The Bexar County District Attorney’s Office will hire a law firm to explore the possibility of challenging Attorney General Ken Paxton’s proposed rule requiring reporting on certain criminal cases from large counties in Texas.
The rule would require some district attorneys to provide extensive case files — including text messages and other communications — regarding thousands of criminal cases to Paxton’s office. Such a requirement does not currently exist.
Paxton, a Republican, has said the new rule will “promote accountability and rule of law” by shedding light on how district attorneys handle certain cases, but District Attorney Joe Gonzales, said the rule is politically motivated and another attempt to get Democratic district attorneys like himself removed from office.
“This is nothing more than a power grab by the Attorney General,” Gonzales told the San Antonio Report.
Bexar County Commissioners Court on Tuesday authorized up to $50,000 for Gonzales to hire Washington, D.C.-based firm Miller & Chevalier, which Dallas County has also hired to potentially challenge the proposed rule, said Pete Gallego, director of communications for the district attorney’s office.
“Under the state constitution, the state’s civil authority is vested in the attorney general [while] criminal authority is specifically designated for district attorneys,” said Gallego, a former Texas representative and U.S. congressman. “There’s a very real separation-of-powers argument to be made.”
Because these kinds of arguments “are rare and they require a certain specialty,” the district attorney needs outside legal counsel, he said.
If Gonzales decides to challenge Paxton’s rule “we would be looking to do this jointly” with Dallas, Gallego said.
According to a letter the district attorney sent Paxton, staff has estimated that it would cost millions of dollars to comply with the rule as proposed and obstruct the office’s ability to prosecute cases.
The Attorney General’s Office did not respond to a request for comment Tuesday.
It’s unclear if a public meeting regarding the new rules was requested or will be held, but such a request would delay implementation, Gallego said.
What the rule says
The proposed rule requires certain district attorneys to provide quarterly reports including comprehensive documentation regarding indictments of police officers and poll watchers, parole, pardons, decisions not to indict someone for violent crimes, communications with nonprofits regarding indictments and certain resignations from district attorney offices.
An additional annual report would be required to outline any policy changes and financial accounting.
The rule would apply to counties with populations larger than 250,000. That’s about 22 counties in Texas, including traditionally Democratic, urban counties like Harris, Dallas, Bexar and Travis counties, as well as some smaller counties whose district attorneys are typically Republican, such as Galveston and Lubbock counties.
“These enhanced reporting standards will create much-needed transparency and enable the public to hold their elected officials accountable,” Paxton said in a press release announcing the proposed rule last month.
One of Gonzales’ many concerns about the proposed rule is where this information — which may contain sensitive information about victims of crime — may ultimately end up.
“We don’t have any way of stopping [Paxton’s] release of that information to anybody that requests it from him, including for purposes that may not appropriate [or] political purposes,” Gonzales said.
And that also is where the motivation for this rule lies, he said. Paxton wants to give his political allies “ammunition” to file a petition for removal against progressive or so-called “rogue” district attorneys, he added. The rule also allows the Office of the Attorney General to file a petition.
But House Bill 17, which was passed last year, already provides a path to remove district attorneys who refuse to prosecute certain crimes, Gonzales noted. That law was triggered by an announcement by Gonzales and four other district attorneys that they didn’t plan on prosecuting abortions after Roe v. Wade was overturned.
“The type of concerns [Paxton] may have had a year ago no longer exist — but that doesn’t mean that people can’t still attempt to look for ways to remove prosecutors,” he said.
Beyond the political motivations, logistically, there is “no way” Bexar County can comply with the rule as proposed, he said, estimating about 50,000 cases meet the criteria for reporting.
“It would cost Bexar County millions of dollars to copy and transmit the volume of files and communications that our office would have to turn over to comply with this rule,” Christian Henricksen, first assistant district attorney, wrote in the letter to Paxton. “In addition to the costs, the time that our prosecutors and staff would need to commit to comply with this rule would dramatically take away from the time currently spent prosecuting cases. This would not only delay cases where victims of crime are waiting for justice, but also would impact the quality of the work done by prosecutors and staff.”
