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 not zealously pursue criminal cases against women who seek abortions or families who obtain gender-affirming health care for their children. Those declarations have, in turn, led conservative lawmakers in Austin to file several bills seeking to curb the power of DAs.
“There is an interesting philosophical debate about where power should rest in a state-local system,” said 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.”
Similar power struggles are playing out all over the country.
In Mississippi, Republican state lawmakers have proposed installing a separate court system and police force for a portion of the City of Jackson, which is 83% percent Black and is controlled by Democrats. Illinois Gov. J.B. 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 Texas officials are not only jousting over prosecutorial discretion. The highest civil court in Texas will soon hear a case dating back to the COVID-19 pandemic about who has the power to require masks.
How this case plays out — as well as the broader debate over local control — may determine to what extent conservative officials across the Lone Star State can dictate the health, environmental, and law enforcement policies for cities, counties, and school districts.
“In states where Republicans control state government, it’s a way to try to control cities that they wouldn’t otherwise politically control,” said Patrick Flavin, a professor at Baylor University.
The mask wars
Former Tarrant County Judge Glen Whitley, a Republican, is not a zealous advocate for big government.
And yet in the midst of the COVID-19 pandemic, when he was leader of Texas’ third most-populated county, Whitley wanted the ability to tell people to mask up in large gatherings.
“That would’ve been a setting where I might have liked to have been able to say, fine with having a meeting, fine with getting together, but you’re going to need to wear masks,” Whitley said.
Masking and vaccines — both seen as powerful tools to reduce the spread of the virus — became flash points between the state and local governments. Some county sheriffs refused to enforce a mask mandate from Texas Gov. Greg Abbott early in the pandemic. The next year, after he repealed his own mandate, Abbott went a step further and banned any local official from imposing one, aside from inside health care facilities and jails.
“Once the response in terms of mask mandates, vaccine mandates became polarized or politicized, it was just an extension of state officials that wanted to stop local governments,” Flavin said.
Before the pandemic, the state exerted control over localities by passing laws “preempting” local ones. Examples include a 2015 law that forbade the City of Denton and others from regulating oil and gas operations within their borders. State law also prevents cities from raising the minimum wage for private sector employees beyond $7.25 per hour.
Abbott’s executive order in 2021 banning mask mandates was “sort of a different way to use the tool of preemption,” Flavin said.
Local entities pushed back. The City of San Antonio and others sued the state over Abbott’s mask mandate ban. On Wednesday the state’s highest court will hear an appeal in that case and two related ones from Dallas and Harris Counties.
The outcome will hinge on the justices’ interpretation of Texas’ disaster law.
Abbott’s attorneys argued in court filings that the law gives the governor broad authority to make declarations, and “local officials may act only as the Governor’s agents” during disasters.
Lawyers for San Antonio, on the other hand, say the law “grants specific roles for local governments in taking measures in the event of a disaster” and does not give the governor absolute power.
A new front
While the mask mandate fight nears its conclusion in the Texas Supreme Court, another state-local clash is building. It centers on the power of county criminal district attorneys to decide which cases to pursue.
Few Republican officials would deny that prosecutors are constantly making judgement calls when they choose which cases to pursue. Discretion is part of the job, as it is for police officers, sheriffs, and other law enforcement officials.
But a group of DAs announced last year they wouldn’t prioritize cases against abortion providers or families who pursue gender-affirming care for their transgender children. The group includes DAs in Dallas, Bexar, Travis, Nueces, and Fort Bend Counties.
Republican lawmakers like Mansfield’s David Cook and Plano’s Jeff Leach have filed bills to reign in locally elected prosecutors. Cook’s would ban prosecutors from adopting or enforcing a policy curbing enforcement of any criminal offense. It would permit financial penalties against the prosecutor and establish a process for the Texas attorney general to try to remove the DA from office.
“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 said. “If you’re making blanket statements and giving blanket immunity, then you’re not doing your job.”
The sheriffs who announced they would not enforce Gov. Abbott’s mask order, like DAs, do not have the resources to go after every lawbreaker. The difference is that the sheriffs did not see a serious push to limit their authority.
Cook said it was possible other elected officials beyond DAs could make “the same mistake,” and he would be open to a similar bill the reign in sheriffs.
“I have not filed a bill in that regard, but I certainly would not rule it out,” Cook said.
Bills targeting sheriffs who defy state authority seem unlikely, Texas Christian University political science professor Emily Farris said.
“In Texas, where you have a conservative Legislature and conservative sheriffs, they’re going to be less likely to oppose each other,” she said.
Dallas County District Attorney John Creuzot is not commenting on the proposed bills. He told WFAA in October he would take a case-by-case approach to abortion. He said he would continue to not pursue most cases of first-time marijuana possession less than four ounces.
“The district attorney gets elected to make decisions about what he or she can prosecute and prosecute successfully,” said Dallas County Commissioner John Wiley Price. “They have finite resources.”
Another symptom of the system
There is a wealth of systemic factors contributing to the showdown over the discretion of locally elected DAs. Not least is the fact that, as Bowman puts it, counties are “generally considered administrative arms of state government, sort of historically.”
States are “basically in charge,” she said.
Yet Bowman said partisan redistricting, or gerrymandering, by the Legislature means the conservatives that hold power “have a way of perpetuating” their control.
Whitley was not necessarily against the bills aimed at local DAs. When it comes to the criminal justice system, he said we should “try to be pretty consistent.”
But he also said the attempts of state actors to control localities have “gotten terribly more” in recent years. He blames Lt. Gov. Dan Patrick and the influence of ultra-conservative billionaires Tim Dunn, Farris Wilks, and Dan Wilks.
“It’s much easier to get what they want if they’re only having to deal with 150 state reps, 31 state senators, a governor and a lieutenant governor,” Whitley said. At the local level, there are “thousands of city councils, thousands of school boards and thousands of county officials.”
Whitley also noted that a very low percentage of Texas voters cast votes in political primaries. In Republican-controlled Texas, the person who wins the primary is usually the person who assumes office.
Of more than 19 million citizens of voting age in Texas, less than two million voted in the 2022 GOP primary.
Flavin added a third structural ingredient to the mix: an intensifying, geographical concentration of political views. Democrats govern large cities and Republicans dominate in rural areas.
All those structural factors have contributed to Republican domination of the Texas Legislature. They simply have the numbers to pass almost any law they can agree on as a majority.
And DAs across the state are watching.
“For now, what we can tell you with certainty is that many members of the legislature are serious about this issue,” the Texas District & County Attorneys Association told members in a legislative update posted online. “It deserves your full attention.”