Joe Negrete was stopped by Kyle police in April for rolling through a stop sign on Sunrise Drive near Bebee Road, just down the street from his home. He said he apologized to the officer, saying he was in a hurry and thatit would not happen again.
He said the officer then asked if he had anything in his truck. Onhis passenger seat was a sunglasses case with an ounce of marijuana. Negrete said he did not try to hide itand willingly surrendered the marijuana to the officer.
He said the officer took him home, searched his house for other drugs and foundnothing, and cited him forpossessionwithout taking him to jail.
Under the Hays Countycite-and-release program, officers have the discretion to cite peoplefor eligible low-level offenses and release them, but they must still report to jail for booking,resulting in a filedcriminal case.
“I started thanking God that I was not going back to jail,” he said. “I’ve been to jail before, and I have not been in trouble for a long time. I have a house and kids, and I like my freedom.”
Negrete was arrested twice after being pulled over inApril — being caught once more with an ounce of marijuana — and was booked into the county jail both times, which he said was expensive and scary, given the unknown state of the coronavirus in the early summer.
Under a cite-and-divert program, which Hays County had hoped to launch in the fall, Negretehoped he would've been eligible for diversionary procedures. Residents who have been cited for low-level crimes would work with a pretrial officer to complete an assigned class or counseling,or a community service project, which District Attorney Wes Mau said would depend on the crime, andkeeptheir record clean.
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However, the program, which would apply to low-level offensessuch as graffiti, possessing small amounts of marijuana, driving with a suspended license, low-level theft and criminal mischief, has been delayed for monthsas county officials navigate how best to start it.
“The cite-and-divert program is what I needed so that I can keep working, and maybe do classes or do community service,” he said. “I broke the law, and I know that, but I still have to pay lawyers, and I can't afford all that, especially with the pandemic happening.”
Mau saidNegrete would likely not have qualified for the programbecause he is a repeat offender and convicted felon andthe idea is to permit people with clean records to keep them clean if they have committed a minor offense and appear unlikely to reoffend.
In 2020, Mau said there were 122 county cases of cite-and-releasethat could have been eligible for diversion. The district attorney’s office screens about 5,000 cases annually.
“Some of the 122 offenders might fail to appear or won’t complete the program, but most will, and they avoid jail, so that is a little bit of savings for us and keeps officers on the street,” Mau said. “So it is a valuable option for officers and the county.”
In July, Mau and Hays County Sheriff Gary Cutler said in a statement that they planned to launch the cite-and-divert program Sept. 1 because of “current issues in inmate populations and COVID-19 concerns.”
Mau said Wednesday that the September deadline was “shortsighted on his part,”adding that it was when they believed COVID-19 restrictions would be lifted and trials could resume.
Additionally, he said, the project is more complicated than he anticipated and it is taking more time to figure out how to run in-house. Currently,probation programs are run by the Community Supervision Department, which is state-funded.
“That state funding requires them to enforce compliance with court orders and report back to a judge,” Mau said. “Pretrial stuff is not part of what they are designed to do, and asking to expand that beyond the bond program is a problem because that money from the state is only for court-order purposes. The point of the cite-and-divert program is not to involve a judge, so that creates a problem.”
But some Hays County activists have not only criticized Mau, saying he ishiding behind a technicality, but have said the longer the county delays the program, the more time there is for someone’s life to be disrupted.
“A program needs to become operational, and then they can sort out kinks as they go along,” said Eric Martinez, policy director with Mano Amiga, a local nonprofit that seeks to transform the criminal justice system. “Every day we delay this, the more lives are being upended by being put into the legal system for petty offenses.”
Mausaid the county hasa draft proposal similar to a programusedby Bexar County, which includes San Antonio, that would create a pretrial services department separate from the probation department.
Bexar County operates the pretrial service departmentand has trained its police officers to cite residents instead of arresting themunless there is a reason they can’t, such as an arrest warrant.
Christian Henricksen, chief of litigation at the Bexar County district attorney's office, said the officer instructs the person to go to the county’s reentry centerat a set time, and a pretrial services officer reviews the citation and determines whether diversion is appropriate.
“The way we view it," he said, "is the officer's decision to cite is independent of our decision for diversion.”
From July 2019 to June 2020, Henricksen said, this effort saved the county about $1.8 million in booking costs alone. Thatdoes not include the savings of other associated costs with people sitting in jail.
Mau said Hays County’s model would be done on a much smaller scalebut would embody some of the same principles. But he said the discretionfor diversion or cite-and-releasewould be left to the officers, which the law already allows.
“I do think there has to be some recognition of an officer’s discretion in these cases,” Mau said. “Officers deal with situations as they arehappening, and that needs to be taken into account. And if an officer feels they want to let the person go, they still have that option.”
San Marcos implemented a cite-and-release lawin June,becoming the first city in Texas to use the force of law to require that police give citations instead of arresting residents for many low-level, nonviolent crimes. Several Texas cities have cite-and-release programs, but San Marcos is the first to sign it into law.
Martinez said leaving it up to police is a cause for concern, saying that everyone who is eligible to enter the cite-and-divert program should be entered toeliminateany racial, ethnic or economic bias or inequities.
Mau said different police agencies have different policies on thisand said he plans to start those conversations with law enforcement agencies within the countyso everyone is on the same page.
With no timeline set on when theprogram would begin, Martinez said the delay has become more frustrating, and residents' health, safetyand rights are being disregarding.
“This is a community safety issue and a community justice issue,” Martinez said, “and I hope system actors truly care about residents of this county to get something operational as quickly as possible rather than months or years.”
