Does a county attorney with misdemeanor authority only have standing to file suit in a state district court against a city to overturn the Ground Game Texas ordinance eliminating marijuana enforcement for possession under 4 ounces? Is a declaratory judgment the proper remedy for ordinances that contravene the Penal and Health and Safety Codes? What are the arguments for a harm analysis for injunction?
I will share a few thoughts:
The harm is that police officers are required to try to prevent crime and arrest offenders by upholding the laws of the State and pursuing any violations they find. Thus, a city cannot elect to decide any particular criminal laws are not subject to enforcement. "Deciding whether uniform statewide regulation or nonregulation is preferable to a patchwork of local regulations is the Legislature's prerogative." City of Laredo v. Laredo Merchants Ass'n, 550 S.W.3d 586, 592-93 (Tex. 2018); Gonzales v. Raich , 545 U.S. 1, 22-29 (2005). State statutes must apply to all parts of the state and operate uniformly thoughout it.
Of course, Ground Game itself states that such ordinances do not legalize or de-criminalize possession of marijuana but just allow the city to determine how to deploy its police resources. See Hyman v. City of Salem, 1:19-cv-75 n.2 (N.D. W.Va. 2019); cf. State ex rel. Sensible Norwood v. Hamilton Cnty. Bd. of Elections, 69 N.E.3d 696, 700 (Ohio 2016)(recognizing that the proposed ordinance "was an attempt to govern the execution of existing law").
A city has "authority to adopt any ordinance 'that is necessary for the government, interest, welfare, or good order of the municipality,' provided that the ordinance is 'not inconsistent with state law.' See Tex. Loc. Gov't Code § 51.012 (2008)" City of Anahuac v. Morris, 484 S.W.3d 176, 181 (Tex. App. 2015); see also See Tex. Const. art. XI, § 5 (a); BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993).
As you note, the proper route to attack an ordinance is through a suit for declaratory judgment and injunction. Tex. Civ. Prac. & Rem. Code Ann. §37.004(a). The Attorney General is entitled to be heard. §37.006(b).
It seems to me that a County Attorney has standing as a plaintiff as a person whose legal relations are affected by such an ordinance, e.g., whose duties—concerning all criminal cases under examination in Bell County—are being interfered with. Cascos v. Cameron County Attorney, 319 S.W.3d 205, 223 (Tex. App. 2010).
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