Texas’ New Law Seeks to Kick Out Elected Prosecutors (Especially Ours)

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September 1 will start a frightening new era for criminal justice in Texas, as the "rogue prosecutor" law takes effect.

It's tempting to assume that the law – which punishes district attorneys for refusing to prosecute certain types of crimes – is a straightforward push for a crackdown on abortion, in direct response to some of Texas' most prominent D.A.s announcing in 2022 that they wouldn't prosecute abortion providers. But there's more going on here. The law recently signed by Gov. Greg Abbott plays into the larger antidemocratic effort to stifle and ultimately remove locally elected progressives, however possible.

On its face, the new law exerts control over which cases prosecutors take on. But that is just one effect. Its secondary, more covert function is to keep locally elected D.A.s silent, or have them face removal. House Bill 17 works by defining any "policy of refusing to prosecute a class or type of criminal offense" as "official misconduct" for which prosecutors can be removed from office. Two major problems there: A "policy" is loosely defined as a "directive expressed in any manner," and throwing out bad cases or trivial ones is an essential function of any D.A.'s office.

What that adds up to is a law that blocks D.A.s from talking about one of their most important and frequent tasks – choosing which cases to pursue – for risk of saying something that sounds like a "directive." If that happens, a D.A. won't be removed by voters in the next election cycle, but by "a petition … filed by any resident of this state" (if the petitioner lives in the D.A.'s county at the time of the "misconduct").

"Part of what's terrifying about these bills is that someone can really harass these offices," said Jessica Brand, founder of Austin criminal justice advising firm the Wren Collective. "I think people underestimated how fast antidemocratic sentiment would manifest itself this way."

Ejecting Electeds

It's no secret that liberals in Texas are highly motivated to get Democrats elected downballot, to the ire of the Texas GOP. Elected Democratic district attorneys including Travis County's José Garza have become a convenient target of Republicans who bill themselves as tough on crime.

The nationwide rise in homicide rates in 2020 gave the GOP fodder to aim at D.A.s elected amid the increasingly visible progressive prosecutor movement, defined partly by efforts to reduce mass incarceration. Research into crime rates in major cities before and after the election of progressive prosecutors has since found no evidence linking these D.A.s to rising homicide rates, but that didn't deter Republican attacks. Garza is a favorite subject of Fox News reports – as recently as June 30, Fox ran a Garza story with a headline like all the rest, calling him "Austin's Soros-backed DA" responsible for a convicted person "dodg[ing] prison."

At the start of the 88th session, Texas legislators had already filed more than 30 bills directed at stifling locally elected prosecutors, and in terms of antidemocratic effects, the final version of House Bill 17 was tame by comparison. But Texas Repub­licans are not alone in their efforts to remove elected D.A.s. Last summer, Florida Gov. Ron DeSantis suspended Tampa's locally elected Democratic prosecutor over statements that his office would not prosecute abortion-related cases and cases involving anti-transgender laws. Last November, Pennsylvania's House of Representatives voted to impeach Philadelphia's Democratic District Attorney Larry Krasner, not over criminal activity, but over his policy not to prosecute certain minor crimes.

Criminalizing Cannabis & Penalizing Pregnancy Loss

When Garza assumed office in January 2021, he was committed to decline most drug possession cases in which the amount was less than a gram, saying that the county was "wasting potentially millions of dollars" processing cases that the D.A. and County Attorney's Office wouldn't ultimately prosecute. But there are only two types of crime that D.A. Garza had, prior to HB 17, categorically refused to prosecute: abortion-related crimes and possession of small amounts of marijuana. Despite the new law, we're not likely to see a flood of prosecutions for either, though.

Travis County D.A. José Garza (Photo by Jana Birchum)

If an effective law is one that deters a certain behavior, then Texas' bans on abortion have been extremely effective. Clinics closed. Thousands of pregnant Texans have traveled out of state since 2021 to abort where it's legal. Just last week, researchers from Johns Hopkins published their finding that Texans had nearly 10,000 more births between April and December of last year than would have been expected without the state's six-week ban in place.

All to say, there aren't a lot of illegal abortions happening in Texas. And while it's illegal to provide an abortion in Texas, self-managing an abortion is no crime. So who is there to prosecute?

There are, however, plenty of cannabis smokers police could go after if they wanted. But it's a hard crime to prove. When the Texas Legislature legalized hemp in 2019, they defined legal hemp as cannabis containing less than 0.3% tetrahydrocannabinol (THC). A cop's visual or smell assessment of cannabis can't prove that a substance is illegal "marijuana" rather than legal "hemp," and field tests are notoriously unreliable. Good thing, then, that insufficient proof that a crime has been committed is still a safe reason for D.A.s to dismiss a case under the new law. That wasn't always the plan.

Let’s Talk About Innocence

The concept of "reining in" prosecutorial discretion is inherently problematic. Forcing prosecutors to pursue charges they'd otherwise drop rams right up against a cardinal principle of our justice system – that you are innocent until proven guilty.

There's a distinction here worth breaking down: Defense attorneys are charged with advocating zealously for their client, even if they know that client is guilty. Prosecutors are charged with doing justice. Prosecuting someone who a D.A. thinks to be innocent is wrong – so wrong that proof of it would be grounds for a new trial.

So what Texas Republicans have characterized as "rogue" prosecution is actually very much in alignment with this country's principles. The GOP demonstrated unawareness or willful disregard for the presumption of innocence when their efforts to rein in "rogue prosecutors" started back up this legislative session. As it was introduced, HB 17 would have barred D.A.s from avoiding prosecutions on any categorical basis, without an exception for insufficient evidence.

The final version of HB 17 that was signed into law at least makes exceptions to the no-policies rule for insufficient evidence, and to provide for diversion (e.g., "You see a therapist and stay out of trouble for three months, and we'll dismiss this case") and conditional dismissals (e.g., "You testify about your knowledge of a more serious crime than the one you're charged with, and we'll drop it").

But there are other just reasons to dismiss cases on a categorical basis that the law doesn't account for: the most basic being the ratio of criminal acts to prosecutors in a community. Just as police with limited staff prioritize which 911 calls to respond to by the severity of the situation, prosecutors have discretion to drop relatively inconsequential cases so they can focus limited personnel on the offenses most harmful to their community.

For this reason, certain crimes just don't get prosecuted in Texas. You may have heard that it's a state jail felony to own more than six sex toys in this state. That's true, but no prosecutor in Texas is dedicating their limited resources to enforcing that law. Wage theft by employers is another "class or type" of crime that, historically, has not been prosecuted – instead, it's been left to civil courts where plaintiffs seek damages.

But given that those failures to prosecute entire classes of crime didn't get Repub­lic­ans up in arms, and the unprosecuted crimes that do get them up in arms – abortion, marijuana, unfounded election violations – lack solid enough evidence to move forward, what was the point?

If you are to believe HB 17's author, Republican state Rep. David Cook, "The purpose of this bill is to eliminate politics from prosecution."