AUSTIN (KXAN) — Travis County District Attorney José Garza must record his presentation of evidence to a special grand jury considering whether there is evidence that several officers used deadly conduct during the racial justice protests in May 2020.

Attorneys for an officer, Doug O’Connell and Ken Ervin, filed an emergency motion asking the grand jury proceedings be recorded. A district judge signed the request and in a rare move has ordered that the district attorney must record audio of the grand jury proceedings related to the officers accused of deadly conduct.

“We’ve had concerns for about two and a half years, the entirety of the time that Mr. Garza has been elected district attorney,” Ervin said.

“We have lots of flags and smoke about what we would call improper conduct in front of the grand jury. Specifically, just feeding the grand jury evidence leading toward indictment and not giving over evidence that is favorable to the defendant under investigation,” he continued.

Sources tell KXAN the district attorney presented evidence against at least three Austin police officers accused of deadly conduct.

The Travis County District Attorney’s Office released a statement Wednesday on the “grand jury process and comments from the Austin Police Association.”

Cases for three officers were presented to a special grand jury last week — and cases for an additional two officers were presented this week — stemming from the protests in Austin, according to the Austin Police Association.

The business of Travis County Grand Juries is secret, and TCDAO will not be commenting at this time on any potential indictments issued by grand juries.  

It is unfortunate that instead of honoring the rule of law and focusing on keeping our community safe, the Austin Police Association has chosen yet again to sow discontent and conflict because they are unhappy with oversight decisions made by our community.

We are grateful to the honorable men and women who serve our community every day and to those who are invested in ensuring that anyone who breaks the law should be held accountable. That is how we keep our community safe. We encourage the APA to end their political war against the people they are sworn to protect and serve and, instead, to join us in ensuring that those who commit violent acts are held accountable, regardless of their title, political contributions, or the size of their wallet.

Travis County District Attorney’s Office statement

O’Connell and Ervin told KXAN the decision to record the presentation is a win because it allows them to be aware of any prosecutorial misconduct, improper influencing or withholding of information from the grand jury.

“It might be considered a win for the broader community not just our client,” O’Connell said. “Any time a judge orders a district attorney to preserve evidence and preserve their presentation to the grand jury, it’s an opportunity for the community to feel better and have more confidence that the grand jury is not being manipulated,” he continued.

The new cases being presented Thursday comes days before the three-year anniversary of the May 31, 2020 protests.

The three-year anniversary also marks the last day that charges could be pursued against officers for their actions on May 31, because of the statute of limitations outlined in the Texas Code of Criminal Procedures.

With the exception of specific felony offenses outlined in the code, felony indictments must be presented within three years from the date of the commission of the offense.