Criminal Justice

A new Texas law could get prosecutors fired for not pursuing charges. Here’s how it works.

Conservative and progressive district attorneys say it’s impossible to prosecute every single case. The law could require that.

Demonstrators were arrested at a protest in downtown Austin in 2020.
Gabriel C. Pérez

A new state law could lead to the firing of elected prosecutors who refuse to take on certain crimes like low-level pot offenses.

Supporters of the law say these "rogue" prosecutors should be thrown out of office. Opponents say the law makes it difficult to effectively do the jobs prosecutors were elected to do.

There are plenty of questions about the new law, known as House Bill 17, so let’s dig into what the law does and what it could mean for Texas voters.

First off, what does a prosecutor do, and how does this law fit into that?

These prosecutors come in two shapes: a district attorney and a county attorney. Typically, a district attorney prosecutes felonies, while a county attorney takes on misdemeanors.

So, say you're arrested and taken into custody. The prosecutor decides whether to pursue the charges against you, to dismiss them or to reach a deal with you, the defendant.

The prosecutor controls whether the government seeks punishment via time in jail or prison, a fine or anything in between.

Sometimes the prosecutor doesn't pursue charges at all. Sometimes the office may have informal policies against, say, prosecuting low-level or nonviolent crimes, which is the case in a lot of counties and jurisdictions in Texas. In legalese, that’s called prosecutorial discretion.

This law would subvert that long-held legal tradition, requiring prosecutors to enforce laws to their fullest extent. If they don’t, a resident in that county can file a petition to remove them from office.

Now that we've gotten that out of the way, what's the deal with this law?

Gov. Greg Abbott's take on HB 17: Prosecutors aren’t pursuing certain cases, which is a dereliction of duty, or they’re making informal, internal policies on how to pursue cases.

“The role of a district attorney is to enforce the law, not make it,” Abbott said. “If they want to make state policy, they should run for the state Legislature, not district attorney. ... The goal here is to hold district attorneys accountable and prevent the refusal to prosecute offenses.”

The mechanism of the new law is pretty simple: Again, anyone in a county can file a petition to get a prosecutor removed if they think that person is not enforcing laws.

So, how did this come about?

A good starting point is 2020, when the Texas Department of Public Safety said it would no longer test marijuana for its THC content in low-level drug cases. The agency cited the state’s evolving pot laws and the burden of testing every single piece of evidence.

That didn’t happen in a vacuum. Shortly after, local prosecutors stopped prosecuting those cases. Cities, like Austin, went as far as to ban prosecutions through a voter referendum.

Enter: Travis County District Attorney José Garza and, to an extent, County Attorney Delia Garza. Both ran on progressive platforms and have said they won't prosecute every single pot offense.

They've also come out against the state's restrictions on abortions. Remember, state law allows anyone to file a complaint against someone who has helped someone get an abortion.

José Garza is one of nearly 100 prosecutors who said they wouldn't enforce that law. Delia Garza has spoken out against it, as well.

They could be targets under HB 17. Save Austin Now, a Republican-backed PAC, went as far as to set up a website to report either of them.

So a ‘rogue prosecutor’ essentially just means progressive district attorneys in liberal cities?

No.

Sure, progressive prosecutors would argue this is targeting them, but they’re not the only ones catching flak.

A handful of conservative Republicans came out against the law or expressed reservations as lawmakers were drafting it, including prosecutors in Smith, Williamson, Comal and Oldham counties.

Shortly before the bill passed in May, Williamson County DA Shawn Dick told lawmakers it is impossible to prosecute every single case.

“We only have so much time and resources and, this isn't to be rude — I know it might sound this way — but imagine if you had to read every letter of every bill you've voted on, and if you didn't, you could be removed from office,” he said. “You just wouldn't have the time or resources to do that.”

Delia Garza, the Travis County attorney, said the law paints a target on the backs of every elected prosecutor, including herself. She pointed to the website dedicated to reporting her and DA Garza under the law.

“Frankly … I think it's a matter of time,” she said.

Garza said she's already seen hints that Austin's police union is going to file a petition against her. The union even quoted the law in a statement criticizing her office.

Like Dick, Garza argues prosecutors only have so much time and so many resources. There has to be some vetting, she said, some cases have to be dropped. She said her office had 14,000 cases making their way through courts right now, while another 14,000 don’t even have court dates yet.

"The court system is not set up for a large backload of cases — same as our office,” she said. “So you have to be able to use this type of discretion to work through these cases.”

KUT reached out to Travis County DA Garza, but he didn’t respond to a request for comment. KUT also reached out to Dick, Comal County DA Jennifer Tharp and Oldham County Attorney Kent Birdsong — all conservative prosecutors who expressed reservations about the bill. They did not respond, either.

Has anyone tried to get a prosecutor removed under this law?

Yes.

Hays County District Attorney Kelly Higgins faced one of these complaints, and, boy, there’s an interesting story there.

The petition was filed by Hays County District Clerk Avrey Anderson, who argued Higgins wasn't doing his job. Higgins wouldn't speak with KUT on the record, but he sent a statement about the dust-up. Higgins said Anderson didn't like him personally, that Anderson thought he was a "jackass" and that the complaint wasn't for legal reasons under the state law.

"He filed a petition to remove me not because the law would require it, but because I'm a big meanie,” Higgins said.

Anderson ultimately dropped his petition and, now, Higgins has returned the favor, filing a similar complaint, though not under HB 17.

What’s next?

Well, we’ll see. The law is still pretty fresh, but it’s likely some prosecutors will see some of these complaints come their way in court.

Progressives and conservatives have both argued the law politicizes what voters trust and elect prosecutors to do.

Geoff Burkhart has years of experience working in legal defense. He used to work for the Texas Indigent Defense Commission, a state agency that helps counties provide legal defense for low-income people accused of crimes. Now, he heads up the Texas Fair Defense Project.

He's worked with deeply progressive DAs and staunchly conservative ones. From his point of view, these elected district and county attorneys should be given a bit of grace as far as deciding what to prosecute. Ultimately, the removal of prosecutors should be up to voters.

“A rogue prosecutor is somebody who is not living up to the values and promises that they espoused when they were running for office,” he said. “I think, truly, a rogue prosecutor is somebody who's not delivering for their local constituents. That's a rogue prosecutor."

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