These Texas DAs refused to prosecute abortion. Republican lawmakers want them stopped
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Nueces County District Attorney Mark Gonzalez studies past criminal cases his office has prosecuted, inside the county courthouse in Corpus Christi, Texas in 2019.Ryan Poppe -
Florida Gov. Ron DeSantis waits to speak during a press conference held at the Broward County Courthouse on Aug. 18, 2022 in Fort Lauderdale, Fla.Joe Raedle / Getty Images
DALLAS – Texas is at the center of an ongoing, nationwide struggle between state and local authorities. It's an escalating dispute over who has what power — and when.
The newest battle centers on criminal district attorneys in Texas' big cities, who are mostly Democrats. Some of these chief prosecutors have told their communities they will use their inherent discretion and not zealously pursue criminal cases against women who seek abortions or families who obtain gender-affirming health care for their children. (Several later said they would make decisions on a case-by-case basis.)
But declarations from prosecutors have led conservative lawmakers in Texas and elsewhere to propose legislation seeking to curb the power of DAs.
"There is an interesting philosophical debate about where power should rest in a state-local system," says Ann Bowman, a professor at Texas A&M's Bush School of Government. "How much the state should have, how much local government should have."
The fight nationwide
The clash has echoes in other state-local power struggles. In Mississippi, Republican state lawmakers have proposed installing state-appointed judges in the City of Jackson and giving the capitol police force citywide jurisdiction. Jackson is 83% percent Black and controlled by Democrats.
Illinois Gov. JB Pritzker, a Democrat, said county sheriffs "won't be in their job" if they don't enforce a new requirement that owners of semi-automatic rifles register them with the state.
And a county prosecutor in Florida was removed last year after Gov. Ron DeSantis accused him of not enforcing certain laws.
Texas' governor does not have that power, although some legislative proposals would set a process for removal.
That includes one from Texas Rep. David Cook, a Republican from the Fort Worth area. His bill would ban district attorneys from having a policy of not enforcing any particular offense. The bill would set financial penalties, too.
"As a district attorney, you have a job which entails looking at all the cases that are brought in and judging each case on a case-by-case basis," Cook says. "And so, if you're making blanket statements and giving blanket immunity, then you're not doing your job."
In Georgia, similar legislation is moving. There, the state would create a commission to oversee prosecutors and allow for discipline or removal if they refused to charge a particular crime.
Big City DAs in Texas go quiet
Several of the same progressive prosecutors in Texas who made statements after the Dobbs v. Jackson Women's Health Organization decision aren't doing interviews on the proposed bills. The state association of district and county attorneys told members the flood of prosecutor-related bills "deserves your full attention."
District Attorney Mark Gonzalez of Nueces County in South Texas, who is facing an unrelated effort to remove him from office, says the group's announcement to not pursue abortion cases may have been too hasty.
"The statement may have been the straw that perhaps broke the camel's back," says Gonzalez, a Democrat. "I think it'd be smarter for us to move in silence, and I think that may have been something we didn't accomplish."
Yet he sees the bills to curb local prosecutors as part of a larger backlash against a more progressive approach to law enforcement, one that seeks to reduce mass incarceration and prevent its damaging effects.
"We have a different approach to making some changes to it, which can impact people of color and lower economic status," Gonzalez says. "I don't know why that's such a big deal."
Not every local official gets blowback for bucking the state. A group of Texas sheriffs refused to enforce the governor's mask mandate early in the COVID-19 pandemic, yet there was no flurry of proposals to make them follow that law. Some experts say that's because sheriffs align more with the conservative leadership of the state.
State Rep. Cook, however, said he's open to reining them in.
"I have not filed a bill in that regard, but I certainly would not rule it out," he says.
For the moment, though, bills targeting county district attorneys are what's on offer.
Gonzalez says he has no written policy about pursuing certain crimes but tells his office to simply "do the right thing." He's not running for reelection and said he will be happy to watch from the sidelines should any new law get litigated in court.
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Transcript
LEILA FADEL, HOST:
Some Texas lawmakers are trying to make district attorneys prosecute anti-abortion law violations as crimes. Bret Jaspers with KERA reports.
BRET JASPERS, BYLINE: Officials at all levels of government have long acknowledged prosecutors are constantly making judgment calls. Discretion is part of the job, as it is for police officers, judges and other law enforcement. Then the U.S. Supreme Court eliminated federal abortion rights. Dozens of elected county prosecutors swiftly declared they'd use their discretion to not pursue abortion crimes.
(SOUNDBITE OF ARCHIVED RECORDING)
RYAN MEARS: I will never prosecute a doctor, a nurse or a woman for exercising their right to choose.
JASPERS: That's Ryan Mears from Indianapolis. Here's Sherry Boston from DeKalb County, Ga.
(SOUNDBITE OF ARCHIVED RECORDING)
SHERRY BOSTON: I am stating, unequivocally, that I'm going to use that same discretion not to prosecute these types of criminal offenses.
JASPERS: And in Texas, Jose Garza in Austin.
(SOUNDBITE OF ARCHIVED RECORDING)
JOSE GARZA: I don't want women who live in our community suffering or dying at home because they're too scared to go to the doctor.
JASPERS: But the stance of prosecutors in large Texas cities soon raised the ire of conservative state lawmakers. State Representative David Cook is a Republican from the Fort Worth area.
DAVID COOK: As a district attorney, you have a job which entails looking at all the cases that are brought in and judging each case on a case-by-case basis. And so if you're making blanket statements and giving blanket immunity, then you're not doing your job.
JASPERS: Now Cook has proposed a bill to ban district attorneys from having a policy, written or not, that limits the enforcement of any particular offense. The bill would set financial penalties and create a process for removing the prosecutor from office. It's one of many bills aimed at curbing local DAs. Several big-city prosecutors in Texas are reluctant to talk about the legislation and declined interviews. But DA Mark Gonzalez of Nueces County in South Texas is talking. He said the announcement to not pursue abortion cases may have been too hasty.
MARK GONZALEZ: The statement may have been the straw that broke the camel's back. It'd be smarter for us to move in silence, and I think that may have been something we didn't accomplish.
JASPERS: Gonzalez is facing an unrelated effort to remove him from office and has said he won't run for reelection. He sees the proposed legislation as part of a backlash against a more progressive approach to the criminal justice system.
GONZALEZ: No one was thinking of these things 10 years ago, before a few guys got elected who maybe thought there was some issues that were wrong with the criminal justice system. There are.
JASPERS: Similar power struggles are playing out nationally. Florida Governor Ron DeSantis removed an elected Democratic prosecutor from office last year, claiming he didn't pursue certain crimes. Illinois' governor, a Democrat, recently said county sheriffs won't be in their job if they don't enforce a new requirement that owners of semi-automatic rifles register them.
ANN BOWMAN: There is just an interesting philosophical debate about where power should rest.
JASPERS: Ann Bowman is a professor at Texas A&M. She said a state can make it more difficult for a county with what it mandates.
BOWMAN: There are all kinds of preemptions there that weren't there before. It's really a matter of basically the state wanting to control what's going on at the local level.
JASPERS: Yet not every local official gets blowback for bucking the state. Early in the COVID-19 pandemic, a group of Texas sheriffs refused to enforce the governor's mask mandate, yet there was no proposal to make them follow that law. Experts say that's because sheriffs align more with the conservative leadership of the state. State Representative David Cook, however, said he's open to reining them in. Here he is again.
COOK: I have not filed a bill in that regard, but I certainly would not rule it out.
JASPERS: For the moment, though, bills targeting county district attorneys are what's on offer. The statewide association for DAs has told its members to take the proposals very seriously. For NPR News, I'm Bret Jaspers in Dallas. Transcript provided by NPR, Copyright NPR.
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