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This month, a new law was enacted in Texas by the Republican-led Legislature, empowering the removal of prosecutors from office if they opt not to pursue specific crimes. The objective of this legislation is to control district attorneys in Texas’ sizable, left-leaning counties, who are considered to be acting independently and against the prevailing norms.
But in what could be the first petition under House Bill 17, the Democratic district attorney in Hays County is being targeted by a member of his own party.
In January, Avrey Anderson, the District Clerk of Hays County, and Kelly Higgins, the District Attorney, found themselves at odds shortly after being sworn into their political positions. Both Anderson and Higgins are newcomers to the world of politics.
Anderson filed a petition to remove Higgins from office earlier this month. Using the new provision HB 17 created, Anderson alleges Higgins has refused to prosecute low-level drug offenses. The allegations are based on promises Higgins made during his campaign in 2022 to not prosecute minor marijuana-related offenses, as well as violations of the state’s strict abortion ban.
Many Texas prosecutors, including Higgins, are not the pioneers in making such promises. Numerous law enforcement officials and district attorneys in urban areas of the state have already refrained from prosecuting certain misdemeanors, specifically cases involving small quantities of marijuana. This decision is mainly driven by the belief that these cases contribute to the overload of the criminal justice system and disproportionately affect people of color.
Anderson expresses his endorsement for the decriminalization of cannabis and misdemeanor drug possession. However, he perceives HB 17 as an opportunity to oust Higgins from his position following a prolonged period of personal discord.
At only 20 years old, Anderson stands as one of the state’s youngest elected officials. He revealed that Higgins had issued a threat to hold him in contempt for not expediting the issuance of subpoenas, along with spreading negative remarks about Democratic judges and mocking his young age. Anderson drew a parallel between the district attorney and former President Donald Trump.
Anderson clarified, “I want to emphasize that my decision to file the petition to remove Higgins wasn’t driven by political motives. However, I firmly believe that it was crucial for our party to take this step. We cannot afford to have a bully within our ranks, as our party’s core mission is to confront and oppose such behavior.”
Higgins refused to provide a comment regarding ongoing legal proceedings, but affirmed that his office does not maintain any policies regarding the non-prosecution of any category of crime.
According to Higgins’ written response to the petition, Anderson displayed a lack of cooperation when offered help to improve his office’s stability, along with a clear demonstration of incompetence and a refusal to make progress. Additionally, the district clerk was witnessed taking selfies within the courtroom and playfully spinning in a district judge’s chair, as stated by Higgins.
The court has received a request from the Hays County district clerk to conduct a jury trial and suspend Higgins during the proceedings. Experts believe that the outcome of Higgins’ case will serve as a benchmark for determining the necessary evidence to remove a prosecutor from office according to the new law. Additionally, this situation prompts speculation about potential changes in district attorney campaigns in light of the recent legislation.
Allegations based on campaign promises
Higgins’s campaign focused on prioritizing the county’s limited resources towards prosecuting violent crime, while assuring residents that their personal decisions would not be subject to prosecution.
“We cannot continue to spend taxpayer funds to pursue every offense without regard for its seriousness and danger to the community,” Higgins said as part of his campaign platform.
Democrats have a slim majority in Hays County — 54.4% of voters cast a ballot for Biden in the 2020 presidential election. In 2022, Higgins beat a Republican for his seat by more than 6 percentage points.
According to his campaign website, which was still accessible at the time the petition was filed, Higgins had intentions to shift resources from prosecuting substance use to supporting community groups that offer treatment options.
According to Anderson, since Higgins assumed office, a significant number of drug possession cases involving substances like cocaine and methamphetamines have been inexplicably rejected, which the petition argues supports the notion that Higgins fulfilled his promise.
The district clerk, in his initial petition, also accused Higgins of failing to pursue medical malpractice claims pertaining to abortion procedures and healthcare for transgender youth, which were promises made by Higgins during his campaign. However, Anderson dismissed these charges, stating that they conflicted with the best interests of his constituents.
According to Roger P. Abshire, a political scientist at Texas State University in Hays County, the court will need to address the question of whether a campaign platform that has not been disavowed can be considered as a policy.
The issue to be resolved is whether Higgins’ campaign statements, which were made prior to the law’s implementation on Sept. 1, can be considered in this case. Higgins’ defense contends that only statements made after Sept. 1 should be applicable under the law.
Abshire mentioned that the removal of Higgins could potentially lead to a transformation in the way prosecutors conduct their campaigns.
Abshire expressed curiosity about the potential impact and changes in the platforms going forward. They suggested that there might be instances where district attorneys subtly convey their message through coded language instead of stating it explicitly.
Removal attempts
The attempt to remove Higgins comes in the background of state impeachment proceedings against Texas Attorney General Ken Paxton, which ended in an acquittal last week, but also exacerbated a widening rift within the Texas GOP.
According to James Riddlesperger, a political scientist at Texas Christian University, what we are witnessing is a broader trend of politicizing removal processes.
Removing elected officials from office — whether through legal channels or impeachment — was once considered a rare, last-resort process. But it’s become far less rare in recent years: Trump was impeached twice, and the U.S. House is currently considering impeaching President Joe Biden. And at the same time Paxton’s trial was happening in the state Senate this month, the Texas A&M student body president also faced impeachment for allegations of misusing his office.
The initiation of the removal process with HB 17 has faced criticism from members of the Hays County Democratic Party towards the district clerk, resulting in backlash. John Hatch, who serves as the chair of the Hays County Democratic Party, referred to Anderson as a “foot soldier” carrying out the Republican Party’s agenda.
Hatch expressed his confusion regarding using a law that contradicts one’s own beliefs and principles to address personal issues with Mr. Higgins. He further stated his objection to utilizing public funds for resolving personal conflicts.
More than 50 years later, former President Gerald Ford fondly recalled the wise counsel of renowned Texas statesman Sam Rayburn, who served as the former U.S. House Speaker. Rayburn’s advice to the incoming congressmen was to master the art of disagreeing without becoming disagreeable. Ford regarded this guidance as one of the most valuable pieces of advice he had received during his time in office.
However, Riddlesperger suggests that in this time of polarization, advice may no longer have a lasting impact.
According to Riddlesperger, name-calling has been a constant presence in politics. However, the current level of nastiness and the strong desire to engage in character assassination represents a distinct shift in behavior.
Disclosure: Texas Christian University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
