HAYS COUNTY, Texas (KXAN) — There’s a petition to have the Hays County district attorney removed from office.
The person who filed it? The Hays County district clerk.
What is the petition alleging?
The petition was filed by Hays County District Clerk Avrey Anderson on Tuesday, Sept. 12. I
It alleged that Hays County DA Kelly Higgins implemented and executed a policy or policies that refused to prosecute a class or type of criminal offense under state law.
The petition said DA Higgins has made public declarations that he would not prosecute the following:
- simple drug possession offenses
- simple cannabis possession offenses
- procedures committed by a licensed physician in the case that they are treating transgenders
- procedures committed by a licensed physician in the case they are performing abortions
According to the court documents filed, there’s been an excessive amount of felony possession of cannabis, methamphetamine and cocaine cases being declined for “random and nonspecific reasons.”
These claims come just weeks after a new state law went into effect.
“Removing a prosecutor became a lot easier on September 1 of this year,” Texan Legal Partner Manuel Arambula said.
In a previous interview with Higgins, he told KXAN certain low-level charges have been declined but on a case-by-case basis.
“With those cases, we’re looking for other charges that are next to them,” Higgins said at the time. “Gun, stolen property, other circumstances that might make us want to pursue that. So there’s not like a policy about any particular charge.”
Regarding the petition, Higgins said he is not at liberty to discuss pending litigation.
Anderson, who also ran as a Democrat, told KXAN he agreed the prosecution of minor drug offenses have negatively impacted the justice system but, “this doesn’t mean that I or any other elected official can personally undermine the laws that we swore to uphold, or in the case of the District Attorney enforce.”
In the petition, Anderson requested Higgins be temporarily suspended and another person appointed in his place.
House Bill 17
The petition cited House Bill 17, new legislation that went into effect on Sept. 1.
It now allows the courts to remove a district attorney for misconduct if they choose not to pursue certain types of crimes.
“For example, misdemeanor marijuana possession, or physicians who violate any of the laws that the State of Texas has now deemed should be criminal acts,” Arambula said. “If you say you’re not going to prosecute those cases, you can be removed.”
Arambula said he expects to see more of these petitions will pop up across the state.
“A lot of democratic and progressive district attorneys have said overtly, ‘Hey, we’re not going to prosecute certain crimes,'” he said.
The petition referenced part of the bill that states: “A public declaration or announcement by a district attorney or a county attorney of an intent to prohibit the enforcement of any criminal offense is prima facie evidence of an adoption or implementation of a formal or stated policy for purposes of this chapter.”
Ultimately, if Higgins is removed Texas Gov. Greg Abbott would pick his replacement.
But, Arambula said he anticipates at some point, this law will be challenged.
“Whether or not it’s constitutional in terms of whether it interferes with a district attorney’s ability to effectively prosecute the way they see fit,” he said.
What happens next?
A jury trial was demanded by the petition, as required by the Texas Local Government Code.
Arambula said a judge will first decide whether there’s a legitimate case. If it moves forward, a prosecutor from another county will be appointed.
There will be a hearing during which Higgins can respond with his defense.
