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Texas Legislature passes bill reining in “rogue” prosecutors

A view of Houston's Criminal Justice Center. Credit: Pu Ying Huang for The Texas Tribune
Pu Ying Huang
The Texas Tribune
A view of Houston's Criminal Justice Center. Credit: Pu Ying Huang for The Texas Tribune

The Texas Legislature passed a bill Sunday to eradicate much of the discretionary power bestowed upon locally elected prosecutors.

House Bill 17 would allow the courts to remove district attorneys for misconduct if they choose not to pursue certain types of crimes. The Republican priority legislation was proposed as a way to rein in “rogue” district attorneys in Texas’ large, left-leaning counties who have little appetite to pursue alleged abortion-related or election crimes.

The legislation will also likely jump-start marijuana prosecutions in several counties that have recently declined to pursue low-level pot possession cases.

The House and Senate approved the final version of HB 17 after a small group of lawmakers negotiated between the two chambers’ proposals behind closed doors. The final version, which largely aligns with the House version of the bill, cleared the lower chamber on a 83-58 vote. It was approved by the Senate with a 20-11 vote.

HB 17 now heads to Gov. Greg Abbott, who has said the legislation is one of his priorities. With his support, the bill will become law in September.

Other efforts to rein in prosecutors — including a proposal to transfer some of their authority to the Office of the Attorney General — failed to gain traction during this legislative session.

Elected prosecutors have wide discretion to decide which cases they take on. It’s a power that, in the past, was typically supported by law-and-order conservatives — until major Democratic cities began electing progressive district attorneys who turned away from some long-standing criminal justice practices like pursuing strict punishments for drug possession.

In Texas, the tension hit a boiling point when the state banned nearly all abortions. Some prosecutors have said they do not intend to use their offices’ resources to pursue abortion-related cases. Republican leaders have criticized their stance and have also said they don’t trust prosecutors in big cities to aggressively pursue allegations of voter fraud.

Texas prosecutors cannot be impeached by the Legislature or face recall elections. Outside of criminal convictions, locally elected officials can be removed only through a court process in which a local resident files a petition accusing them of incompetency, official misconduct or drunkenness, according to state statute.

If a state district judge in the county decides the accusation is worth further examination, and a jury later finds a prosecutor guilty, the judge can order them removed from office.

It’s a rarely used process, but if 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. That case is pending.

If HB 17 becomes law, however, a prosecutor’s decision not to pursue a specific type of crime would qualify as “official misconduct.”

Under the bill’s final version, a regional administrative judge would appoint a state district judge from the same region — but not the same county — to oversee the removal trial for the prosecutor. The regional judge would also assign a special prosecutor from nearby. By current law, such removals are meant to be handled by judges and attorneys within the same county as the accused.

Jolie McCullough develops data interactives and news apps and reports on criminal justice issues for the Texas Tribune. She came to the Tribune in early 2015 from the Albuquerque Journal, where her work as a web designer and developer earned her national recognition. She was at the Journal for four years and specialized in interactive maps and data-driven special projects. She is a graduate of Arizona State University’s Walter Cronkite School of Journalism and Mass Communication; while there, she interned as a reporter and online producer at the Arizona Republic and served as the web editor of the student-run newspaper, the State Press.