Texas may soon have a process to remove local prosecutors who won’t pursue abortion, election cases

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The Texas Senate passed a bill Friday that would allow locally elected prosecutors who choose not to enforce certain laws to be removed for misconduct.

The bill is part of a larger effort by Republicans to rein in “rogue” district attorneys in Texas’ large, left-leaning counties who have said they do not intend to prosecute abortion cases and, in some cases, have adopted policies about prosecuting low-level theft and drug offenses.

“There must be a mechanism in place in Texas to remove prosecutors who simply refuse to enforce Texas laws which have been made by this Legislature or any legislature,” bill sponsor state Sen. Joan Huffman, R-Houston, said on the floor Friday.

The version of House Bill 17 that passed the House last month included caveats to explicitly protect prosecutors from removal for things like diversion programs, in which people accused of low-level crimes like drug possession can take classes instead of going to jail. The Senate removed most of those exceptions in the version of the bill that passed on second reading Friday, matching it to a similar measure senators had previously approved.

The bill passed on a 20-11 vote. The two chambers will likely need to hash out their differences in a conference committee before the looming legislative deadlines.

Elected prosecutors have wide discretion to decide which cases to take on. With nearly all abortions banned in Texas, some prosecutors have said they do not intend to use their offices’ resources to pursue abortion-related cases. Republican leaders have also said they don’t trust prosecutors in big cities to aggressively pursue allegations of voter fraud.

These locally elected prosecutors cannot be impeached by the Legislature or face recall elections. They can be removed only after the filing of a 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.

It’s a rarely used process, but i​f a prosecutor is removed, the governor appoints their successor until the next election.

Last year, the El Paso County district attorney resigned ahead of a removal trial after being accused of endangering public safety by bungling even her most basic responsibilities. Shortly afterward, a conservative activist sought to remove the Nueces County district attorney, a Democrat, using the same method. The case is pending.

If HB 17 becomes law, however, a prosecutor’s adoption of a policy of non-enforcement of a specific law would qualify as “official misconduct.”

The House version of the bill requires that the petition be filed by anyone who has lived in the county for at least six months and would be handled by a judge from a nearby county. The Senate version strips out that language.

Aside from the particularly heated topics of prosecuting abortion-related or election crimes, HB 17 also targets district and county attorneys who broadly opt out of charging people for low-level theft, as was the case in Dallas until late last year. The bill also aims at the multiple prosecutors with policies to not pursue cases of low-level marijuana possession.

In stripping out House caveats, the bill as initially passed by the Senate no longer included language that specifically would have allowed prosecutors to enact policies to not pursue drug cases until getting lab results.

After the legalization of hemp in Texas, police and prosecutors often can’t tell the difference between legal hemp and illegal marijuana. Several Republican and Democratic prosecutors now wait to file charges until lab results confirm if the substance is illegal.

“What if your crime lab implodes, which we’ve had experience with the crime lab imploding, and a district attorney refuses to prosecute certain drug offenses until they get credible lab results back from the DPS [Department of Public Safety] lab?” asked state Sen. Sarah Eckhardt, an Austin Democrat, on Friday.

Huffman countered that prosecutors would still have the ability to make decisions based on the evidence in front of them.

“I think you know what I’m trying to do on this bill, it’s very clear,” Huffman said. “We could piecemeal and we could come up with lots of situations, but all I’m trying to do is prevent prosecutors from making broad policies that make themselves the legislator instead of this duly elected body that represents every citizen of Texas.”

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