Harris County replaced marijuana diversion with prosecution. Now Houston votes.

By Jeff Reichman

Data • Public Policy • August 28, 2026

This fall, Houston voters will decide whether the Houston Police Department should deprioritize misdemeanor marijuana enforcement. The timing looks like a response to Ken Paxton. In 2024, he sued five Texas cities over their marijuana ordinances, citing a state law that bars cities from adopting policies that do not fully enforce drug laws.

Then I looked at the data. In Harris County, prosecutions were virtually non-existent for three years. But they started up again in September 2023, months before Paxton filed his lawsuit, and they continue to this day. So what kickstarted marijuana prosecutions? I went looking for answers.

I’ve been researching this topic in Houston for a decade. Ten years ago, I taught myself R by scraping jail records and building maps to show that marijuana arrests disproportionally affected middle and lower income people, even though studies show marijuana use is relatively consistent across race, ethnicity, and income. 

Then came the wave of so-called “progressive prosecutors” who were philosophically opposed to using state power to prosecute low level, non violent offenses like misdemeanor marijuana cases.

In Houston, that wasn’t a radical deal: it involved a handshake agreement between the DA and dozens of law enforcement agencies. People could still be arrested. But law enforcement could send them to a diversion program instead. This was largely successful, and I wrote about the decline in low level marijuana cases in 2018. 

This was also around the time that arrest data stopped being published. So while we could see the decline in prosecutions, there was no data to tell us if actual policing had changed. 

Since then, criminal justice in Harris County has been a complicated mess of case backlogs, disaster recovery, no-knock warrant murders, sad bravado, pension bailouts, personal vendettas, physical intimidation, and an opaque cite-and-release program. 

Then, after years of silence, marijuana prosecutions resumed suddenly. This is especially confusing for people today because there are so many variations of marijuana in Texas. Some of it is available at your local smoke shop. If you’re inclined to follow the law, it’s not clear what’s legal and what’s illegal.

Misdemeanor marijuana cases since 2010

After learning about the ballot initiative, I took a fresh look at marijuana cases in Harris County. What I found was quite surprising.

Here is what we know about the recent uptick in misdemeanor marijuana prosecutions:

• Cases went from near-zero in 2022 to over 1,500 in 2024. While these numbers aren’t as dramatic as pre-diversion program prosecutions, it is alarming that criminal justice policy has reverted without discussion.
• There is deeper racial disparity. Between 2005-2014, Black people accounted for about 50% of all defendants, which is 2.5x the share of the Black population in Harris County. In 2025, that went up to 75% of all defendants.
• 84.5% are charged on their own, 13.6% alongside another misdemeanor, and 1.9% alongside a felony.
• Many of the misdemeanor companions are traffic-stop offenses. In fact, 80 of 291 companions are “gun in motor vehicle.” Since 2021, carrying a handgun in your vehicle is lawful in Texas unless you’re engaged in criminal activity, such as possessing marijuana. So in a meaningful share of these cases, the marijuana charge creates the gun charge. And in most instances, both charges get dismissed.
• In 2025, 86% of the cases were dismissed.

What happened to the misdemeanor marijuana diversion program?

The misdemeanor marijuana diversion program covers possession of up to four ounces of marijuana — the same charges that I analyzed above. The spokesperson for Harris County District Attorney Sean Teare insists that the misdemeanor marijuana diversion program is “very robust” and remains in full effect. Yet the previous DA had already started backing away when she removed the diversion program website in 2023. The data and reporting on the program were still online as of May 2025, after Teare took office, but then they also disappeared. Luckily, I still have them. 

What they show is a diversion program in decline, as prosecutions ramp up:

The Harris County District Attorney has not published data on this subject since October 2024. But by then, the number of diversion program completions was down significantly and continuing to dwindle from its peak in 2018.  It’s hard to refute the claim that this program is “very robust” if the DA won’t publish current data, but I’m not buying it.

The DA’s office also removed the report projecting the economic impact of the diversion program. In that 2017 document, they estimated that it cost about $2,666 to prosecute a misdemeanor marijuana case between police time, lab testing, roughly eight days in jail, prosecution, court-appointed defense, and court costs. But today, most misdemeanor defendants are out on bond in a day or two. So if we drop the jail costs, keep the booking fee, and adjust for inflation, that works out to $2,950 per case in 2026 dollars.

Resuming prosecution has real costs associated with it:

• In 2025, prosecuting 1,120 cases cost approximately $3.3 million.
• But 86% of those cases were dismissed, and only 112 resulted in convictions. That works out to roughly $29,500 per conviction.

Because testing has gotten more complicated and more expensive, this is likely an underestimate of the total costs of resuming prosecution.

Support the initiative for the arrest data

As I see it, the state law Paxton used bars cities from adopting a policy of not fully enforcing drug laws. But it doesn’t touch reporting and auditing.

Arrest statistics are essential. Even though most arrests end up working their way through the court system, it’s an important part of transparency to see activity at this level. Maybe they shouldn’t even happen at all: four out of five Texans believe marijuana should be legal in some form.

The arrest data should be detailed enough to replicate important analyses. That means it needs to include race, ethnicity, age, gender, and location of the arrest, as well as other associated charges. 

But there are dozens of law enforcement agencies that can arrest you in Harris County. This ordinance applies to the Houston Police Department. HPD makes up about a third of misdemeanor marijuana cases that get prosecuted. In order to have consistent practices on any given plot of land, we need agreement between all agencies. 

We also need more data. If the diversion program is actually still active and doing its job, then it will keep arrest numbers low. And if the diversion program is no longer active, misdemeanor marijuana can still be classified as cite-and-release. Ultimately, we should be able to construct a funnel using statistics from the diversion program, cite and release program, arrests, and prosecutions to construct a full story of how the criminal justice system handles marijuana offenses. The number of cases that make it to prosecution should be close to zero.

What else can you do about it?

If you’re eligible, you can vote. Support the ordinance and send a message to the state that law enforcement in Houston is more than implementing regressive policies that have little popular support. Prove it at the ballot box.

But wait, there’s more. Because HPD only accounts for a third of these cases, you can write your Harris County Commissioners, Harris County Constables, and the Harris County Sheriff’s Office to let them know you’d like to see them follow suit: publish your arrest data. 

Write to the District Attorney’s office and request up to date statistics on the misdemeanor marijuana diversion program. Ask them to conduct a new program evaluation, and to make previous evaluations available to the public again.

You can sock ’em right in the budget with a business case. Tell the DA to put the costs of marijuana testing back on the law enforcement agencies, like his predecessor did with fentanyl for a few months and those cases dropped by 75%. Tell him it’s a waste of money, and that if you vote in a municipal election, you’ll certainly vote the next time he’s up for reelection.

Finally, there are two candidates looking to replace Ken Paxton as Texas Attorney General: Mayes Middleton and Nathan Johnson. Write to them and tell them that this matters to you. Make Houston’s self-determination an issue that is central to their campaigns. Who knows, maybe this is something they can agree on.