Two days before its lawsuit against the city of Harker Heights is to be heard in Bell County district court, Ground Game Texas has amended its suit, which has led to a delay in Friday’s scheduled proceedings.
Harker Heights City Manager David Mitchell on Wednesday told the Herald that Ground Game Texas — an Austin-based progressive organization that pushed for the passage of a marijuana decriminalization ordinance in the city — has amended its suit to include all elected city officials.
The original petition, filed with 146th District Court on Nov. 30, named only Mitchell and City Secretary Julie Helsham as defendants.
Mitchell said City Attorney Charles Olson informed him of the amended petition and confirmed that the scheduled hearing had been postponed.
Friday’s hearing in the 146th District Court in Belton had been scheduled to begin at 9 a.m.
Ground Game is taking the city to court because the Harker Heights City Council repealed the marijuana decriminalization ordinance shortly after voters approved it in November 2022, citing the measure’s conflict with state law.
A subsequent referendum calling for the council repeal to be reversed last May narrowly passed, but again the city refused to put the measure on the city’s books.
After a failed attempt to talk city officials into codifying the ordinance, Ground Game went to court late last fall.
Harker Heights filed its 12-page response to the Ground Game suit on Dec. 27 in 146th District Court.
Ground Game Texas initiated a successful petition drive to put the ordinance, known as Proposition A, on the city’s November 2022 election ballot.
Proposition A prevents the city’s police department from enforcing misdemeanor marijuana violations, which Ground Game Texas has previously referred to as “de-prioritization.”
Though the measure passed with about 64% of the vote, the Harker Heights City Council, in a 4-1 vote, repealed the ordinance, asserting that it contradicted state law and was therefore illegal and unenforceable.
In its late December court filing, the city — in a document submitted by City Attorney Charles D. Olson — argued that the defendants are immune from suit and liability because of their governmental immunity.
Further, the city argues, the ordinance in question is “unconstitutional, void, contrary to Texas law and unenforceable and invalid.”
Finally, the city asserts that the referendum election in May 2023 did not “revive the illegal and unenforceable ordinance which is the subject of the Plaintiff’s action.”
In general, the city argues that the ordinance violates Texas statutory law and the Texas Constitution, and the plaintiff, Ground Game Texas, therefore lacks standing to seek “illegal and void relief.”
The city also argues that the ordinance would require the city’s police officers to ignore state law, in violation of the state’s criminal code.
Also, the filing notes that the Texas Constitution places a limitation on the legislative power of the City Council and the city’s residents.
Specifically, the city’s filing points to a passage in the Constitution that reads: “No charter or any ordinance passed under said charter shall contain a provision inconsistent with the Constitution of the State, or the general laws enacted by the Legislature of the State.”
Regarding Ground Game’s assertion that the marijuana ordinance must be published in the city’s Code of Ordinances, the filing notes that codification is expressly made discretionary by the city’s charter, and there is no specified time frame for codifying an ordinance.
In summary, the filing notes that the ordinance that the plaintiff wants published was repealed — and remains repealed.
Ground Game’s executive director, attorney Julie Oliver, remarked after the organization’s lawsuit filing last year that the action was taken because the city’s voters were being ignored.
“This lawsuit is about enforcing the will of the voters,” Oliver said in a Dec. 5 news release. “Harker Heights officials are undermining local democracy by disregarding the clear language of the city charter.
“Whatever policy disagreements the City Manager or City Secretary might have with the voters who approved Proposition A, it’s not the job of city staff to ignore the result of a lawful initiative election. We attempted to negotiate with the City Manager and City Attorney but they ignored our attempts. Now we are fighting for the rights of Harker Heights voters in Bell County District Court.”
Ground Game is joining the city of Killeen in defending the city against Bell County in the county’s lawsuit over that city’s enactment of Proposition A.
The state attorney general’s office has also filed suit against Killeen and four other cities that have adopted marijuana decriminalization ordinances spearheaded by Ground Game Texas, on the grounds that the ordinances violate state law.