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Locally elected prosecutors who do not enforce certain laws could be removed from office under a bill approved by the Texas House of Representatives on Friday. The bill passed 97-51, and will now move to the Senate.
Republican-led House Bill 17 is a response to elected district and county attorneys in Texas’ large, left-leaning counties who have said they will not enforce the state’s abortion laws and seem disinterested in pursuing election fraud cases.
“The purpose of this bill is to eliminate politics from prosecution,” bill author state Rep. David Cook, R-Mansfield, said while on the House floor Thursday. “This also sets up sufficient guardrails for prosecutors … that want to legislate instead of prosecute. I would urge that they run for a seat in this house as opposed to running for DA.”
Elected prosecutors cannot be impeached by the Legislature or face recall elections. They can be removed only after the filing of a removal petition that accuses the district attorney of “incompetency, official misconduct or intoxication.” If they are found guilty by a jury, a district judge can order them removed from office.
If HB 17 passes both chambers, it would tweak the definition of “official misconduct” to include adopting or enforcing a “policy of categorically refusing to prosecute specific criminal offenses under state law,” with certain exceptions.
The removal petition could then be filed by anyone who has lived in the county for at least six months, and it would be handled by a judge from a nearby county rather than the county where it was filed.
Elected prosecutors have wide discretion to decide which cases to pursue and which to decline. In the wake of the overturn of Roe v. Wade, with nearly all abortions banned in Texas, some prosecutors have said they do not intend to pursue abortion-related charges.
“We are very focused on holding accountable people who commit acts of violence in our community,” Travis County District Attorney José Garza told the Texas Tribune last year. “Pulling resources away from that to focus on this kind of case would be reckless and endanger the safety of our community.”
Prosecutors in Texas’ largest counties have shown little interest in pursuing allegations of election fraud and in some cases have said they won’t bring cases against first-time drug offenders or low-level thefts.
Republicans are pursuing a number of different legislative angles to rein in these “rogue DAs.” HB 17 and a similar bill, Senate Bill 20, are the most likely to succeed this session.
SB 20 passed 20-11, with Sen. Juan “Chuy” Hinojosa, D-McAllen, joining Republicans to support the bill. SB 20 has been referred to the House Committee on Criminal Jurisprudence but has not yet had a hearing.
On the House floor Thursday, Rep. Terry Canales, D-Edinburg, raised concerns that prosecutors in border counties could be disciplined under this proposal if they cannot keep up with the surging number of migrant arrests at the border.
“If a prosecutor can’t afford and doesn’t have the bandwidth and doesn’t have the prosecutorial wherewithal because of limited resources, that’s not a policy,” Canales said. “That’s reality.”
Canales’ amendment, which would have explicitly exempted prosecutors who declined to take cases due to staffing or financial limitations, failed, 62-84. But the chamber did adopt another amendment from Canales that would require the person who filed the petition to pay the prosecutor’s legal fees if they are vindicated in court.
If a prosecutor is removed, Gov. Greg Abbott appoints a successor until the next election. It happens rarely, but last year, the El Paso County district attorney resigned ahead of a removal trial. Yvonne Rosales was accused of endangering public safety by bungling even her most basic responsibilities, and her office has been implicated in possible criminal allegations over its handling of the 2019 Walmart mass shooting case.
Shortly afterward, a conservative activist sought to remove the Nueces County district attorney, a Democrat, using the same method. A judge has yet to rule on whether he will face a jury trial for removal.
At a hearing on the bill earlier this month, the voices opposing the proposal far outweighed the voices in support, said Rep. Ana-Maria Ramos, D-Richardson.
“It is very clear what Texans are saying: They want to choose who their district attorney is,” Ramos said on the floor Thursday. “What they don't want is a grandstanding legislator to say ‘no, we are not going to allow you to have this … voice.’”
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