The Texas Legislature passed a bill on May 28 that could pave the way for locally elected prosecutors to be removed from office for misconduct if they fail to enforce certain laws.
House Bill 17 (pdf) was introduced by Republican state Sen. Joan Huffman earlier this year and it passed the Senate Sunday in a 20–11 vote after passing both legislative houses in April.
It now heads to Gov. Greg Abbott’s desk to be signed into law.
Under the legislation, Texas residents who have lived in a county for at least six months may file a petition against a prosecuting attorney accusing them of misconduct if the top local prosecutor fails to “prosecute a class or type of criminal offense under state law,” or if they instruct law enforcement to “refuse to arrest individuals suspected of committing a class or type of offense under state law.”
The legislation defines a prosecuting attorney as a district or county attorney with criminal jurisdiction, while misconduct is defined as “intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law.”
According to the legislation, a public statement from the prosecuting attorney stating that they plan to adopt or enforce a policy in which they fail to enforce certain laws “creates a rebuttable presumption that the prosecuting attorney committed official misconduct,” and means they can face a removal trial for official misconduct.
The legislation also removes pretrial “diversion programs” which allow for conditional dismissals of cases when permissible under state law.
Abortions, Thefts Divide Prosecutors
If found guilty, a judge may order the attorney’s removal, according to the bill’s text. Once removed, Abbott can appoint a prosecutor’s successor until the next election.
“On receiving a petition for removal of a prosecuting attorney … the presiding judge of the administrative judicial region shall assign a district court judge of a judicial district that does not include the county in which the petition was filed to conduct the removal proceedings,” the bill states.
The legislation comes after a group of attorneys nationwide, including five from Texas, signed an open letter (pdf) stating that they would refuse to prosecute any cases that criminalize abortion in the wake of the Supreme Court’s decision overturning Roe v. Wade in June 2022.
Under Texas law, abortion is a felony, except in cases where the mother is suffering from a “life-threatening physical condition” or there is “a serious risk of substantial impairment of a major bodily function.”
Some prosecutors, including Dallas District Attorney John Creuzot, have also said they do not plan to pursue charges of low-level thefts, such as those involving personal items under $750 that are stolen out of “necessity,” or first-time marijuana offenses.
“Unfortunately, certain Texas prosecutors have joined a trend of adopting internal policies refusing to prosecute particular laws,” Huffman said at a committee hearing in April.
“These actions set a dangerous precedent and severely undermine the authority of the Legislature.”
Elsewhere, Republican state Rep. David Cook, who introduced the House version of the bill, has said the legislation is needed to “reign in rogue district attorneys” and remove politics from prosecution.
Democrats Oppose Legislation
Speaking to The Dallas Morning News in April, the GOP lawmaker said HB17 “makes it crystal clear the rule of law must be respected and enforced in Texas.”
“I support prosecutorial discretion and know it is a central element of our criminal justice system,” Cook added.
In a statement on May 19, the Texas Senate GOP said the bill will ensure prosecuting attorneys follow the law and “not their political agenda.”
However, Democrats and civil rights groups in the state have argued that the bill is unconstitutional.
Texas state Rep. Ana-Maria Ramos, a Democrat, voiced opposition to the bill earlier this month during a hearing on the legislation.
“It is very clear what Texans are saying: They want to choose who their district attorney is,” Ramos said.
“What they don’t want is a grandstanding legislator to say ‘no, we are not going to allow you to have this … voice.'”
Elsewhere, state Sen. Sarah Eckhardt, a Democrat from Austin, said the bill amounted to a violation of the state’s separation of powers, calling it “one piece to an unsettling pattern of top-down power-grabbing.”
“Tools like prosecutorial discretion are critical—especially in a state like Texas, where our local district attorneys are directly elected by the people,” Eckhardt said.