Texas Republicans, once allied with prosecutors, seek to rein them in

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When the Legislature convened in January, Republicans trotted out their usual priorities — border security, school vouchers, property taxes and anti-LGBTQ animus. But they also honed in on a new target: prosecutors.

District and county attorneys have typically garnered a lot of support from law- and- order conservatives. But a new fissure has emerged between Republican lawmakers who create the laws and left-leaning prosecutors tasked with enforcing them, especially around abortion, voter fraud and drug and property crime.

By declining to take these cases, prosecutors say they are merely exercising their prosecutorial discretion; lawmakers argue they are engaging in “prosecutorial legislation,” cherry-picking which laws do and do not apply in their jurisdictions.

Legislators have filed more than 30 bills aimed at reining in the power and purview of locally elected prosecutors. Some lawmakers are content with removing or disciplining “rogue DAs” who decline to pursue abortion or election cases. Others want to ensure those cases end up in the hands of a lawyer who will take them on — like a neighboring district attorney, or even the Texas attorney general.

Prosecutorial discretion and discipline

Elected district and county attorneys have wide prosecutorial discretion to decide which cases their office should pursue. Usually, that happens on a case-by-case basis, but occasionally, prosecutors adopt policies dictating their approach.

In 2019, Dallas District Attorney John Creuzot announced a policy of not prosecuting first-time marijuana offenses and thefts of personal items under $750 stolen out of necessity. Creuzot later clarified the theft policy and said it was expected to only affect a small portion of cases considered by his office.

After the overturn of Roe v. Wade last June, five Texas prosecutors, including Creuzot, signed on to a national letter saying they wouldn’t use departmental resources to pursue abortion-related charges.

Travis County District Attorney José Garza told The Texas Tribune in April that he was making a strategic decision about priorities.

“We are very focused on holding accountable people who commit acts of violence in our community,” he said. “Pulling resources away from that to focus on this kind of case would be reckless and endanger the safety of our community.”

In a recent statement, Garza’s office said, “Regardless of which debates our Legislature takes up, the Travis County district attorney’s office will remain focused on prosecuting violent crimes and on working to improve the safety of our community.”

This discretion is a cornerstone of prosecutorial independence, said Sandra Guerra Thompson, a professor of criminal law at the University of Houston Law Center.

“It’s built into the system, and it’s expected that they will exercise that discretion wisely,” she said. “And if not, the electorate will vote for someone else.”

State lawmakers trying to override that discretion is “another attempt to exert statewide control over a traditionally local function,” Guerra Thompson said. “We’re seeing a lot of that these days.”

As county-level elected officials, prosecutors cannot be impeached by the Legislature or executive action, nor can they face a recall election. To remove a prosecutor from office, a resident of the county must file a petition alleging “incompetency, official misconduct or intoxication.” If a jury finds them guilty, a district judge can order them removed from office.

It’s a rarely used tactic, but last year, the El Paso County district attorney resigned ahead of a removal trial. The rookie prosecutor was accused of endangering public safety by bungling even her most basic responsibilities, and her office has been implicated in possible criminal allegations over the handling of the 2019 Walmart 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.

If a prosecutor is removed, Gov. Greg Abbott appoints a successor until the next election.

The priority prosecutor bills — House Bill 17 and Senate Bill 20 — both operate within this existing disciplinary structure. They propose expanding the definition of “official misconduct,” allowing any resident to file a removal petition if a prosecutor adopts a policy that “prohibits or materially limits the enforcement of any criminal offense.”

House Bill 3307, filed by state Rep. David Cook, R-Mansfield, would allow removal petitions to be brought by district and county attorneys in neighboring counties. The removal trial could proceed in the neighboring county as well, per the legislation.

Several bills would allow the attorney general to bring a removal petition, as well as sue prosecutors who have a written or unofficial policy of not enforcing certain crimes. Under House Bill 1350 and its companion, Senate Bill 378, the attorney general could bring a civil suit seeking fines of $25,000 for each day a prosecutor doesn’t enforce the law.

Legislators have also proposed constitutional amendments to allow prosecutors to be impeached by executive action or removed through recall elections; amendments require a two-thirds majority vote in both chambers before they go to voters for approval.

Two bills — House Bill 1732 and Senate Bill 404 — would reestablish the Prosecuting Attorneys Coordinating Council to review complaints and discipline prosecutors. The original PACC was created in 1977 and sunsetted in 1985, according to the Texas District and County Attorneys Association.

The new PACC would be made up of a county attorney and a district attorney, a police chief or sheriff, a criminal judge, two non-lawyers and a presiding officer appointed by the governor. The Legislature rejected proposals to restore the PACC in 1991 and 1993, the TDCAA found.

“Oddly enough, those bills were proposed 30 years ago as responses to alleged overzealous prosecutions—specifically, the then-Travis County DA indicting the sitting House Speaker,” TDCAA wrote in a blog post detailing the group’s history. “But in 2023, this idea is being resurrected for the opposite reason: non-prosecution, rather than over-prosecution.”

Who would take over prosecution?

Several bills would allow neighboring district attorneys to pursue election-related cases if the local prosecutor declines to do so, through several different mechanisms. One bill proposes allowing the attorney general to appoint them, while others would give a district attorney from any neighboring county concurrent jurisdiction on voter fraud cases.

Another proposal would create a new position of a statewide special prosecutor. Per House Bill 4026, filed by Rep. Mike Schofield, R-Katy, and Senate Bill 1096, filed by Sen. Bryan Hughes, R-Mineola, this special prosecutor would have statewide jurisdiction to pursue election, abortion, human trafficking, drug or corruption charges.

The special prosecutor would be appointed by the Supreme Court of Texas. In Schofield’s bill, the attorney general’s office would be permitted to “assist the special prosecutor in fulfilling the duties” of their office.

The idea has rankled even some conservative district attorneys, said Tom Glass, founder of the conservative activist group, Texas Constitutional Enforcement.

“Some of them have said … ‘It kind of grates on me to have anybody looking over my shoulder,’” Glass told a Senate committee Thursday. “I said, ‘Look, the jurisprudence of Texas is too important to accommodate that particular reservation.’ We've got a rule-of-law problem on our hands, and we've got to address it with this legislation.”

Legislators are also looking for ways to empower the attorney general to prosecute certain offenses, including voter fraud and abortion. But to do so, they’ll have to find a way around a recent court ruling that affirmed the Texas attorney general has virtually no independent prosecutorial authority.

In Stephens v. Texas, the state Court of Criminal Appeals ruled the attorney general can only intervene when explicitly asked to by the local prosecutor.

“The 1876 Texas Constitution completely eliminated the specific constitutional authority of the Attorney General to represent the State in appeals of criminal cases in a deliberate response to the ‘despotic control of the reconstruction governor,’” the ruling reads. “Since then, it has had no authority to represent the State in a criminal case in any court, except when a county or district attorney requests it to assist.”

In amicus briefs for the Stephens case, a group of Republican senators argued that preventing the attorney general from prosecuting election fraud would result in a “substantial reduction of the constitutional power of the Legislature.”

“Without the Attorney General’s ability to step in when a district attorney does not move forward on the investigation or prosecution of an election crime, there will be no deterrent against election fraud in that district,” the senators wrote in the brief.

The Court of Criminal Appeals declined to rehear the case.

“When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion,” wrote Judge Scott Walker in a concurring opinion. “It is their prerogative to file or not file charges.”

Republican legislators filed several bills that could circumvent that ruling by giving the Texas Supreme Court authority to overturn decisions from the Court of Criminal Appeals.

Texas is one of only two states that has two equally powerful high courts. These bills would put the Texas Supreme Court, which handles civil cases, over the Court of Criminal Appeals, which handles criminal cases, on constitutional questions like the one considered in Stephens.

In a hearing Thursday, Grant Dorfman, Texas’ deputy first assistant attorney general, argued that the Legislature wouldn’t need a constitutional amendment to retool the judiciary. TDCAA has disagreed, writing in its legislative update that this reading of the law follows the same logic that got thrown out in the Stephens case.

“That didn’t pass the plain reading test, the grammar test, or the historical analysis test in the Stephens opinion(s), and it almost certain[ly] won’t pass muster this time around either,” the group wrote. “But don’t be surprised if advocates of expansive centralized prosecutorial authority go to that well once again.”

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