Texas Republicans vow to crack down on 'rogue' prosecutors — here's why

Texas Republicans are targeting prosecutors who they say refuse to enforce laws against certain offenses — a move that could limit prosecutorial discretion and could force progressive district attorneys and county attorneys to get tougher on crime.

Identical bills introduced in the House and Senate would empower state Attorney General Ken Paxton to take civil action against a prosecutor who adopts a policy to limit the enforcement of any criminal offense. The legislation lets Paxton pursue a fine of $1,000 or more and to seek the prosecutor's removal from office. However, he would have no authority to pursue criminal action.

The bills, from Rep. David Cook, R-Mansfield, and Sen. Tan Parker, R-Flower Mound, come as Republican state leaders vow to challenge local Democratic criminal justice policies. House Speaker Dade Phelan, R-Beaumont, began the legislative session last week by threatening to rein in "rogue" prosecutors, echoing comments he made from last fall. Lt. Gov. Dan Patrick also says he wants to limit prosecutorial discretion, and Gov. Greg Abbott says he wants to end certain bail practices and to adopt mandatory minimum sentences for offenses involving firearms and for smuggling immigrants.

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The increased scrutiny on prosecutors comes after five Texas district attorneys pledged in a statement last year to not prosecute abortion-related crimes after the U.S. Supreme Court ended the federal right to have an abortion. Dallas County District Attorney John Creuzot, who did not sign the pledge, drew criticism with a past policy to not prosecute theft of essential items, which he rolled back after winning reelection in November.

Travis County DA José Garza might find himself on the GOP radar after his office secured indictments against 21 Austin police officers who injured protesters in demonstrations against police brutality in 2020. The officers say they were protecting themselves and others.

“Regardless of which debates our Legislature takes up, the Travis County district attorney’s office will remain focused on prosecuting violent crimes and on working to improve the safety of our community," a spokesperson for Garza's office said.

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Legal insiders are monitoring two additional bills that would affect prosecutors. Rep. Bryan Slaton, R-Royse City, introduced legislation that prohibits prosecutors from adopting a policy to limit enforcement of an election law. Sen. Phil King, R-Weatherford, proposed reestablishing a council that monitors prosecuting attorneys and has authority to file a petition to remove a prosecutor from office for "incompetency or misconduct."

If the council were to file such a petition, the prosecutor would be immediately disqualified from performing prosecutorial duties while the petition is pending. The council existed previously from 1977 to 1985. It would include seven members. The governor would appoint two members, and the lieutenant governor and House speaker would each appoint one member. The state Supreme Court would get one selection and also would establish the process for choosing the remaining two members.

Parker, who authored the Senate bill to unleash Paxton against prosecutors, said an increasing number of district attorneys are jeopardizing public safety by not prosecuting certain crimes.

"Our government was built on the principle of separation of powers," Parker said. "It is the job of the Legislature to enact and repeal the laws on the books, based on feedback from our constituents. However, an increasing number of district attorneys in this state are taking it upon themselves to legislate from their desks, often times against the wishes of the people living in their own communities who are left facing the consequences of their inaction."

Kathy Mitchell, of Just Liberty, a criminal justice reform organization, said eliminating prosecutorial discretion is "antithetical to justice."

"The reason prosecutors have discretion is because police just don't always get it right," Mitchell said.

Nick Hudson, a policy and advocacy strategist at the ACLU of Texas, accused Republican lawmakers of trying to score political points.

"At stake is the ability of local communities to govern themselves," Hudson said. "Local officials are better positioned than the state to understand the public safety needs of their constituents. We have a mechanism for elected officials who are not doing their job. Voters should have that say."

The bills closely follow a new report from the Interim Study Committee on Criminal Justice Reform, which held four public hearings last year. On the topic of prosecutorial discretion, the committee said prosecutors should be able to weigh the facts of each case but they must uphold 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 committee said in its report. "The foundational principle of prosecutorial discretion on a case-by-case basis must be protected. But state laws must be enforced. Any prosecutor who refuses to do so must be held to account."

The Texas District & County Attorneys Association — a nonprofit dedicated to serving prosecutors and their staffs — says that because Abbott, Patrick and Phelan are aligned in cracking down on prosecutors that it should come as no surprise if one or more bill is designated as an emergency item. That would free the Legislature to vote on the bills immediately rather than the usual 60-day delay imposed by the state constitution, the association wrote on its website.