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Top Bell County prosecutor says proposed marijuana 'decriminalization' won't stop the county from bringing charges

Some Killeen residents want to decriminalize marijuana in the city. County Attorney Jim Nichols said people can still be charged, and punished, regardless.

KILLEEN, Texas — Killeen residents will be able to vote in November for a marijuana decriminalization ordinance that would prevent police from arresting people for Class A or Class B misdemeanor possession of marijuana offenses, except in limited circumstances such as a felony investigation.

That vote might not matter. 

Bell County Attorney Jim Nichols told 6 News Thursday there is an important justice system distinction on this issue that people need to understand before they find themselves in trouble. 

In Bell County, the "County Attorney" is in charge of prosecuting all misdemeanor offenses and juvenile offenses. The position is a counterpart to the District Attorney position, which handles felonies. Possession of marijuana under four ounces would typically translate to a Class A or Class B misdemeanor. 

This means the County Attorney's Office is the agency actually changing individuals for "possession of a controlled substance," which marijuana falls into, and a City of Killeen ordinance would do nothing to change that. 

"We don't need permission from the individual cities to prosecute a case," Nichols said. "That's not their jurisdiction. That's not their lane they get to drive in."

Even if the decriminalization ordinance were to pass, the County Attorney's office could still receive cases or reports use those reports to charge individuals in the city of Killeen.

While police may not arrest an individual for possession of a controlled substance, it's possible police could arrest a person on suspicion of another crime, and that possession would still be in report. 

The Killeen Police Department also works with other law enforcement agencies on crime in the city, and those agencies can still arrest individuals and write reports as well. 

"Certainly we have multi-jurisdictional task forces that will make arrests in Killeen even though they are not Killeen police officers," Nichols said. 

Additionally, according to the proposed ordinance, "....if a Killeen police officer has probable cause to believe that a substance is marijuana, an officer may seize the marijuana. If the officer seizes the marijuana, they must write a detailed report and release the individual if possession of marijuana is the sole charge."

It's possible those reports could be used by the County Attorney's office as well. 

Nichols also told 6 News the ordinance would lead to complications between the city and police officers. 

The ordinance states, "Any violation of this chapter may subject a Killeen police officer to discipline as provided by the Texas Local Government Code or as provided in City policy."

Nichols said a police officer could possibly seek legal recourse if they were punished for continuing to follow state law. 

"You have a situation where an invalid ordinance is being used to punish somebody for doing their lawful job. I don't pretend to be a civil lawyer but that is a real problem in terms of opening yourself up to liability and being sued," Nichols said. 

Regardless of whether the ordinance passes or not, Nichols said nothing would change in Bell County in regards to what was considered legal and illegal. He said he doesn't want to see any Killeen citizens get into trouble because they believed marijuana was becoming legal to some extent. 

"An individual city cannot make something legal that the state, on a statewide basis, has made illegal. What they (supporters of the ordinance) are trying to do is say that the state law doesn't apply to the geography of the city of Killeen, and they don't have the power to do that," Nichols said. 

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