AUSTIN (KXAN) — Earlier this week, the two top prosecutors in Travis County issued formal letters to the Austin city manager — accusing some Austin police officers of declining to investigate crimes and telling potential victims the district and county attorney’s offices will not prosecute the cases.

As a result, KXAN investigators reviewed Travis County misdemeanor and felony court data to see if there was a significant difference in the number of criminal cases the two prosecutors’ offices were dismissing, compared to previous years.

Of the total number of misdemeanor and felony cases closed during the first six months of both 2019 and 2020, the number dismissed was relatively similar.

About 49% of misdemeanor cases closed by the county attorney’s office in January through June 2019 were dismissed. Thirty-six percent of felony cases closed by the district attorney in the same six-month time frame were dismissed.

In the first six months of 2020, 43% of closed misdemeanor cases and 39% of closed felony cases had been dismissed.

The most significant change occurred in the first six months of 2021, when County Attorney Delia Garza took office. About 77% of misdemeanor cases closed by Garza’s office were dismissed. In the same time frame, newly-elected District Attorney José Garza dismissed 23% of felony cases.

However, dismissals alone do not give the full picture of how many cases these two offices declined to prosecute.

Cases can also be “rejected,” meaning they were dropped earlier in the criminal process, before formal charges were filed against a defendant or even before they are booked into jail.

The data for 2021 reflects around a thousand more cases rejected post-magistration in 2021, compared with the two years prior — meaning the person entered the criminal justice system, but the case was dropped before a formal indictment of charges was brought against them. The district attorney’s office explained a case could be rejected at any point in the process, before the person is indicted, taken to trial, enters a guilty plea or enters into diversion.

The office explained in August 2020, they began coding rejections and dismissals differently, citing this change as one of the main reasons rejection numbers spiked in 2021.

Brian Pérez-Daple teaches at the University of Texas School of Law. He explained why a prosecutor’s office might drop a case by dismissal or rejection in the first place.

“There’s a huge gap between probable cause, which is what’s required to bring a charge, and proof beyond a reasonable doubt, which is what’s required to convict at trial,” he said.

Early case review

The district attorney’s office said that’s one of the main reasons it implemented a new policy called “early case review” in April. Since then, they’ve rejected more cases pre-magistration. So when rejections and dismissals are considered, the rate of cases the DA declined to prosecute is closer to 42% of cases closed in the first six months of 2021.

Efrain De La Fuente, an assistant district attorney for Travis County said, “This affords us the opportunity to starting looking at these probable cause affidavits — these charges police are making out of the streets when they arrest a citizen and bring a citizen to a booking facility.”

At that point, he explained, a prosecutor will begin reviewing the case to ensure there is enough evidence under their policy to continue pursuing it.

“We had citizens sitting in jail on cases that — had we looked at them earlier — they would have been released earlier.”

Efrain De La Fuente, an assistant district attorney for Travis County

He said by getting involved earlier, they hoped “to ensure that we are not spending time, resources on cases that should have never gone anywhere because it was lacking probable cause.”

Pérez-Daple explained, generally, an early case review process would be more efficient for the justice system as a whole.

“They have to have some sort of initial hearing or bail hearing. Maybe they don’t make bail. Now, they are in jail for a few days, maybe longer, only to find out that the case was just going to be dismissed shortly thereafter,” he said. “There are costs to the system: jail, housing, transportation, judge, clerk, magistrate. Then, of course, there are costs to the defendant whose life has been disrupted.”

De La Fuente noted sometimes they will ask law enforcement for further investigation during early case review.

“Maybe there are things they can do: go out there back to the scene, continue with their investigation and maybe come back some other day when they have all the pieces, all the sufficient evidence, for the case to continue,” he went on.

Still, some law enforcement groups have come out and opposed the practice, seeing it as not only an affront to their work, but a dangerous practice.

In a press release from July, Executive Director of the Combined Law Enforcement Associations of Texas (CLEAT) Charley Wilkison wrote, “José Garza has misused his official position of elected office. Taxpayers are unknowingly funding his whimsical journey of reimagining a Texas with criminals roaming the neighborhoods magically rehabilitating themselves and morphing from home invaders, armed robbers, drug offenders, and mass shooters.”

“This order has put law enforcement officers and jailers in situations in which a suspect arrested for a felony is released back into the public before the arresting officer has even made it back into their assigned area after leaving the jail.”

Charley Wilkison, executive director of CLEAT

Wilkison insisted by rejecting cases pre-magistration, the new early case review policy “actively circumvents state law and the checks and balances of the criminal justice system.”

President of the Austin Police Association Ken Casaday responded to the Travis County Attorney and District Attorney’s recently filed letters by saying, in part, “When the prosecutor’s office uses the system as a revolving door, allowing suspected criminals out at an alarming rate it is an ineffective use of limited police resources. The negative impact and ramification for the victims is a real and serious concern.”

• Read their full statement here.

Drug cases

Pérez-Daple noted other times, prosecutors might refuse to move forward with a case that is not in line with their enforcement priorities.

In Travis County, the DA’s office has been clear: it will not prosecute narcotics crimes unless prosecutors, and/or law enforcement, believe there is a risk to public safety that necessitates an arrest.

In data provided to KXAN, they explained in the nearly 500 defendants’ cases they’ve reviewed under the early case review process since April, they pursued nearly 136 drug-related cases and rejected 79. He said they accepted more than 440 non-drug-related cases brought to them and rejected 23.

KXAN requested rejection data from the Travis County Attorney’s office, and we will update this story when that is available.