Will D.A. Garza Be Removed From Office Over Handling of Drug Cases, Nonexistent Abortion Crimes?

District Attorney José Garza (Photo by John Anderson)

A petition to remove Travis County District Attorney José Garza moved one step closer to trial last week, becoming the first of its kind to reach this stage in Texas – though the effort is still almost certain to fail.

District Judge Dib Waldrip accepted the petition to remove Garza on April 19. Waldrip, a Republican whom Gov. Greg Abbott appointed as presiding judge over the judicial region that includes Travis County, also set a May 16 court date for the case and assigned Bell County Attorney Jim Nichols (also a Republican) to prosecute the case.

If the case goes to trial, a Travis County jury would be asked to decide if Garza should be ejected from office – currently, a remote possibility. “Republican extremists should not be able to veto the decision of Travis County voters,” U.S. Rep. Lloyd Doggett, D-Austin, said of the petition at a press conference April 22, referencing Garza’s commanding victory in the March 5 Democratic primary over a well-funded opponent who was supported by Republicans.

“Undermining the will of voters is one direct effect of House Bill 17,” University of Texas law professor Jennifer Laurin said of the legislation, which is also known as the “rogue prosecutor” law. Championed by Republican leaders during the 88th legislative session, HB 17 amends an existing portion of Texas law to add new criteria by which elected prosecutors can be removed from office through civil trial – including “adoption or enforcement of a policy of refusing to prosecute a class or type of criminal offense.”

Democrats, criminal justice activists, and reproductive rights advocates believe the law was designed to attack progressive prosecutors in Democratic counties for embracing policies that de-emphasize prosecution of drug offenses and, following the U.S. Supreme Court overturning Roe v. Wade, the non-enforcement of laws criminalizing abortion.

A prosecutor’s ability to decide which cases are worth taking on, and the people’s ability to elect prosecutors based on how they intend to use that discretion, are both key features of the American criminal justice system. Both are under threat by HB 17, Laurin told us.

Since the advent of the progressive prosecutor movement, of which Garza is on the forefront, district attorney elections “have, for the first time ever, been about actual prosecutorial priorities,” Laurin said. “But HB 17 makes it impossible for D.A.s to talk about what they’re doing. We ought to know what they’re doing, and the democratic process is in place to allow voters to assess how they’re doing.”

For example, the complaint against Garza (filed by Mary Elizabeth Dupuis), points to statements Garza made after Roe was overturned indicating his office would not prosecute pregnant people or medical providers for seeking or providing an abortion. District attorneys across the state will now be disincentivized from communicating this kind of priority to the communities they represent, because doing so could be used as evidence to eject them from office. This petition is unlikely to eject Garza, though.

The petition – authored by Martin Harry, the Republican D.A. nominee Garza defeated in 2020 – was also submitted against Garza by a different plaintiff in December, but that case was dismissed because the plaintiff had a pending felony case in Travis County.

The petition to remove Garza was filed by Mary Dupuis, but written by Martin Harry, the Republican D.A. nominee Garza defeated in 2020 (Art by Zeke Barbaro / Getty Images (Petition copy via Re:SEARCH TX))

The complaint points to three broad areas that Harry and Dupuis argue constitute “official misconduct” by Garza: a blanket non-prosecution policy around all drug possession and abortion cases, his office “indiscriminately presenting” law enforcement excessive force cases to grand jury, and his office maintaining a “do not call to testify” list of law enforcement officials.

None of these allegations are likely to bear out in court. For drug possession cases, Garza has not rejected all offenses – his prosecutors have sought to pursue cases that represent a broader threat to public safety, like when someone is also dealing drugs. When mere possession cases are rejected, defendants are also required to participate in a diversion program, which is an exception included in HB 17.

Garza’s office has not been presented with any abortion-related offenses since HB 17 took effect last year, a D.A. spokesperson tells us. And even if they had, Garza’s statements from 2020 about not prosecuting abortion cases cannot be used against him, because HB 17 only applies to policies enacted after the law took effect. The complaint does not point to any statements from Garza after that date and the spokesperson tells us the D.A. does not have a policy of non-enforcement of abortion-related offenses.

Instead, the spokesperson said, “our office will review all such charges on a case-by-case basis to determine if they warrant prosecution.” Garza and “every other D.A. in Texas” is allowed to do that – even under HB 17 – Laurin told us. “There is nothing about the law that limits the criteria that prosecutors have used to evaluate cases,” Laurin continued. “Which has always included not only proving the case to a jury, but other considerations like office priorities, staff resources, and relative severity of the offense.”

Garza’s policy of presenting all on-duty excessive force cases to a grand jury is not novel, either. His predecessor, Margaret Moore, abandoned the practice in 2017, but before that, previous Travis County district attorneys had similar policies in place. They agreed that the grand jury was a valuable investigative tool to determine if a police officer should be charged with a criminal offense for on-duty use of force.

Is it better for one prosecutor to decide if a police officer should be cleared in an on-duty excessive force case, Laurin wondered, or is it better for a grand jury – a representative body of a community – to make those decisions? “From a well-functioning democracy standpoint,” Laurin said, “I’ll take the latter.”

For now, the future of the petition is in Waldrip’s hands. The Comal County judge could dismiss the case on its merits; if he doesn’t, Garza, who is represented in the suit by private counsel, will likely file a motion to have it dismissed.