiga, and I mean specifically talking with Sam Benavides at Mano Amiga, I got a little educated about what cite-and-divert means, and it is pretty attractive to me,” Higgins said.

He sounded more resolute when speaking at the group’s “Reeferendum Fest” the following day, including the same word—promise—that activists had put on a cake to mock the last DA for failing to deliver.

Local activists have long pushed reform on another issue: They criticize the often yearslong pretrial detention of people in the county jail, and demand fair representation for people accused of crimes who can’t afford to hire their own defense attorney.

The long ordeal of Cyrus Gray underscores the stakes. In 2018, Gray was one of two people arrested and charged with capital murder in the 2015 death of another Texas State University student. Because he couldn’t afford his own lawyer and Hays County didn’t have a public defender’s office to help indigent people accused of crimes, a judge appointed a private attorney to represent Gray, who has maintained his innocence since his arrest.

Gray has been detained pretrial inside the Hays County jail ever since. He has had two court-appointed lawyers during his more than four years in pretrial detention—the first of which, according to Gray, hardly represented him.

“He came to see me three times within two years, and every time came to see me he tried to convince me to take a plea deal for 45 years (in prison),” Gray told me in a phone call from the Hays County jail earlier this month. “I would express to him, ‘I didn’t do anything, why would I willingly take 45 years of my life in prison knowing I didn't do anything?’ And then immediately he'd find an excuse to leave—so these conversations would be like 10 minutes long.”

Gray’s prosecution, which has generated local controversy, ended in a mistrial last month when jurors remained deadlocked after three days of deliberations. One juror who favored acquittal has publicly criticized police and prosecutors for bringing a flawed case (as of this writing, Mau’s office has said it plans to retry Gray at the end of this month).

“Witnesses were badgered and harassed on the stand in ways that felt far beyond even a confrontational cross-examination,” the juror, Melinda Rothouse, recently wrote in an essay published in the Texas Observer. “The accused man’s friends had been coerced, threatened, intimidated and treated as suspects themselves by investigators to the point that implicating the defendant seemed to offer their only way out from under the thumb of the system.”

Others like Gray are also spending years in the Hays County jail without a trial, the Austin Chronicle reported last month. Gray says they also go months or even years without seeing their appointed defenders. The Chronicle also described dangerous and degrading conditions, including unchecked violence and poor medical care—problems that plague local jails across the state.

In recent years, activists with Mano Amiga have rallied around Gray’s case to argue for the need for a local public defender’s office to improve representation and overall conditions in the legal system. After years of activists organizing around the issue, Hays County commissioners voted unanimously this past spring to allocate $5 million in federal stimulus funds to build a new public defender’s office, which has yet to launch.

Along with monitoring the implementation of the nascent public defender’s office and rallying for marijuana decriminalization, activists with Mano Amiga are already planning for how future elections could reform local law enforcement.

Last month, Mano Amiga activists began the process of gathering the signatures needed to put an item on the local ballot next year to overturn the contract that the San Marcos city council recently approved with the city’s police union. Activists, along with the life partner of a woman killed in a car crash with an off-duty deputy, had pushed for disciplinary and transparency reforms to the contract, none of which were included. The campaign to repeal the police union contract follows a similar effort by San Antonio activists to put an ordinance before voters to curtail police union power, a measure which narrowly lost last year.

As Hays County has grown, it has also shifted blue. Biden carried the county in 2020 after six consecutive wins for GOP presidential candidates, though elections there remain competitive.

To Benavides, the organizing behind this year’s ballot measures is larger than the individual issues at hand because of how activism has started to reorient power in Hays County. “For me it’s so much bigger than any policy itself, it’s about showing people the power that they have as a collective,” she told me.

Gathering signatures and organizing for reforms has also underscored the need for change. “Every time we knock on doors we hear from people saying how they've been abused or mistreated by law enforcement,” Benavides told me. She says Mano Amiga has started branching out to help organize and push for reforms in surrounding counties.

“I feel like there isn't enough emphasis on the organizing going on in rural communities,” she added. “There's so much going on in San Antonio, so much going on in Austin, and our goal is to bridge that gap and help build a corridor of resistance.”

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