Removal Proceeding Hangs Over Liberal Texas DA’s Re-election Bid

A yearslong effort to remove Austin’s district attorney was expected to come to an unsuccessful end in a Texas courtroom, months before his potential reelection.

Instead, Judge Dib Waldrip (R) caught the parties by surprise and announced he wasn’t dismissing claims alleging Travis County DA José Garza (D) violated a new state law by refusing to prosecute certain crimes. Waldrip had been too busy to review dozens of filings submitted in the four months since the case began, he said at the Aug. 30 hearing, and kicked the case to the end of the year.

The punt bounced the case to after the first Tuesday in November, the date when voters will decide whether they want Garza to keep his job for another four years. Garza is heavily favored in Travis County, which includes the state’s most liberal big city, Austin. But Waldrip’s delay means the possibility to remove Garza remains open after he is potentially reelected.

In an interview on Oct. 22, Waldrip said his decision to delay the hearing wasn’t political. He didn’t even know Garza was on the ballot this year, he said.

“I hadn’t even looked,” Waldrip said. “To that degree, no, it’s not political.”

The public is entitled to a full blown hearing where prosecutors are “on stage, under the spotlight,” proving up reasons for the dismissal, Waldrip said.

“I think that the public deserves as much transparency as possible, so that’s why I wanted to set it for a hearing,” Waldrip said.

“But I just haven’t personally had the time to do it here in the fall.”

Hard to Prove

The short hearing this summer was the second time Waldrip could have freed Garza from the threat of removal and declined.

In June, the special prosecutor Waldrip assigned to the case said he looked into allegations that Garza wasn’t prosecuting drug and abortion crimes and found them to be without merit. But Waldrip said he needed more convincing, saying the prosecutor’s filing lacked evidence to support the dismissal.

Garza, a rising star in the Texas Democratic party, is seeking a second term. Running for the first time in 2020, he routed his Republican challenger, earning 70% of the vote. He declined to comment about the delay in the removal proceeding. He previously said those seeking his removal are “wasting taxpayer money trying to undermine the decision of the voters of Travis County.”

His Republican opponent in the election, Austin defense lawyer Daniel Betts, said he’s surprised Waldrip hasn’t dismissed the case.

“I am a little befuddled myself over why it continues to be pending,” Betts said.

Texas judges broadly are prohibited from delaying the outcome of a case for political reasons.

A judge must perform their duties without bias or prejudice, according to state rules that govern judicial conduct. They also must not allow any relationship to influence their conduct or judgment.

Jacqueline Habersham, executive director of Texas’s State Commission on Judicial Conduct noted that the commission’s rules don’t specify how quickly a judge must move on a case.

“You have to prove that this was politics and that’s kind of hard to prove,” she said.

Law Targeting Prosecutors

Texas Republicans are after Garza’s job under H.B. 17, a law backed by Gov. Greg Abbott (R) targeting progressive prosecutors perceived to be light on crime. Garza is the only prosecutor to have faced a removal petition since the law went into effect in September 2023.

Under the law, residents can initiate removal proceedings against a district attorney or county attorney who adopts or enforces a policy of refusing to prosecute a class or type of criminal offense.

After an effort to remove Garza last year failed because the petitioner had a pending criminal case in Garza’s office, this nearly identical complaint followed in April.

Garza had just come off a primary victory over a well-funded Democratic challenger supported by conservatives.

Waldrip, as the presiding judge in Austin’s region, got to select the judge to hear the complaint. He chose himself. For special prosecutor, he tapped James Nichols, the Republican county attorney in Bell County.

Nichols’ investigation found that Garza fully complies with the 2023 state law. Nichols however may not be prosecuting the case for much longer. The woman who initiated the petition to remove Garza has asked the court to assign a new prosecutor, claiming Nichols won’t return her calls and that he ignored evidence that will strengthen the case against Garza.

Nichols didn’t respond to a request for comment.

Waldrip hasn’t decided if the woman, Betsy Dupuis, has standing to request a new prosecutor. At the August status conference, he said he hadn’t researched the law.

That conference ended with Waldrip saying he’d like to hold a full hearing by the end of the year. Days prior to the election, he still hadn’t scheduled one.

Waldrip, an Abbott appointee, is also up for re-election on Tuesday. He is running unopposed.

Garza is represented by Miller & Chevalier and Graves Dougherty Hearon & Moody.

The case is Dupuis v. Garza, Tex. Dist. Ct., No. D-1-GN-24-002191.