Bill intended to force Texas prosecutors to pursue abortion, election cases passes Senate

The Travis County Justice Complex on July 6, 2022. (Kylie Cooper/The Texas Tribune, Kylie Cooper/The Texas Tribune)

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A bill intended to rein in district attorneys who decline to pursue certain cases passed the Senate on Wednesday. The bill, a priority for Lt. Gov. Dan Patrick, is part of a larger effort to limit the power of elected prosecutors, especially in Texas’ largest, left-leaning counties.

Some district and county attorneys in Texas have said they will not prosecute people accused of violating the state’s near-total abortion bans. There’s also conflict over whether prosecutors will pursue allegations of election fraud, as well as cases involving first-time drug offenders or low-level theft.

Prosecutors have wide latitude to decide what cases their office will pursue. But conservative lawmakers have filed more than 30 bills intending to limit this “prosecutorial discretion.”

“Unfortunately, certain Texas prosecutors have joined a trend of adopting internal policies refusing to prosecute particular laws,” Sen. Joan Huffman, a Republican from Houston who authored the bill, said Tuesday. “These actions set a dangerous precedent and severely undermine the authority of the Legislature."

Senate Bill 20, which passed the Senate in a 20-11 vote on Wednesday, is the first such bill to pass either chamber. Huffman and Sen. Tan Parker, R-Flower Mound, authored the legislation.

SB 20 would prohibit prosecutors from adopting or enforcing a policy “under which the prosecuting attorney refuses to prosecute a class or type of criminal offense.” Such a policy would qualify as “official misconduct”; if a jury finds a prosecutor guilty of misconduct, a district judge can order them removed from office.

Currently, only a county resident can bring an allegation of misconduct against an elected prosecutor. But both chambers are considering separate legislation that would allow residents and prosecutors in neighboring counties, and the attorney general, to file charges of official misconduct.

Other bills would enable the attorney general to take on any cases rejected by a county prosecutor — or sue for tens of thousands of dollars for every day a prosecutor has a policy against pursuing certain cases.

The Texas District and County Attorneys Association has raised concerns about these bills, noting on their website that there is already a system in place for residents of a county to raise issues with their prosecutor — either through bringing misconduct claims or by voting them out at the next election.

State lawmakers trying to override prosecutorial discretion is “another attempt to exert statewide control over a traditionally local function,” Sandra Guerra Thompson, a professor of criminal law at the University of Houston Law Center, told The Texas Tribune. “We’re seeing a lot of that these days.”

Patrick applauded the passage of the bill, along with a similar bill seeking to discipline judges who set low or no bail for people accused of violent crimes.

“It is unacceptable that rogue district attorneys and judges, primarily in big cities, are not following our laws,” Patrick said in a statement. “These bills send a clear message that their delinquent behavior will not be tolerated.”

The legislation initially received the support of two Democrats, Sens. Cesar Blanco of El Paso and Juan “Chuy” Hinojosa of McAllen. But Blanco reversed his support Wednesday and opposed the bill as it got final approval.

Blanco said in a statement that he initially considered the proposal through the lens of the 2019 Walmart massacre that happened in his district. The former district attorney of El Paso “was failing to prosecute this atrocious racist mass shooting,” Blanco said. But he added he heard concerned feedback about his vote from a “handful of allies and organizations” and decided to switch his vote.

The interests of conservative lawmakers and elected prosecutors have often aligned under the Pink Dome, coming down on the same side of law-and-order issues. But this session’s fight over prosecutorial power is representative of a large — and growing — divide between the Legislature and Texas’ more left-leaning population centers.

After the overturn of Roe v. Wade, a handful of prosecutors representing large chunks of the state’s population vowed not to take on abortion-related cases. During a committee hearing in late March, Parker criticized these types of policies as “prosecutorial legislation” and promised to find ways to ensure the laws, as passed by the Legislature, are fully enforced across all 254 counties.

SB 20 will now begin its journey through the House, where similar bills have not yet made as much progress.

Patrick Svitek contributed to this report.

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