Texas House members have approved legislation that would force district attorneys to think twice about turning a blind eye to certain crimes under the guise of “prosecutorial discretion.”

Passed by a vote of 97-51, House Bill 17 by State Rep. David Cook (R-Mansfield) expands the definition of “official misconduct” to include “a prosecuting attorney’s adoption or enforcement of a policy of categorically refusing to prosecute specific criminal offenses under state law.”

The legislation defines “prosecuting attorney” as a district attorney or a county attorney with criminal jurisdiction.”

If a resident believes the prosecuting attorney is engaging in such misconduct, he or she could submit a petition for removal, initiating a proceeding to remove the prosecuting attorney from office. Public statements expressing an intent not to enforce certain laws would be sufficient grounds for removal.

Cook said the purpose of the legislation is to “remove politics from prosecution,” arguing that failure to enforce the law “set a dangerous precedent.”

“To be clear,” he explained, “I support prosecutorial discretion and know that it is an essential element of our judicial system and criminal justice system. However, I do not support politically motivated virtue signaling that grants legal immunity to criminals, which endangers our public safety in our communities.”

The legislation contains exceptions for complying with an injunction, determining the admissibility of evidence prior to prosecution, and allowing certain defendants to participate in a pretrial diversion program. Cook credited State Rep. Joe Moody (D-El Paso) for suggesting these exceptions, which were not part of the original bill.

Following the Supreme Court’s landmark decision last summer to overturn Roe v. Wade, Democrat district attorneys in five urban counties announced they would not enforce the state’s ban on abortion. In addition, prosecutors in some jurisdictions have implemented lower bail and sentencing guidelines, which has led to an increase in crime, as several witnesses testified in the bill’s committee hearing last month.

Legislation to address this issue has been designated a priority by Gov. Greg Abbott (R), Lt. Gov. Dan Patrick (R), and House Speaker Dade Phelan (R-Beaumont).

Several Democrats questioned Cook about the bill.

State Reps. Julie Johnson (D-Farmers Branch) and Harold Dutton (D-Houston) asked Cook about the meaning of the term “policy,” which the bill defines as “instruction or directive expressed in any manner.”

When Cook said a prosecuting attorney’s participation in a political protest could be equated with evidence of “pre-judging a case prior to hearing the facts of a case,” Johnson expressed concern that “a prosecutor has no independent right of free speech.”

Dutton asked if a practice of not prosecuting certain crimes would qualify as a policy, providing a hypothetical example of a prosecutor refusing to take any action against police officers who shoot unarmed black men.

Cook answered that “it could.” Dutton ultimately voted for the bill.

State Rep. Ann Johnson (D-Houston) asked if the legislation would interfere with prosecuting attorney’s duty “not to convict but to see that justice is done.”

“Not in my opinion,” replied Cook.

Moody offered an amendment clarifying that statements made prior to the bill’s enactment are not grounds for removal, and Terry Canales (D-Edinburg) offered another stipulating that the losing party in a proceeding to remove a prosecuting attorney from office would have to pay the other party’s attorney fees. Both amendments were accepted.

An amendment offered by State Rep. Ana-Maria Ramos (D-Richardson) to exempt campaign speech from the statute’s application was voted down.

Upon the bill’s passage, Speaker Dade Phelan (R-Beaumont) praised the House for taking action to “rein in rogue prosecutors.”

The Texas Senate passed a similar version of the bill earlier this month. The two chambers must work out their differences before the conclusion of the current legislative session, which ends May 29.

Darrell Frost

Since graduating from Hillsdale College, Darrell has held key roles in winning political campaigns, managed a state legislator's Capitol office, and taught at a classical charter school. He enjoys participating in outdoor activities, playing the harmonica, and learning about the latest scientific developments.

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