Let voters decide fate of DA Garza
New state law may be used to force removal
Pop quiz: Should a countywide official who makes important decisions about criminal cases in Travis County be selected by:
(a) A judge in Comal County
(b) A prosecutor in Bell County (c) The governor of Texas
(d) The voters of Travis County Whatever you might think of Travis County District Attorney José Garza – and the strong views on him run the gamut – it seems obvious that local voters should decide whether he keeps his job.
Especially since this is an election year and all.
But it’s unclear if voters will get that chance or how much it will matter. Under a new “rogue prosecutor” law – which went into effect last fall and paves the way to remove DAs who refuse to prosecute certain classes of crimes – a resident has filed a complaint about Garza; a Comal County judge decided last week that the complaint should proceed; and now a Bell County prosecutor has been appointed to seek Garza’s removal from office through a jury trial (which has yet to be scheduled).
If the jury in that trial finds fault with Garza, the judge could remove him – and then Gov. Greg Abbott, who carried less than 26% of the vote in Travis County in his last election, would single-handedly decide who our next DA should be.
How efficient! Why bother with elections?
Adding the foul taste of sour grapes to this effort, the complaint was drafted months ago by Martin Harry, the Republican attorney who lost the 2020 DA’s race to Garza, a Democrat. Garza won that race by a more than 2-to-1 ratio.
If voters believe that was the wrong call, they had a chance in last month’s Democratic primary to toss Garza (he won with two-thirds of the vote), or they could pick his GOP opponent Daniel Betts in November.
But it should be decided by voters here – not by courts a few counties away, or by a governor with his own agenda.
DA’s office says it evaluates each case
Texas has long had a legal mechanism for removing officials deemed corrupt or incompetent. Last year, lawmakers amended that law to also allow for the removal of elected prosecutors who decline to pursue certain cases – turning the discretionary calls that prosecutors have always made into acts that can get them ousted from office.
For his part, Garza has declined to pursue cases involving less than a gram of drugs unless there is evidence the person poses a danger to the community. And as Texas’ near-total bans on abortion went into effect, Garza announced he would not prosecute patients seeking such care or medical providers who care for them.
Still, a policy memo from Aug. 15, 2023, says Travis County district attorney office staffers reviewing cases should “accept any case for which there is probable cause. If there is not probable cause to move forward, reach out to the arresting officer or the Detective and discuss your concerns with that officer before rejecting the case.”
“The District Attorney’s Office has always evaluated every potential criminal matter brought to our office on a case-by-case basis and will continue to do so,” DA spokesman Ismael Martinez told me Tuesday.
Even then, these are judgment calls. Some people are bound to disagree with them. That is why the DA is an elected position, so voters can pick someone whose judgment they trust.
Voters, not courts, should decide
The fallacy of this new law is the idea that prosecutors are going “rogue” when making these decisions – requiring state intervention – when in fact the criminal justice system turns all the time on discretionary calls.
Not only the times a police officer decides not to cite someone for jaywalking or failing to use a turn signal, or the times a trooper gives a driver a warning instead of a speeding ticket.
But also the times a police department, grappling with an officer shortage, decides not to send officers to certain nonemergency calls. Or the times when a prosecutor sends offenders to a diversion program instead of taking certain cases to court. Or the times that a City Council or the voters themselves send the message that limited police resources should not be wasted pursuing low-level marijuana arrests.
This is not only a big-city phenomenon. DAs elsewhere make judgment calls every day. In fact, in three different medium-sized metro areas, district attorneys declined between 17% and 29% of the cases referred to them, according to a 2021 study by the Deason Criminal Justice Reform Center, a nonpartisan center for research and advocacy at Southern Methodist University’s Dedman School of Law.
No law enforcement agency enforces every rule, every moment of the day, to the fullest extent of the law. Resources are limited. The persuasiveness of the evidence varies. And DA offices must decide which cases are the best use of their time.
This petition is not about holding “rogue prosecutors” to account, but about substituting the judgment of courts elsewhere for the views of voters here. And that’s a worrisome sign for anyone who believes local communities should govern themselves.
Grumet is the Statesman’s Metro columnist. Her column, ATX in Context, contains her opinions. Share yours via email at bgrumet@statesman.com or on X at @bgrumet. Find her previous work at statesman.com/ opinion/columns.