Texas Republicans, thwarted by top prosecutors who say they won’t prosecute certain crimes, are pushing back on what they call “rogue” district attorneys.
Two North Texas Republican lawmakers filed bills that would allow Texas Attorney General Ken Paxton to sue district attorneys who refuse to prosecute certain crimes. The legislation — introduced in the House and Senate — would also create a path for removing top prosecutors from office.
Though the bills don’t name Dallas County District Attorney John Creuzot, the legislation is designed to enforce Democrat district attorneys like him, who Republicans complain developed policies they say are “thumbing their noses” at lawmakers.
Crezuot, who declined to comment, has said he won’t prosecute abortion providers, parents who get transgender care for their children or people possessing low-level amounts of marijuana on their first arrest.
House Speaker Dade Phelan, R-Beaumont, coined the term “rogue” DAs at the start of the legislative session last week and it has been echoed by other GOP lawmakers.
“It’s time to rein them in,” Phelan said as he listed his priorities for the legislative session.
Tan Parker, R-Flower Mound, who authored the Senate bill filed last week, said he received positive feedback from district attorneys across the state who “do their job.”
“It’s because they realize that there are those in the profession in Texas and across the country that are more focused on political posturing or driving a political agenda than they are on enforcing the law,” Parker said.
Rep. David Cook, R-Mansfield, filed the companion bill this week in the House.
“Carte blanche public pronouncements by district attorneys that laws we have on the books will be ignored renders the authority of the Legislature to determine what is and isn’t a crime, moot,” Cook said. “It is my intention to rein in renegade district attorneys and ensure the rule of law is respected in Texas.”
If the bills become law, the attorney general could file a petition against a district attorney. The DA would be subject to a trial before a jury and removal from office if found guilty of the new law. The attorney general could file the lawsuit in Travis County or the county where the DA was elected.
Cook served on the House Committee on Criminal Justice Reform, along with Jeff Leach, R-Plano, who said a top priority for him is holding accountable DAs who are “thumbing their nose at the legislature.”
During a committee hearing in October, they expressed frustration with five Texas urban district attorneys who pledged in a joint statement with prosecutors across the country not to prosecute people who “seek, provide, or support abortions” after a U.S. Supreme Court decision took away a federal right to have an abortion.
Creuzot was among the Texas elected prosecutors who signed the pledge. José Garza of Travis County, Joe Gonzales of Bexar County, Mark Gonzalez of Nueces County, and Brian Middleton of Fort Bend County were the other Texans who signed that statement.
In subsequent statements, Creuzot said his office would use discretion on a case-by-case basis.
Garza and Gonzalez also declined to comment. Middleton and Gonzales did not respond to interview requests.
The same five prosecutors announced last year they would not prosecute families whose children receive gender-affirming care after Paxton issued a legal opinion that said certain types of medical care for trans youth are a form of child abuse and Gov. Greg Abbott ordered state agencies to open child-abuse investigations into reports of children receiving gender-affirming procedures.
“When you’ve got prosecutors – not many, just a handful – that seem to be zealously announcing to the public that we disagree with the Legislature on this policy and therefore we’re not going to enforce these laws, prosecute these entire class of offenses, that to me is very problematic and should be concerning,” Leach said in the hearing.
The committee also discussed Creuzot’s policies against prosecuting people for first-time, low-level possession of marijuana and misdemeanor thefts of essential items like baby formula. The two policies were hallmarks of his first term. Creuzot rolled back his theft policy after winning re-election in November.
Middleton testified during the hearing and said district attorneys issue statements to convey their positions on issues to voters.
“My goal would be to prohibit those types of statements from being made … there needs to be some type of penalty for it,” Cook, the Mansfield Republican, responded.
Leach said such policies and statements offer “blanket immunity” to criminals. But Rep. Joe Moody, D-El Paso, argued Creuzot’s policies did not amount to blanket immunity because they targeted “specific fact scenarios.”
The lawmakers acknowledged prosecutors have quietly used their lawful discretion for years to decide how to handle cases. Prosecutorial discretion ought to be protected, they said.
“What benefit is there to that being announced to the public?” Leach asked.
Pamela Metzger, a law professor and SMU’s Deason Criminal Justice Reform Center who testified, suggested the public might prefer to know where their elected leaders stand. The announcements create opportunities for dialogue and reform, she said. Metzger has studied Creuzot’s marijuana policy and its effect on minimizing racially disparate arrests and prosecutions.
District attorneys should be transparent about their priorities and voters should elect leaders based on that information, said Miriam Krinsky, the executive director of Fair and Just Prosecution, the group that published the nationwide statement from prosecutors on abortion cases last year.
Prosecutors must balance their limited time and resources and often use discretion to devote more efforts on violent crimes, Krinsky said. She noted some states still have laws that criminalize biracial marriages and work on days of religious observance.
“It’s absurd to suggest that every law on the books is worth the dedication of resources to see it prosecuted,” Krinsky said. “And indeed, if that were the fact, we would have to exponentially enhance the resources of law enforcement and prosecutors just going around and enforcing and prosecuting every single law. Not only would that be a ridiculous use of limited resources, but it doesn’t make us safer.”
The Texas District and County Attorneys Association, a non-profit organization for prosecutors, said the Texas bills are “essentially a slimmed-down version of the anti-sanctuary cities bill” of 2017. That law created criminal penalties for top law enforcement officers and a path to remove elected or appointed officials who hinder enforcement of immigration laws.
“It is possible that one or more bills like these could be tabbed by the governor as ‘emergency items’ in the coming weeks. Such a designation frees the legislature to vote on those bills ASAP (rather than the usual 60-day delay imposed by the state constitution),” the organization wrote on its website.
So-called progressive prosecutors have upset Republican lawmakers nationwide.
New York Republican Rep. Nicole Malliotakies sponsored a bill in June titled “Prosecutors Need to Prosecute Act” that would require local prosecutors to report the crimes they declined to prosecute. But support for the bill declined because lawmakers said the federal legislation infringed on local law enforcement.
In Florida, Republican Gov. Ron DeSantis removed the top prosecutor in Tampa Bay, Democrat Andrew Warren, over his pledge against prosecuting abortion cases that Creuzot also signed. Warren also voiced opposition to prosecuting transgender health care cases and instituted policies against prosecuting some low-level crimes.
In Pennsylvania, the Republican-controlled House voted to impeach Philadelphia’s DA, Democrat Larry Krasner. He’s entitled to a civil trial that was delayed indefinitely. Among the reasons the House said Krasner should be removed are his decisions not to prosecute some low-level crimes including drug cases and prostitution.