Can a DA be removed from office in Texas? What's next for Travis County DA José Garza

A recent petition to remove Travis County District Attorney José Garza from office has sparked backlash from Democratic elected officials and spurred speculation about the validity of its claims. The American-Statesman spoke to legal experts to break down a largely unknown procedure that has entered the political spotlight.

The petition was filed under Texas House Bill 17, which allows for the removal of a district attorney for "official misconduct" — including declining to prosecute certain criminal offenses. The law was part of a movement among state Republicans to rein in "rogue" progressive prosecutors.

Filed on April 8, the petition claims that Garza has policies not to pursue certain charges, including abortion crimes and drug possession. The plaintiff, Mary Dupuis, posted on X, formerly Twitter, that she had filed the petition because she believes her sexual assault case was not properly addressed by Garza's office.

The Statesman has reported that the petition was written by Martin Harry, a former Republican candidate for district attorney.

How did HB 17 change the removal procedure for prosecutors?

House Bill 17 allows for the removal of a county or district attorney for “official misconduct,” expanding on a preexisting procedure that allowed citizens to petition to remove elected officials. The law specified that prosecutorial misconduct includes policies to not pursue certain kinds of crimes, defining a policy as “an instruction or directive expressed in any manner.”

State Rep. David Cook, a Republican from Mansfield, told the Statesman that he had authored the bill because it is "wholly inappropriate" for a prosecutor to "prejudge a case before hearing the evidence."

HB 17 only applies to conduct after the law went into effect Sept. 1, 2023.

The bill dictates that removal cases should go to the presiding judge of the administrative judicial region, who would hand the case to a district judge and prosecutor from a different county. Prior to HB 17, the county attorney prosecuted a removal case against a district attorney.

In the current petition against Garza, Comal County state District Judge Dib Waldrip, who was appointed presiding judge by Gov. Greg Abbott, assigned the case to himself. He appointed Bell County Attorney Jim Nichols to be the prosecuting attorney.

What has happened in Garza’s removal case so far and what will happen next?

Waldrip has issued a citation in the case, allowing it to move forward. The citation is not necessarily a reflection of the judge’s view of the validity of the petition's claims.

“There are no objective parameters by which a judge makes the determination of whether or not citation should be issued,” said Patrick Wilson, a former Ellis County district attorney.

Now, the case is in Nichols’ hands. He told the Statesman in a brief interview that he has no timeline for when he will decide next steps.

"We are on his time and at his will," Cook said of Nichols. "He will review the facts and decide what to do moving forward."

Nichols can choose to investigate the petition’s claims and collect more evidence, according to former Travis County Attorney David Escamilla, who prosecuted the 2013 removal case against Travis County District Attorney Rosemary Lehmberg. Escamilla dismissed the original petition filed against Lehmberg and filed a new suit, focused on Lehmberg’s drunken driving conviction.

The prosecuting attorney can also amend the petition, adding or striking claims — or dismiss the case altogether.

If the case goes to trial, it will be before a Travis County jury. If that jury decides to remove Garza from office, Abbott would appoint his replacement.

What is at the center of the petition to remove Garza?

The petition, written by Harry, the former Republican candidate for district attorney, makes two kinds of claims. The first is that Garza neglected his duties as district attorney by presenting every police use-of-force case to a grand jury and by maintaining a “do not call to testify” list of police officers.

Garza had outlined plans to compile a "do not call to testify" list of police officers in 2021, though a spokesperson for the office confirmed that there is not currently one. Many progressive district attorneys have proposed "do not call to testify" lists, which bar officers with credibility issues from testifying in court. This, in turn, would functionally limit their ability to do investigative work.

The second claim is that Garza has adopted policies to not prosecute entire classes of crimes — namely low-level drug possession and abortion crimes. As proof, the petition refers to campaign promises made in 2020 and statements issued in 2021 and 2022.

The petition claims that Garza had not rescinded his policies of nonprosecution by Sept. 1, when HB 17 went into effect, because those statements were still available on Garza’s website.

However, the Statesman acquired an internal policy memo from Aug. 15 that said Travis County district attorney office staffers reviewing cases should "accept any case for which there is probable cause."

Have petitions been filed to remove prosecutors before?

Petitions to remove district attorneys are rare, and cases that reach trial are rarer.

In recent years, El Paso District Attorney Yvonne Rosales and Nueces County District Attorney Mark Gonzalez have faced removal petitions, both filed before HB 17 went into effect. Both Rosales and Gonzalez resigned before their cases went to trial.

In 2018, Tyler County District Attorney Lou Ann Cloy was removed from office by a jury verdict.

Since HB 17 went into effect, removal petitions have been filed against district attorneys in Hays County and Travis County. Shortly after Hays County District Clerk Avrey Anderson filed a removal petition against Hays County District Attorney Kelly Higgins, Anderson requested that his suit be dismissed.

The first petition filed under HB 17 against Garza was similarly short-lived. The case was dismissed in January because the plaintiff, Jason Salazar, had a pending drug possession charge. As the Statesman has previously reported, the content of Dupuis’ petition is the same as Salazar’s, having originated from Harry.

This article originally appeared on Austin American-Statesman: What's next for 'rogue prosecutor' lawsuit against DA José Garza?