Petition Effort Poses Test for New Law, Progressive District Attorneys

By Michael Nolan

Reporting Texas

One of the first uses of a new Texas law aimed at removing “rogue” district attorneys could curtail the discretion of prosecutors in major cities, political and legal analysts say.

Travis County District Attorney José Garza, a Democrat who recently won a primary in his re-election bid as the county’s top prosecutor, will soon find himself in a courtroom for a different reason — defending himself against a petition seeking his removal from office. The date for Garza’s hearing, postponed from May 16, has not been set.

The petition against Garza is one of the first uses of House Bill 17, approved last year by the Texas Legislature and enacted Sept. 1. It allows citizens to seek to remove a county or district attorney.

Travis County resident Mary Dupuis told KXAN that she filed the petition because Garza declined to prosecute the person who sexually assaulted her.

Garza is one of the most prominent progressive Texan district attorneys and has drawn criticism from state Republican leaders for declining for pressing cases against police officers and for his office’s approach to low-level drug offenses. Gov. Greg Abbott recently pardoned a man that Garza’s office successfully prosecuted for murder in the shooting death of racial justice protester.

Some experts believe the new law setting up a removal process for prosecutors is part of the Republican-controlled Legislature’s attempt to weaken Democrats’ power in the state’s largest cities, which, unlike the rest of the state, tend to vote Democratic.

“The Legislature over the past number of years has expressed a hostility towards the preferences of local voters, when those local voters’ preferences tend to be liberal, progressive or Democratic,” said Joshua Blank, the research director of the Texas Politics Project.

Mark Jones, a political science professor at Rice University, said “it opens up a pretty wide doorway to pushing back against progressive district attorneys, of whom Garza’s probably the poster child here in Texas.”

Garza, who assumed office in 2021, advocated for reforms to drug prosecution in his campaign — seen by Republican leaders as an act of defiance against the state’s drug laws.

“For prosecutors to knowingly and willingly refuse to enforce state laws — and even further, publicly announce their refusal to follow and enforce state laws‚— is a violation of their oath and greatly jeopardizes the entire justice system and weakens the rule of law,”  the Texas House Committee on Criminal Justice Reform in a 2023 report.

If successful, the petition against Garza could cause a chilling effect.

“I also suspect the law will have its intended consequence in another way, which is not necessarily the removal of these district attorneys, but the reigning in of their discretion around laws they disagree with,” Blank said.

The Garza petition comes as Democratic voters in Harris County, the state’s largest, have chosen to oust Kim Ogg as district attorney after she reversed course on bail reform and other policies favored by Democrats. She lost in a primary to Sean Teare, a former prosecutor in her office who now faces a Republican challenger in November.

“The outcome of (Garza) case will send a message to the incoming district attorney of Harris County,” Jones said.

District attorneys are elected based on their policies, Blank noted, and the new law puts them at risk of being punished for enacting policies supported by voters. “It’s certainly an erosion of the principle of representation,” Blank said.

Another danger, Blank said, is that House Bill 17 could cause DA’s offices to function less efficiently if elected district attorneys lose their ability to exercise judgment in which cases to pursue.

“There is a general concern about the law’s applicability to the role of a DA, given the fact that most DA offices are expected to exercise a fair amount of discretion over the cases they do or do not prosecute,” Blank said. “Failure to prosecute a case could result in a legal petition against a DA or one of his or her subordinates by any citizen who doesn’t like the DA decision.”

Democratic lawmakers have criticized the petition against Garza, citing concerns of Republican interference.

“The petition was reviewed by a district judge in one of the most Republican counties in the state of Texas, who agreed to appoint another Republican to try to prevent the will of Travis County voters from being realized,” U.S. Rep. Lloyd Doggett, D-Austin, said in April.

“I think there is a real risk that disgruntled individual citizens take it in their own hand and use this as a way to strike back against the district attorney they disagree with, but who may, by most people’s definition, have done nothing wrong,” said Jones.