Cite & Divert hailed as step towards greater justice

Anita Miller

Indigent rights activists are among those praising the adoption of a progressive criminal justice initiative announced by Hays County officials on Wednesday.

Sheriff Gary Cutler and District Attorney Wes Mau, both Republicans, announced that a Cite & Divert policy will be effective on Sept. 1 with the HCSO along with the police departments of Kyle, Buda, San Marcos and Texas State University.

The move is a step beyond the Cite & Release policy adopted by San Marcos PD earlier this year in that it gives officers the discretion to allow certain offenders the chance to avoid the criminal justice system entirely and keep their record clean.

The program, long supported by community organizations like Mano Amiga, had been discussed since 2019. However, in a joint announcement Wednesday afternoon, Cutler and Mau said issues including the rise of COVID-19 infections in the county jail spurred them to act. 

The announcement was made after the conclusion of a virtual meeting of the county’s Criminal Justice Coordinating Committee, which is chaired by the county’s Chief of Staff Alex Villalobos.

“We thank subcommittee chair Alex Villalobos and Commissioner Lon Shell for guiding this positive step forward in reducing excessive criminalization and jailing, but we urge the county to provide counsel for defendants, so no one is forced to speak directly to a prosecutor without advice from an attorney,” Mano Amiga’s Policy Director Eric Martinez said. 

Villalobos is also the Democratic candidate for sheriff and will face Cutler on the ballot in November.

Already, state laws allows (and the San Marcos ordinance mandates) that some low-level offenders be given citations instead of arrested. The person still has to go through the booking process, get a lawyer and show up in court. If found guilty, they will have to pay the fine. If found not guilty, they have to go through a process to have their record expunged.

Under Cite & Divert, however, officers also have the option to steer the person to a meeting with a prosecutor from the DA’s office  “who may determine that a course of diversion is most appropriate.” After the person satisfies the terms of the diversion, their record remains clear of that offense.

Eligible offense include misdemeanor marijuana possession and theft, driving with an invalid license and criminal mischief. More offenses could be added in the future, the news release says. 

The announcement also said plans were being made to provide defense counsel at the first meeting between the offender and a prosecutor.

On Tuesday, Mau won approval from the Commissioners Court to hire an attorney for the purposes of participating in an ongoing study of having defense counsel present at magistration (when offenders who have been arrested first meet with a judge who will set or refuse bond).

The study is one of a number of steps towards improving the county’s criminal justice system commissioners have undertaken in the past few years. 

Another is the establishment of a Magistration Division that allow for more offenders to see a judge more rapidly and somewhat frees up justices of the peace from those duties. Additionally, the county has authorized a study of the jail’s population by the Vera Institute.

Of Cite & Divert, Mau said while officers “generally have the authority to arrest and jail” people for the offenses covered by Cite & Divert under certain circumstances (like other charges or outstanding warrants), the program provides another avenue, filling the gap between arrest and, for example, a warning.

“My goal here was to give officers — and minor offenders — an option between a no-arrest consequences warning and a booked-in-criminal-record arrest,” he said. “My hope is that we will be ale to ensure that the consequences for violating the law are sufficient to discourage repetition of the conduct in the cases where a full-blown court proceeding does not seem necessary or justified by the circumstances.”

“I believe the program is of the utmost importance,” Cutler said, “because while it maintains the discretion of our officers, it will also aid us in our efforts to reduce the number of person being brought to the jail for processing and housing.”

Mano Amigo founder Jordan Buckley said Villalobos was “an early and steady champion” of Cite & Divert, and also said Shell had paid a “key role in getting the ball into the end zone.” He also challenged Villalobos, who is a member of the Kyle City Council, to follow the lead of the county seat in pursuing a City & Release ordinance for that city.

Cutler also thanked Commissioners Lon Shell (Pct. 3) and Debbie Gonzales Ingalsbe (Pct. 1) and Criminal Justice Analyst Samantha Jones for their work on the initiative.

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