Kyle police issued only a single cite and release citation throughout 2018, making the department the least likely user of the policy in Hays County, according to data recently provided by Hays County Criminal Justice Analyst Samantha Jones at the request of County Commissioner Debbie Ingalsbe.
Cite and release applies to offenses including low-level marijuana offenses (four ounces or less), criminal mischief $100 to $749, graffiti $100 to $2,449, theft and theft of service $100 to $749, possession of contraband in a correctional facility by an employee or volunteer and driving while license valid. Although the policy allows individuals to avoid jail, they still face all legal consequences.
In the Kyle case, a 31-year-old Hispanic person, who had three prior non-violent arrests, was caught with between two and four ounces of marijuana and was able avoid arrest and go through the cite and release diversion program, according to county data. However, 28 other people charged with the same offense went to jail.
Kyle Police Chief Jeff Barnet was surprised anyone was cleared for cite and release because Kyle police department’s electronic ticket machine does not have a cite and release option.
“We haven’t been able to review the data to see if even that one person was correctly cited and released because the real answer could be zero,” Barnett said.
Barnett said that the Kyle Police Department is not against cite and release, but that the current ticket software doesn’t allow officers the option to easily give out cite and release tickets.
“Everybody in the county is trying to resolve this or make it more efficient. The cite and release path is hand-written tickets — someone physically drives the written reports to a judge’s office in San Marcos and subsequently sends electronically. With all other cases we simply send electronically,” Barnett said.
Barnett said the technology needs to catch up with the desire to do cite and release.
“If the technology can be adjusted where the cite and release program is just as efficient as all other processes, that would be a big step towards making cite and release more available to the officers in the field,” he said.
Under the current system, San Marcos Police can handle these citations the easiest, Barnett said. San Marcos has a 6 percent usage of cite and release.
The data provided clearly shows that the county as a whole seldom uses cite and release. Buda Police released 8 people with a citation out of 11 people who committed eligible charges. They Hays County Sheriff’s Office gave citations to 8 people out of 101 people who committed eligible offenses.
In Kyle, only the one person was reported cited and released out of 158 eligible offenses, according to data provided by Hays County.
Barnett said the data provided by the county does not include several things that could disqualify a person for cite and release. If a person commits a crime eligible for cite and release, they can be denied if they have an active arrest warrant, live outside Hays County, were intoxicated at the time or committed the eligible offense in the course of committing a non-eligible crime.
“I would just urge caution. Don’t count all these up and say Kyle PD didn’t do it 400 times because there might have been only 200 times that the officer could have given a cite and release,” Barnett said.
Additionally, he said the county data does not include when officers give a break to an offender by writing a municipal ticket.
“There are occasions that a person commits a crime that might be a Class B offense and might be eligible for cite and release. However, there are other offenses that they are also committing that are eligible for a Class C Misdemeanor. The officer could give a higher level charge or give a citation, which would lead them to the municipal court with less fines than the Class B and up court system,” Barnett said.
Despite alternative approaches to cite and release, Kyle Councilwoman Daphne Sanchez Tenorio said that the county needs to come together to make the cite and release process easier for police county wide to implement.
“I look forward to working with the chief and with the community and finding a way to not only implement a plan but to review other plans, pulling out the best part of those plans and creating a true workable action,” Tenorio said.
She said there have been limited discussions within the county about making cities and the county connected.
“We’re working towards getting to the point where all of our paperwork as a county is together. This isn’t just a city of Kyle issue, it’s more of an issue for the whole region,” Tenorio said.
She said Barnett can only do so much, but that it’s the job of elected officials to take the reins and solve the disconnect.
“I want to have the best program, and if that means creating a committee to start talking about this or a conversation with the chief, I am happy to facilitate. There has to be a starting point and that can be talking with the chief, but we need to find a plan,” Tenorio said.
Cite and release has been an option in Hays County for a few years now but there is a push on for cite and divert, a policy that would provide a pathway for the person’s record to be cleared of the charge if they follow certain protocols.
On Monday, Sept. 30, county commissioners and the San Marcos City Council will hold a joint session to hear a presentation on L.E.A.D. (Law Enforcement Assisted Diversion) at 3 p.m. in the San Marcos City Hall, 630 E. Hopkins Street.
For individuals to qualify for cite and divert, they would have to be either a resident of the county where the offense occurred, a student of an educational facility in the county, or be employed in the county.
Additionally, the county’s district attorney may order participants to attend courses including educational resources, surrendering, impact education and alcohol and drug offender education. Cost of the courses range from $60 to $100 and would be borne by the offender.
Cite and divert policies have increasingly come to the forefront in Texas as counties struggle to deal with the Legislature’s legalization of hemp and the lack of available laboratories to test whether seized substances are hemp or marijuana, which is still illegal in the state and classified as a Schedule I federal offense. Hays County DA Wes Mau has said he intends to keep prosecuting those cases.
If Hays County adopts the “Cite & Divert” police, it would be the first Texas county to do so. If it happens, it would be against a backdrop of ongoing jail overcrowding that currently forces the county to outsource inmates elsewhere, and to pay other counties in the process.