On July 8, 2021, activists in Central Texas showed up at the office of Hays County District Attorney Wes Mau to deliver a cake with blue icing that spelled out the words “Failed Promise.” 

They were commemorating the anniversary of a commitment Mau and other local law enforcement officials had made a year earlier, in the summer of 2020, to give people charged with certain low-level crimes, such as  marijuana possession and driving with a suspended license, a way to avoid prosecution altogether by completing a court program or community service. Activists with the local group Mano Amiga (“helping hand” in Spanish) had pushed for a so-called cite-and-divert policy for more than a year as part of a larger campaign to roll back the kind of punitive, zero-tolerance policing and prosecution that have defined this county for decades, despite its close proximity to Austin, the state’s liberal capital city. 

At first, Mano Amiga activists like Jordan Buckley, who co-founded the group, cheered officials for finally agreeing to reforms. But then Mau dragged his feet so long that a whole year passed without a cite-and-divert program—hence the “happy birthday” party hat that Buckley ironically wore as he stood outside the Hays County government building last summer accusing the Republican DA of failing to live up to his word. 

“There have been scores of people who have been needlessly arrested for petty offenses and kept these petty offenses on their criminal record because our district attorney’s word is empty,” Buckley said before he and other activists walked the cake up to the DA’s office to offer him a slice (Mau never came out). “In Austin, for example, no one gets a criminal record for possession of marijuana,” Buckley said, “and yet it’s one of the leading arrest charges in Hays County because our district attorney is such a hardliner on cannabis.” 

Organizing by Mano Amiga since last summer has helped turn this November’s elections into a referendum on both marijuana decriminalization and pretrial diversion in Hays County. Activists with Mano Amiga gathered enough signatures to put a measure on the ballot this year that would end citations and arrests for possession of up to four ounces of marijuana in the city of San Marcos, the county seat and home to one of the state’s largest public universities. 

This politically competitive county is also voting for a new DA. Mau is retiring, and the race to replace him could pave the way for the kind of pretrial diversion program that local activists have demanded, and officials have promised, for years. While GOP nominee David Puryear echoes the anti-reform, tough-on-crime rhetoric of state and national Republicans, Democratic nominee Kelly Higgins vows a “sea change” in the county. He has promised to decline prosecution of cannabis possession and at last implement a cite-and-divert program for other low-level charges. 

Higgins would also add to the growing roster of reform-minded officials in Hays County, the fastest growing county in the nation—a reflection of the larger population boom in the I-35 corridor between San Antonio and Austin. Some of those officials attended and spoke at a “Reeferendum Fest” Mano Amiga activists threw earlier this month to drum up attention to the ballot measure in San Marcos—including County Judge Ruben Becerra, a Democrat first elected to lead the county in 2018 on a platform of criminal justice reforms and who is seeking re-election this year. 

When Higgins addressed the “Reeferendum” crowd,” he directly referred to the cite-and-divert policy. “I’m telling you it will happen,” he told activists. “I’m promising you it will happen.” 

San Marcos activists founded Mano Amiga in 2017 soon after Texas adopted a “show me your papers” law, Senate Bill 4, allowing local cops to investigate the immigration status of anyone they detain. At first the group focused on assisting immigrants caught in detention and at risk of deportation due to arrest for minor charges, but eventually their scope grew. 

“SB4 intensified what is commonly referred to as the ‘jail to deportation pipeline’ and made immigrant rights groups like ours, which primarily focused on deportation defense campaigns, realize we needed to push for systemic change that benefits citizens and non-citizens alike, keeping all our neighbors safe from the legal system and deportation,” Mano Amiga communications director Sam Benavides told me.

One of the group’s first broader policy demands was an ordinance requiring local police to issue citations for minor charges rather than the typical custom of hauling people off to jail over petty things like pot possession; while Texas law has allowed cities and counties to implement so-called cite-and-release policies since at least 2007, small-time marijuana possession remained the leading charge for arrest in Hays County for years. Activists called the policy a racial justice issue: Black people, who comprise about 5 percent of San Marcos’ population, accounted for nearly one third of low-level marijuana arrests in the city, and were almost always arrested over citation-eligible offenses. 

About a year after local activists started pushing for it, San Marcos became the first city in Texas to adopt an ordinance directing police to issue citations over making arrests for most low-level crimes with certain exceptions, like when someone is suspected of assault or family violence; larger cities nearby like San Antonio only managed to pass “resolutions” that simply suggested cops favor citations. The ordinance narrowly passed the city council over intense opposition from both the San Marcos Police Officers’ Association and the Combined Law Enforcement Associations of Texas, a statewide police union.

The local and state police unions haven’t taken a public position on this year’s referendum to decriminalize marijuana possession in San Marcos. But they have endorsed Puryear, the GOP nominee to replace Mau, the outgoing DA who has taken a notably hard stance on marijuana possession, even as state law made it increasingly difficult and costly to prosecute. 

Puryear, a former prosecutor and appeals court judge who didn’t respond to multiple interview requests for this story, has run in part on demonizing neighboring Travis County—which elected a reform-minded prosecutor who vowed to not prosecute drug possession in 2020. Travis is also home to the city of Austin, which voted to decriminalize small-time marijuana possession earlier this year. 

“Crime victims should know that we will doggedly pursue justice for them and criminals should know this isn’t Travis County,” Puryear wrote in one social media post soon after filing to run for DA. His campaign website states, “Dangerous ‘soft on crime’ policies have led to an exponential rise in robberies, sexual assaults, and murder in Austin and the surrounding counties.” (Data shows that violent offenses have increased statewide in Texas, as well as in counties around the nation irrespective of the politics of their lead prosecutors.) 

Puryear has also publicly criticized Higgins, his opponent, for promising to not prosecute abortion under the state’s new criminal ban, a stance that other Democratic prosecutors and DA candidates in Texas and across the country have taken following the U.S. Supreme Court’s Dobbs ruling this summer overturning abortion rights. “To pick and choose which laws you will obey and enforce as DA, based on your personal feelings, sets an example of lawlessness and opens the door to chaos,” Puryear wrote in another social media post. 

Puryear’s rhetoric against declination also clashes with another campaign promise from Higgins: The Democratic nominee has said he would decline to prosecute all cases of simple possession of cannabis, including THC oils and edibles that can still be charged as felonies in the state, and often still are in Hays County, despite any individual town’s efforts to decriminalize. Higgins, a longtime defense attorney in Central Texas, argues that the hardline stance on marijuana is a sign of deeper dysfunction at the DA’s office. 

“The general impression that you’ll find if you talk to everyone in the courthouse is that the DA’s office is sluggish and vicious—they will charge anything if they can possibly construe as a crime,” Higgins told me. 

“The goals there are not to pursue justice, which is the oath, but to train up your prosecutors to get them more trials, and to be more unreasonable in plea offers to drive cases to trial,” he said. “That includes cases that in no other county would get tried to a jury, like vape pen cases.”

But as much as Higgins’s approach to cannabis is clear (don’t prosecute it), his plans for a cite-and-divert policy in Hays County are more vague. Activists at Mano Amiga have advocated for pretrial diversion not just for misdemeanors but also possession of small amounts of other drugs that still carry felony charges. They want a policy that provides alternatives to plea deals, criminal convictions, and prison time for low-level crimes like substance use, and programs that steer people toward services and treatment instead of punishment. 

“If there is any district attorney out there who actually wants to bring about real community change, and they don’t want it to be a dog and pony show, then they would create a cite-and-divert program to address felony drug offenses,” Mano Amiga policy director Eric Martinez told me. 

When I asked what would be covered by his vision of a pre-charge diversion program, Higgins told me, “The general rubric of party drugs, Friday night, what’s in your blue jeans,” before quickly pivoting to concerns about fentanyl and drug trafficking. “The rise of fentanyl is inhibiting my ability to be very, you know, liberal about a cite-and-divert program,” he said. “I’m not worried about things like THC and things where fentanyl doesn’t appear.” 

Higgins admitted that his thinking on the issue had evolved while campaigning, crediting local activists with helping expand his idea of reform. “Talking with groups like Mano Amiga, and I mean specifically talking with Sam Benavides at Mano Amiga, I got a little educated about what cite-and-divert means, and it is pretty attractive to me,” Higgins said. 

He sounded more resolute when speaking at the group’s “Reeferendum Fest” the following day, including the same word—promise—that activists had put on a cake to mock the last DA for failing to deliver. 

Local activists have long pushed reform on another issue: They criticize the often yearslong pretrial detention of people in the county jail, and demand fair representation for people accused of crimes who can’t afford to hire their own defense attorney. 

The long ordeal of Cyrus Gray underscores the stakes. In 2018, Gray was one of two people arrested and charged with capital murder in the 2015 death of another Texas State University student. Because he couldn’t afford his own lawyer and Hays County didn’t have a public defender’s office to help indigent people accused of crimes, a judge appointed a private attorney to represent Gray, who has maintained his innocence since his arrest. 

Gray has been detained pretrial inside the Hays County jail ever since. He has had two court-appointed lawyers during his more than four years in pretrial detention—the first of which, according to Gray, hardly represented him. 

“He came to see me three times within two years, and every time came to see me he tried to convince me to take a plea deal for 45 years (in prison),” Gray told me in a phone call from the Hays County jail earlier this month. “I would express to him, ‘I didn’t do anything, why would I willingly take 45 years of my life in prison knowing I didn’t do anything?’ And then immediately he’d find an excuse to leave—so these conversations would be like 10 minutes long.” 

Gray’s prosecution, which has generated local controversy, ended in a mistrial last month when jurors remained deadlocked after three days of deliberations. One juror who favored acquittal has publicly criticized police and prosecutors for bringing a flawed case (as of this writing, Mau’s office has said it plans to retry Gray at the end of this month). 

“Witnesses were badgered and harassed on the stand in ways that felt far beyond even a confrontational cross-examination,” the juror, Melinda Rothouse, recently wrote in an essay published in the Texas Observer. “The accused man’s friends had been coerced, threatened, intimidated and treated as suspects themselves by investigators to the point that implicating the defendant seemed to offer their only way out from under the thumb of the system.” 

Others like Gray are also spending years in the Hays County jail without a trial, the Austin Chronicle reported last month. Gray says they also go months or even years without seeing their appointed defenders. The Chronicle also described dangerous and degrading conditions, including unchecked violence and poor medical care—problems that plague local jails across the state. 

In recent years, activists with Mano Amiga have rallied around Gray’s case to argue for the need for a local public defender’s office to improve representation and overall conditions in the legal system. After years of activists organizing around the issue, Hays County commissioners voted unanimously this past spring to allocate $5 million in federal stimulus funds to build a new public defender’s office, which has yet to launch. 

Along with monitoring the implementation of the nascent public defender’s office and rallying for marijuana decriminalization, activists with Mano Amiga are already planning for how future elections could reform local law enforcement. 

Last month, Mano Amiga activists began the process of gathering the signatures needed to put an item on the local ballot next year to overturn the contract that the San Marcos city council recently approved with the city’s police union. Activists, along with the life partner of a woman killed in a car crash with an off-duty deputy, had pushed for disciplinary and transparency reforms to the contract, none of which were included. The campaign to repeal the police union contract follows a similar effort by San Antonio activists to put an ordinance before voters to curtail police union power, a measure which narrowly lost last year. 

As Hays County has grown, it has also shifted blue. Biden carried the county in 2020 after six consecutive wins for GOP presidential candidates, though elections there remain competitive. 

To Benavides, the organizing behind this year’s ballot measures is larger than the individual issues at hand because of how activism has started to reorient power in Hays County. “For me it’s so much bigger than any policy itself, it’s about showing people the power that they have as a collective,” she told me.

Gathering signatures and organizing for reforms has also underscored the need for change. “Every time we knock on doors we hear from people saying how they’ve been abused or mistreated by law enforcement,” Benavides told me. She says Mano Amiga has started branching out to help organize and push for reforms in surrounding counties. 

“I feel like there isn’t enough emphasis on the organizing going on in rural communities,” she added. “There’s so much going on in San Antonio, so much going on in Austin, and our goal is to bridge that gap and help build a corridor of resistance.”

The post How Years of Organizing Put Drug Reform and Diversion on the Ballot in Central Texas appeared first on Bolts.

Last week, Garza’s office announced indictments against 19 Austin cops accused of assault and deadly conduct during the 2020 protests, including an officer who’s currently running for a Texas House seat. The indictments have rocked the local police department, and come on the heels of other charges Garza filed against law enforcement officers in his first year on the job.

The raft of indictments were also a reminder for Texas voters of the potential for DA elections to quickly change the landscape on policing and other criminal justice policies, just as early voting started for the state’s March 1 primary. Fifty districts are electing their next prosecutor across the state this year.

How these DA elections affect the criminal legal system in Texas will largely come down to races in four populous counties—Bexar (San Antonio), Dallas, Hays, and Tarrant (Fort Worth). In Bexar and Dallas counties, a pair of Democratic incumbents are seeking a second term after drawing conserative ire for reforms they’ve rolled out since winning in 2018. 

In Hays, a Republican incumbent is retiring after overseeing an explosion in the local jail’s population. In Tarrant County, the GOP’s last urban stronghold that has been drifting blue, a right-wing lawmaker notorious for pushing book bans looks to replace a retiring Republican DA whose selective enforcement of election laws led to lengthy prison sentences for Rosa Ortega and Crystal Mason—women who mistakenly thought they could vote, and whose convictions have been cheered by the Texas GOP in the party’s crusade against voter fraud. 

The results of these elections —in the March 1 primaries, May 24 primary runoffs, and November 8 general elections—could have profound consequences on local policies such as bail, the severity of sentences, the death penalty, and prosecutions that target reproductive and voting rights. 

Despite this critical role, more than three-quarters of the state’s 50 DA elections this year only drew one candidate by December’s major-party filing deadline—most of them incumbents. (See the full list of elections and candidates.) That trend holds in the state’s most populous counties with DA elections. Besides Bexar, Dallas, Hays, and Tarrant, only four other counties with at least 100,000 residents drew more than one candidate, and reform stakes are not at the forefront, at least not yet. The vast majority of smaller Texas counties with DA races are also uncontested. (Most Texas DAs are on the ballot in 2024 rather than 2022.)

There is plenty more to watch in Texas besides DAs this year. While the state will only have a handful of sheriff’s races, other local offices with great influence on the criminal legal system are on the ballot. A prosecutor is deploying a tough-on-crime message to unseat a Republican incumbent on the state’s Court of Criminal Appeals, for instance. And Austin has several referendums in May, including one to decriminalize marijuana possession.

To kick off our midterm coverage in Texas, below is a guide to the year’s DA elections.

1. A dual rematch in Dallas 

Dallas County’s DA election is a replay of 2018 in more than one sense. The same three candidates who ran four years ago have filed again. In the Democratic primary, former felony court judge Elizabeth Frizell will again face John Creuzot, the sitting DA who beat Frizell by a mere 589 votes in the 2018 primary. Just like four years ago, the winner will then face Republican Faith Johnson, who was the incumbent at the time. Johnson, who had gained national attention for actually trying killer cops for murder, then lost to Creuzot in the general election by a wide margin of 20 percentage points.

But the script has also partly flipped this time. In 2018, local reform advocates largely backed Frizell in the Democratic primary, but Creuzot deployed reforms after winning. He started refusing to prosecute certain drug cases and changed how it handles low-level theft, criminal trespass and other charges often associated with poverty. These changes triggered major attacks against Creuzot, from a police union calling for his removal to Republican Governor Greg Abbott accusing him of stoking crime. Ahead of next week’s primary, Frizell has echoed some of those same right-wing talking points, calling Creuzot’s reforms “dangerous.” Johnson, meanwhile, has overseen one of the nation’s largest and most-scandal plagued prisons systems since Abbott appointed her to the Texas Board of Criminal Justice after her 2018 loss.

2. A family rematch in San Antonio

Bexar County DA Joe Gonzales made jail diversion and other criminal justice reforms the focus of his winning campaign in 2018. But he said it was a personal threat from the county’s former DA that first inspired him to run. As a defense attorney before becoming San Antonio’s top prosecutor, Gonzales claimed that then-DA Nico LaHood threatened to destroy his law practice after Gonzales confronted him about withholding evidence in a case. Gonzales unseated LaHood in the Democratic primary and then won the general election that year, while LaHood eventually faced probation and a fine by the state bar.  

Nico LaHood’s younger brother, Marc LaHood, is now running to unseat Gonzales. He is one of two Republican candidates vying to face the incumbent DA in the general election (Gonzales is unopposed in the Democratic primary). In a statement to the San Antonio Express-News, Marc LaHood delivered standard tough-on-crime attacks, like accusing the incumbent of “severing ties with law enforcement agencies.” LaHood must first face former prosecutor and local defense lawyer Meredith Chacon in next week’s GOP primary, and Chacon has also played up her proximity to law enforcement, saying she would stop treating police “as the enemy.” Gonzales has drawn predictable hostility from the local police union since taking office and expanding diversion programs meant to prevent arrest and convictions for people accused of minor offenses, like misdemeanor marijuana possession.

3. A race to the right in Tarrant County

Local DAs who espouse baseless claims of widespread voter fraud have become key foot soldiers in the Texas GOP’s efforts to police the vote. And Tarrant County DA Sharen Wilson, a Republican who announced her retirement this year, has been a prime example of how prosecutorial discretion can turn mistakes into “voter fraud” convictions that GOP lawmakers wield to justify stricter laws. 

The GOP primary for Tarrant County DA could push the office even further to the right. Donald Trump has waded into the race to endorse Phil Sorrells, a judge and former prosecutor who vows to targeted undocumented immigrants as one of his main campaign issues. 

He faces state Rep. Matt Krause, a member of the chamber’s “Freedom Caucus,” which has successfully pushed for arch-conservative legislation like the state’s near total ban on abortions. Krause helped spark the book-banning hysteria that has gripped school districts across the state. And he backed legislation, passed by Republicans in 2021, that created new voting restrictions and criminal penalties around voting and election administration—a notable record for a prospective DA in the county where Ortega and Mason were prosecuted. Mollee Westfall, a current felony court judge, is also running in the GOP primary for DA. 

The winner will face one of three Democrats competing in next week’s primary. Tiffany Burks, a former deputy prosecutor under Wilson until last year, faces Albert Roberts, a former prosecutor in a neighboring county who came within 7 percentage points of unseating Wilson in the 2018 election. Former judge Larry Meyers has not run an active campaign, according to the Fort Worth Report. Tarrant County has trended blue in recent cycles, but Republicans continue to dominate local politics. 

4. Hays County candidate takes pride in never having been a prosecutor

The two candidates in the open election in Hays County, home to one of the state’s public universities and the fastest-growing county in the nation, could not have introduced themselves to voters more differently.

David Puryear, the only Republican, puts his work as a staff prosecutor in various offices front and center. Kelly Higgins, the only Democrat, is a defense attorney who does the opposite. “I submit that not having been a prosecutor is, in this county at this time, a blessing,” Higgins writes on his website. “I’ve always been the guy who insists on the protection of the Constitution.” 

Higgins vows to bring a “sea change” and “progressive vision” to the DA’s office and faults the retiring DA, Republican Wes Mau, for leaving cases to drag pretrial. The number of people detained pretrial in Hays has more than doubled since Mau became DA in 2015, according to data supplied by the county. 

Higgins told Bolts that, to reduce the volume of criminal cases and trials, he would seek to grow the availability of diversion programs and review the legal basis for arrests and charges more rigorously; this is to stop what he describes as the cynical prosecution of cases “based on the calculation that there is enough evidence to proceed.” Higgins also said he would consult reformers elsewhere in Texas, noting that “Travis and Bexar Counties have elected progressive DAs.”

Higgins and Puryear, who did not reply to a request for comment on his own platform, will face each other in November.

5. Heated primaries in McLennan, Hidalgo counties 

Only four other Texas counties with a population of at least 100,000 have contested DA races, and at this point in the campaign none of them are defined by major contrasts on criminal justice policy. It is still very early in Galveston County, which won’t see a contested race until the general election. 

But in Kaufman, Hidalgo, and McLennan counties, primaries will likely decide the next DA. That may explain the acrimony unfolding in some of those races.

McLennan County DA Barry Johnson faces challenger John Tetens in the Republican primary, with both ratcheting up fearmongering rhetoric about crime. Tetens has support from local police associations and promises to pursue harsher punishments. Johnson has responded to the criticism in unusually strong terms. 

“There is always an element of law enforcement that wants a rubber stamp in the DA’s office, and I am not going to do that,” Johnson told the Waco Tribune-Herald. But he has also turned to one of the uglier staples of “tough-on-crime” campaigning: attacking Tetens over his work as a criminal defense attorney, which Johnson says has contributed to putting “criminals back on the streets of McLennan County, where they can continue to prey on you and your family.” The GOP nominee will face Democrat Audrey Robertson in this conservative-leaning county.

Another DA candidate is attacking an opponent’s defense work in Hidalgo County, where Democratic DA Ricardo Rodriguez is retiring. One of the Democrats looking to replace him, Nereida Lopez-Singleterry, has blamed rival Toribio Terry Palacios for securing plea deals for his clients as a defense attorney. Palacios has also questioned his opponent’s ethics. Neither replied to Bolts’s questions about their policy platforms or their dispute. The winner of this Democratic primary will then face Republican Juan Tijerina; Hidalgo is a blue county, but Republicans are hoping to make gains in South Texas this year.

In Kaufman County, finally, the only challenger to Republican incumbent Erleigh Norville Wiley is Republican Rob Farquharson, who is emphasizing a traditionally tough-on-crime platform.

6. Most still run unopposed

In much of the state, there will be DA elections on the ballot but no contested races. Of the 50 districts with DA elections this year, 38 of them drew only one candidate, according to a Bolts analysis.That means 76 percent of the state’s DA elections are uncontested in 2022, the exact same rate as in 2020, when there were many more prosecutorial elections.

In 13 counties with at least 100,000 residents, only one candidate filed to run. Incumbents are completely unopposed in Brazoria, Comal, Collin, Denton, Fort Bend, Lubbock, Randall, Rockwall, Smith, Taylor, and Wichita. In Gregg and Jefferson counties, candidates who aren’t even incumbents effectively won just by filing to run, though John Moore and Keith Giblin have each worked for their respective DA offices in the past. (All of these unopposed candidates are Republicans other than in Fort Bend.)  

These counties have a combined population of 4 million. Some are undergoing massive upheavals—Denton, for instance, swung toward Democrats by a net 24 percentage points between the presidential elections of 2012 and 2020.  Public scandals around the criminal legal systems have swirled in other counties with uncontested DAs. But voters in these places won’t get a chance to weigh in on an office that largely drives criminal justice policy for another four years.

The post The DA Elections That Will Shape Prosecution in Texas This Year appeared first on Bolts.