Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

The Texas Senate, with the bare minimum number of votes, approved the nomination of a formerly indicted Austin police officer to a law enforcement watchdog agency on Wednesday, despite a Democratic effort to block his confirmation over misconduct allegations.

Justin Berry, a senior Austin Police Department officer who had been indicted on charges of aggravated assault during the racial justice protests in 2020, was confirmed Wednesday, 21-10, to serve a second term on the Texas Commission on Law Enforcement, which sets standards for police training and conduct.

Senate Democrats, whose ranks had the potential to tank Berry’s nomination if they stayed united, had urged their colleagues to reject Berry on the floor Wednesday.

But state Sen. Juan “Chuy” Hinojosa — a Democrat from McAllen in South Texas, a region that has recently surged toward the right — broke with his party to provide the critical vote needed to confirm Berry to a second term. Hinojosa is one of the more conservative Democrats in the Senate.

In an interview, Hinojosa said that he “didn’t take the vote lightly,” and had reviewed the allegations against Berry and met with him one-on-one on Tuesday before deciding to approve his confirmation.

Hinojosa found insufficient evidence backing the accusations of misconduct, he said, and had spoken to other members of the law-enforcement commission who described Berry’s work on the board so far as “competent and professional.” Hinojosa alerted the Senate Democratic Caucus chair, Sen. Carol Alvarado of Houston, of his decision Wednesday morning.

“I didn’t feel there was any criminal behavior that would rise to the level of rejecting his nomination,” Hinojosa said, adding that he thought rejecting Berry would make him a “scapegoat” for failures at higher levels of police command. “It’s not an easy one, but at the same time, I’m not here to second guess the governor.”

Berry’s confirmation marked another failed attempt by Democrats to exercise power in a state government long dominated by Republicans. Gov. Greg Abbott nominated Berry in January 2024 for a second term, and Lt. Gov. Dan Patrick, who tightly controls the Senate, was determined to win a confirmation vote.

In opposing Berry’s confirmation, Democrats cited past allegations against Berry that said he used excessive force and misused his police power. The Texas Commission on Law Enforcement, according to Abbott’s announcement of Berry’s nomination, “establishes and enforces standards to ensure that the people of Texas are served by highly trained and ethical law enforcement, corrections, and telecommunications personnel.”

Abbott’s announcement of Berry’s nomination cited his over 16 years of experience in law enforcement and the “numerous awards, medals and commendations” he had received, including the Austin Police Department Honorable Conduct Medal and the Austin Police Department Meritorious Service Medal.

Before the confirmation vote, Sen. Sarah Eckhardt, D-Austin, said: “The governor’s selection of an officer with his history is evidence of a growing intolerance of dissent at the highest levels of our government. … There are more than 8,000 peace officers in the state of Texas. Why did the governor pick one with this very public record?”

Berry, who twice ran for the Legislature as a Republican, was indicted on charges of aggravated assault in February 2022 related to an incident in which a Black Lives Matter protester was shot in the face with “less-lethal” munitions. Austin District Attorney Jose Garza dropped the charges against Berry and most of the other 18 officers who were indicted on use of excessive force a year later.

Eckhardt, who led the effort to block Berry’s confirmation, said her teenage daughter was at the protest and witnessed the shooting.

“This incident alone should cause some question regarding his fitness to set the standards of conduct and training for peace officers in Texas,” she said during a committee hearing Monday, adding that other allegations against Berry of employing excessive force or misusing his police power over the past two decades caused her “additional concern.”

The political fight over Berry’s confirmation began when he did not appear for questioning before the Senate Nominations Committee at its March 10 hearing — when his nomination was listed on the agenda — as Democrats had requested.

All 11 Senate Democrats then signed onto a March 19 letter to state Sen. Donna Campbell, R-New Braunfels and the committee chair, requesting that Berry appear for questioning.

“We are unaware of any prior instance in which a sitting committee member’s request for a nominee to appear has been denied,” the lawmakers said, adding that Berry’s nomination is “not uncontroversial,” and citing three individuals who were seriously injured by munitions during the 2020 protests and $18 million in civil settlements paid by the city of Austin to protesters as a result of police conduct.

“Although most of the indictments have been dismissed (four indictments remain active), questions regarding Mr. Berry’s actions that day go to the heart of his fitness to serve on the commission,” they said.

Berry later met privately with the committee’s three Democrats — Eckhardt, Alvarado and Borris L. Miles of Houston — but did not appear before the larger committee, whose Republican members on Monday unanimously sent his nomination to the full Senate.

On Monday, Eckhardt said that Patrick denied Democrats’ request last week that Berry appear before the committee.

“Senators offer their advice and consent through their deliberations and vote,” Patrick said in a Wednesday statement before the vote. “I will not allow any nominee to be subjected to an unfair process outside of that scope.”

Eckhardt had “made it clear she wanted to turn a committee room into a courtroom,” he added. “That is clearly outside the scope of offering advice and consent.”

The tension over Berry’s nomination came to a head in committee on Monday, as Eckhardt began explaining her concerns with his record and describing a packet of documents she had compiled and shared with lawmakers on the allegations against him.

Campbell quickly interjected. “Senator Eckhardt, you can make these very brief. You will have time to express your concerns on the mic, on the floor,” she said.

Eckhardt continued, and less than a minute into her remarks, Campbell cut her off again and tried to move the hearing forward. The two spoke over each other before Eckhardt, appearing exasperated, concluded.

Berry’s second term is set to conclude in August 2027.

Tickets are on sale now for the 15th annual Texas Tribune Festival, Texas’ breakout ideas and politics event happening Nov. 13–15 in downtown Austin. Get tickets before May 1 and save big! TribFest 2025 is presented by JPMorganChase.