Under a measure considered by a Senate committee on Thursday, March 23, district and county attorneys would be barred from setting any policy by which they decline "to prosecute a class or type of criminal offense," unless necessary to comply with a court order.
Senate Bill 20 targets the recent wave of progressive prosecutors who have won control in Texas' biggest counties and, to Republican leaders' chagrin, enacted diversion programs for low-level drug possession and vowed not to prosecute cases related to abortion or gender-affirming care for transgender children.
The Senate panel also discussed another proposal Thursday that would allow for judges to be removed or suspended if they show "persistent or wilful violation" of Texas' rules for setting bail.
Both bills are priorities of Lt. Gov. Dan Patrick, the powerful Republican who oversees the Texas Senate. They were authored by state Sen. Joan Huffman, a Houston Republican who used to be a prosecutor and criminal district court judge.
"Unfortunately, certain Texas prosecutors have joined a trend of adopting internal policies refusing to prosecute particular laws," Huffman said at Thursday's committee hearing. "These actions set a dangerous precedent and severely undermine the authority of the Legislature."
Texas House Speaker Dade Phelan has not weighed in on either bill, though he has said he wants to crack down on "rogue district attorneys." He's placed two related House bills on his priority list.
One of them, House Bill 17, is very similar to the Senate's proposal and blocks prosecutors from setting or announcing a policy that "prohibits or materially limits the enforcement of any criminal offense."
Under both bills, a district court jury in the prosecutor's home county would decide whether to remove the official, as is the law now.
The other Phelan priority bill, HB 200, would bring back the Prosecuting Attorneys Coordinating Council, made up of judges, attorneys, law enforcement officers and members of the public, that would review complaints against prosecutors and issue punishments.
The council operated briefly in the late 1970s and early 1980s before its duties were absorbed by other agencies.
Huffman's bills are expected to face little trouble clearing the Republican-dominated Senate, despite objections from Democrats who say the measures are an overreach.
"This violation of the state's separation of powers is one piece to an unsettling pattern of top-down power grabbing," said state Sen. Sarah Eckhardt, a Democrat from Austin who served as an assistant Travis County Attorney from 1998 to 2005. "Tools like prosecutorial discretion are critical — especially in a state like Texas, where our local district attorneys are directly elected by the people."
Others argued at Thursday's hearing that key parts of the measure are too ambiguous. Andrew Hendrickson, government relations coordinator at the ACLU of Texas, said the bill's definition of "policy" — "an instruction or directive expressed in any manner" — would leave too much up for interpretation for prosecutors to know whether they're violating the measure.
He argued the bill should also make clear that the use of pre-trial diversion or speciality diversion courts is not the same as refusing to prosecute a criminal offense.
HB 20 drew support, meanwhile, from Jennifer Szimanski, spokesperson for the Combined Law Enforcement Associations of Texas, who said progressive prosecutors' policies are harming public safety and officer morale.
"The spike in crime and mass officer resignations are a direct result of willful neglect to prosecute certain offenses, such as theft, narcotics, firearms violations, etc," said Szimanski, whose group is the state's largest police union. "I'm not sure how officers are expected to operate under these conditions."
Violent crime spiked in most major U.S. cities during the COVID-19 pandemic, and has been falling over the past year in cities like Houston, though it hasn't reverted to pre-2020 levels.
Two anti-abortion advocates testified in support of the bill, including Rebecca Parma, legislative director for Texas Right to Life, who warned that prosecutors who refuse to pursue abortion-related cases would "undercut the gains we have made."
Measures Target Harris County
Another of Huffman's proposals, Senate Bill 21, takes aim at judges whom she said have "completely disregarded state laws in order to push personal agendas."
Huffman did not mention her home county by name, though she and other Republicans have routinely accused Harris County judges of setting overly lenient bail conditions, blaming them for a rise in crimes committed by defendants who are out on bond.
Under SB 21, judges would face penalties — including possible removal from office — if they continually or deliberately violated the state's bail-setting rules. Those laws received a key update two years ago, when Huffman spearheaded a Republican-backed overhaul of Texas' bail system that prohibits judges from granting cashless personal bonds to defendants charged with about 20 types of violent and sexual crimes.
Huffman said her latest bill attempts to ensure that judges follow that law.
Local felony court judges, most of whom are Democrats, say they have set higher bail amounts in recent years, but are still hamstrung in most cases by the state constitution, which generally guarantees defendants the right to bail unless they are charged with capital murder or meet other narrow criteria.
Huffman is looking to loosen those restrictions this year through a constitutional amendment that, if approved by the Legislature and voters, would let judges deny bail in a wider variety of cases.
Judge Genesis Draper, a Democrat who oversees one of Harris County's 16 misdemeanor courts, said she's not aware of any district court judges who are violating state bail rules, recent or otherwise.
She said Huffman's bill appears to be borne out of Republican irritation over the re-election wins of most Democratic judges last November, which came despite a spirited GOP campaign to break Democrats' hold on the Harris County courthouse.
"We have a whole other process to remove judges, and it's called the democratic process, the will of the people," Draper said. "The people have spoken, and have decided to honor the work of these judges and keep these judges. And I think that there is frustration with that."
The Texas Constitution and state law already lay out a system for suspending, removing and otherwise disciplining judges. The process flows through the State Commission on Judicial Conduct, which is tasked with investigating sworn complaints about judges and taking disciplinary actions.
As of now, the commission can only suspend a judge if they have been indicted for a felony or charged with a misdemeanor. SB 21 would require the commission to suspend a judge for 60 days without pay if the commission issued a public reprimand of the judge for violating the state's bail law.
The bill would also set shorter deadlines for the commission to move forward on complaints.
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