Hays County to implement "cite and divert" program in September

HAYS COUNTY, Texas - Hays County will soon be implementing a "cite and divert" program to give law enforcement officers an additional option when dealing with criminal cases.

Hays County Sheriff Gary Cutler and County District Attorney Wes Mau recently met with the heads of the San Marcos, Kyle, Buda, and Texas State University police departments about the program, which has an anticipated launch date of Sept. 1. According to a release from the county, the Cite and Divert program gives people who qualify a chance to avoid having the offense ever filed in court and becoming part of their criminal record. 

“People, from time to time, will make a mistake. If we can divert them through a program, and they don't make any more mistakes, it's gonna help them in the long run. So, I like that, definitely like that part of it,” said Cutler. 

As part of the program, eligible persons meet with a prosecutor from the DA's office, who may determine that a course of diversion is most appropriate. Once they satisfy the requirements determined by the prosecutor, the program concludes and their record remains clear of that offense. The county says plans have also been made to provide defense counsel at this stage in the process.

The county says this differs from the more commonly known Cite and Release program, where a person is issued a citation to appear at the jail on a later date instead of being arrested at the time of the offense. The person then goes through the booking process, including fingerprinting and photographing. 

RELATED: San Marcos passes cite-and-release ordinance for some low-level crimes

"The only benefit to cite and release is that the arrest is deferred to a later date," says the release. "The criminal case will still proceed as normal, meaning that the person will still have to get a lawyer, attend court dates and pay court costs and other fines. Furthermore, even if they get their case dismissed, they must go through the expunction process to possibly have the offense removed from their record."

The county says the major benefit to the Cite and Divert program is that it provides an opportunity to stay out of the criminal justice system and keep the criminal record clean. Diversion can include educational courses, community service, or paying restitution, all less expensive and less time consuming than going through the more formalized judicial process.

“They're not charged, they have no record, no fingerprints, no photograph on file,” Cutler said. 

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According to the county, low-level misdemeanors will be eligible for diversion, including marijuana possession, misdemeanor theft, driving with an invalid license, criminal mischief, and possibly others.

Criminal justice reform advocacy group Mano Amiga said keeping low-level crimes from appearing in someone’s criminal history will prevent those mistakes from negatively affecting students and job applicants. 

“Your financial aid, or your scholarships, can be affected negatively... Even if it’s not a felony, even if it’s something petty, any kind of charge can be negative towards that,” said Samantha Benavides, a staff member with Mano Amiga. 

However, if an officer believes an arrest would be more appropriate they still have discretion to do that. 

Mano Amiga said they will keep an eye on racial disparities with the new program because they found San Marcos officers were less likely to use cite and release when dealing with the black population until the city required it by law. 

RELATED: Report shows San Marcos police didn't cite-and-release any black people in 2018

“Since we already saw that disparity in 2018, it does concern me that it could be a possibility with cite and divert. So I’m hoping for the best for that and we’re hoping to have that transparency in the numbers,” Benavides said. 

“I've got full confidence in all the men and women in the sheriff's office to have to make the right decision under the circumstances,” said Cutler.