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Criminal Justice & Government Reform: Responding to Rogue Prosecutors

TCCRI's recently published Criminal Justice & Government Reform Task Force Report explored the topic of responding to progressive prosecutors. What follows is an excerpt from the Report on that topic.

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The Legislature cannot simply vote to remove progressive prosecutors from office. Article 5 of the Texas constitution provides for four-year terms for county attorneys, district attorneys, and criminal district attorneys. Article 5, Section 24 states as follows:


REMOVAL OF COUNTY OFFICERS. County judges, county attorneys, clerks of the district and county courts, justices of the peace, constables, and other county officers, may be removed by the judges of the district courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth in writing and the finding of its truth by a jury.

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Article 5 provides no other guidance on the protocol for removal. However, Article 15, Section 7 of the constitution provides that “The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.”

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Although the Legislature cannot simply vote to remove a district attorney, it does have the power to define what constitutes “incompetency” or “official misconduct.” Article 5, Section 24 includes “other causes defined by law” as grounds for removal of county attorneys. The Legislature could reasonably exercise this power to clarify that prosecutors who refuse to prosecute entire classes of offences are guilty of official misconduct. Such a refusal to prosecute behavior could be inferred from a prosecutor’s words or a pattern of behavior.

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There is no hint in the Texas constitution or other law that district attorneys may simply disregard laws with which they do not agree. Like all elected officials in Texas, district attorneys take an oath to “faithfully execute the duties of the office…[and] preserve, protect, and defend the Constitution and laws of the United States and of this State.” Prosecutorial discretion has traditionally permitted district attorneys to consider the unique circumstances of a case and to allocate scarce resources by exercising judgment over which cases to prosecute. But that is distinguishable from declining to prosecute cases because a district attorney believes that the Legislature erred in criminalizing certain behavior. In addition to the above step, the Legislature should ensure that local voters are able to easily learn the crime trends in their counties. Currently, the Department of Public Safety publishes arrest and conviction numbers for counties, but the presentation of the data is difficult to follow and the average Texan has no way of easily locating it. The Legislature could take steps to promote transparency regarding the policies of district attorneys, just as it has regarding local property taxes. Specifically, the Legislature could require all district attorneys to annually publish on the applicable county’s website the following data for each of the previous five years, disaggregated by (1) specific offence, (2) felony or misdemeanor classification, and (3) violent, property, and drug offense:

  • The number of crimes committed in the county;

  • The number of arrests in the county;

  • The outcome of these arrests. Possible outcomes include prosecution for the offence for which the defendant was arrested; prosecution for a lesser offense; refusal to prosecute; pre-trial diversion; deferred adjudication; and community supervision.

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Policy Recommendation: Categorize Refusal to Prosecute Entire Classes of Crimes as Official Misconduct

Chapter 87 of the Local Government Code should be amended to provide that a district attorney’s refusal, whether explicit or implied, to prosecute entire classes of offences based on the personal belief that such conduct should not be criminalized is “official misconduct” and grounds for removal as outlined in in the constitution and statute.


Policy Recommendation: Require District Attorneys to Publish Annual Data

Require district attorneys to annually publish crime, arrest, and prosecution data for offences in their respective counties, disaggregated as described above. This information will help hold district attorneys accountable.


You can read this section in its entirety and the rest of the report here.

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Note that citations have been removed from this post, but are present in the full report linked above.

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