This week, the Travis County and District Attorneys Delia and Jose Garza took to tag-team letter-writing [CA letter, DA letter] to deflect blame for the fallout of their “early-review” policies of blocking hundreds of arrests on Austin police officers. As the recent Proposition B landslide indicates, Austin residents value an orderly and safe city. But as Austinites find out the hard way that the Garza’s policies effectively prevent APD from arresting scofflaws from selling drugs in front of their businesses or repeatedly trespassing and harassing their customers, those Austinites have gotten frustrated and noisy.
After the frustration spilled into public discourse, the Garzas, following well-established local politician tradition, looked for a little guy to redirect public frustration and anger towards and threw the blame at front-line cops.
The root of the issue here is quite simple, and I’ll explain it in this article. Plus, this topic is a good discussion on the role various criminal justice system stakeholders should play in ensuring a fair system. Equally important is the limitations those stakeholders should abide by.
So let’s break down this topic in simple terms and get to the root of the Garzas-APD dispute.
Both the judge and the prosecutor
When a police officer arrests a person, the very next thing the Texas Code of Criminal Procedure (CCP 14.06) directs that officer to do is take the arrested person before a county magistrate (a judge). It’s the magistrate’s job to determine whether probable causes (PC) exists for the officer to make the arrest. If not, the person is immediately released. This process distills down solely to determining whether a person has violated a law, regardless of any considerations outside of the law. Nowhere in this procedure are the political whims of a county’s elected attorneys or other factors mentioned or considered. It’s simply “is there PC to believe this person commit an offense?”
An arrest requires probable cause, which is outlined in the Fourth Amendment of the US Constitution. The arrest affidavits typically do not include the totality of evidence, facts, or conclusions of a criminal investigation, which may span upwards of dozens or hundreds of pages of information. That comes into play at trial, where proof beyond a reasonable doubt is required, and officers consider whether they can meet that burden when deciding whether or not to make an arrest.
Having arrest affidavits signed by a magistrate creates a system of accountability. The affidavits are public documents and explain to the public why an officer deprived someone of their liberty. The affidavits are a mechanism for the public to evaluate a police department’s performance and adherence to the law regardless of their policies or personal beliefs.
Prior to the election of the Garzas, officers would immediately bring arrestees to City of Austin Municipal Court judges who were in contract with Travis County to perform magistration duties at the Travis County Jail. Officers’ arrest affidavits were presented to those judges to fulfill the CCP requirement. This process was governed by the Interlocal Cooperation Agreement between Travis County and the City of Austin for Booking and Related Services (see section 8.1 Judicial Administration).
When the Garzas ran for office, they pledged to reduce the jail population and prioritize violent crime. After getting elected, one path they took to fulfill this campaign promise was to insert themselves in between the officer who made an arrest and the magistrate they would present an arrest affidavit to. On March 1, 2021, Delia Garza’s implemented this policy of “early case review” for misdemeanors, followed by the DA’s office on April 1, 2021 for felony cases.
According to Assistant City Manager Ray Arellano’s March 8, 2021 letter, this policy was “implemented without any consultation with the Austin Police Department or City management… The Interlocal Agreement does not require all PC affidavits to be held by TCSO before being presented to a magistrate, nor does it contemplate that prosecutors will review and reject PC affidavits prior to magistration… I also believe that these changes undermine the ability of APD (or TCSO officers who have custody of the arrestee) to fulfill their obligations under Article 14.06 of the Code of Criminal Procedure.”
While the legality of this skip-a-judge program is being reviewed by the Texas Attorney General, officers who have made an arrest still must submit arrest affidavits to on-call or duty Assistant County (ACA) or Assistant District Attorneys (ADA) prior to a magistrate reviewing the affidavit, if an ACA or ADA is on-duty, lest they be told by the Municipal Court magistrate to go get permission from an ACA or ADA. If the ACA or ADA doesn’t accept the affidavit, the arrestee is released and never sees a magistrate. If the ACA or ADA accepts the charge, they give the officer a form letter saying that their office believes the charge should be filed. The officer then gives the form letter plus the affidavit to the magistrate, and the magistrate effectively rubber-stamps the ACA or ADA’s decision.
Why do I say “effectively rubber-stamps?” I asked a Municipal Court judge what would happen if the ACA or ADA and the officer disagreed about whether probable cause existed for the arrest. Would the officer bring the affidavit to the judge for resolution? The judge simply said he didn’t know. From his answer, one could reasonably conclude that the judges are not overriding ACA or ADA’s decisions. This seems further backed up by KVUE and PJ Media reports that a standing order exists for Municipal Court judges to abide by an ACA and ADA’s decision. If so, then Municipal Court magistrates have made themselves (in terms of magistration duties) as useless as pickles on a Chick-Fil-A sandwich by surrendering their duties to prosecutors.
Any fan of civil liberties should see the problems with this Judge Dredd-looking precedent. Travis County’s magistrates may hand over their duties to prosecutors under some noble hope for better criminal justice outcomes, but there are plenty other counties in Texas where elected prosecutors would be equally likely to tip the magistration scales in the opposite direction, against fairness and due process, collecting more cases, indictments, plea deals, and convictions.
And on the light-handed flip side, there are prosecutors who have an undue amount of sympathy for suspects of crimes and refuse to prosecute deserving cases. I personally saw Houston PD officers go to a call in which an elderly man in a wheelchair had been struck in the head by a beer bottle swung at him by a younger man after a dispute. The elderly man’s head was still bleeding as EMS bandaged him, broken glass was all around him, and the elderly man and witnesses identified the assailant, who was still standing nearby. The Houston officers called the DA’s office but were told that the DA would not accept felony charges for injury to an elderly person. The officers had no other action they could take other to tell the dazed and bloodied man “sorry, but we can’t do anything – our hands are tied,” and simply left.
But that’s a story for a different article. Let’s get back to this one.
The Garzas’ policies in action
So how does the CA and DA usurping judicial duties come into play in this saga? When you are both the magistrate and the prosecutor, the initial enforcement of the Texas penal code laws are effectively replaced by the policies of the County or District Attorney. If you don’t want certain laws enforced, simply have a policy that arrestees of that offense will immediately have their charges dropped, the arrestee will be released, the officer’s arrest affidavit shredded, and the case will never even see a judge. One example of this is Jose Garza’s policy of rejecting drug possession or sale charges. There’s no surprise here; it says so in plain language on the DA’s website (see Case Guidelines):
What about more serious crimes like aggravated assault with a deadly weapon? If you want to lessen the future employment prospects of would-be murderers who came up a nicked-artery short, simply make a policy of charging them with a lesser crime. Take the example of the July 2019 shooting case of Reginald Thomas.
A bystander recorded Thomas (at the start of the above video) repeatedly shooting a woman in downtown Austin, taking a break to clear a malfunction with his gun, and then shooting her again. But was he charged with aggravated assault? Here’s the DA’s policy on aggravated assault with deadly weapon policies.
Despite the video evidence, Thomas was not charged with aggravated assault with a deadly weapon, a lesser deadly conduct charge, or any violent charge whatsoever. He pled to a non-violent felon in possession of a firearm charge, sentenced to four years, and (according to the TDCJ) has been eligible for parole since January 16, 2020 (yes, your math is right – that’s six months after the shooting).
What if you want to reject trespassing charges against people who repeatedly disrupt businesses and harass customers but still want to blame any public outcry for that policy on someone else? Easy – simply operate by unwritten policy. How can a patrol officer deduce what the County Attorneys’ policies are if they are not written? Simply look at the results of their decisions.
As the KVUE Defenders reported, Delia Garza’s office has been rejecting trespassing charges in massive numbers. KVUE pointed out that Garza rejected at least 283 criminal trespassing charges between March 1 and June 30 of 2021.
The County Attorneys Office website and social media post no information about why the office rejects so many cases or what their policy is. The press release section only has one press release from March of 2021. Given that the office rejected so many trespassing arrests, there is definitely a policy – it’s just not being publicized.
Mind you, trespassing is not a complicated offense to articulate or prove. If a cop is on body camera footage (all APD officers wear body cameras) giving notice to someone to leave and that they will be arrested if they return to a property, and then that person returns to the property and is shown on body camera footage doing just that, what more proof does a county attorney need to prove beyond a reasonable doubt to a jury that the person committed the offense?
The Garzas’ complaints against APD
The letters written by the Garzas criticize APD officers for ”inaccurately characterizing” the policies of their offices to 911 callers, telling 911 callers that people cannot be arrested for certain offenses due to the Garzas’ policies, and declining to investigate or being prevented from investigating criminal activity due to the Garzas’ policies.
The Garzas pointed out that they had no policy preventing officers from taking action and that they will “prosecute any alleged crime that poses a threat to public safety.” The Garzas explained that prosecutors will “review every arrest on a case-by-case basis and decide whether to prosecute on a the facts and evidence presented.”
As a matter of specifics, Jose Garza lists two vague examples of officers allegedly not investigating or acting on a report of crime. One was an unspecified crime reported by a business owner. The second was a Next-door complaint that an officer declined to investigate a man exposing himself to children.
It’s unclear what the complaint by the business owner was, so it’s impossible to discuss this example. Was the second example of the man exposing himself a person urinating in bushes who had left the area and could no longer be located by officers? Again, there’s not enough information provided to discuss this second example.
How the Garzas’ policies affect APD operations
The Garzas’ letters argue that their policies should have no impact on police activities. This premise is deliberately naive at best. The policies not only have immediate consequences [complete inability to even book an arrestee into jail for certain situations of criminal activity], but also downstream secondary consequences [officers do not spend time investigating that particular situation of criminal activity] and tertiary consequences [Dispatch no longer sends officers to those certain situations but directs 911 callers to make a 311 report].
Because the Garzas’ policies range from vague (what does any given ACA or ADA define as a threat to public safety?) to non-existent (why does Delia Garza’s office reject so many trespassing cases?), APD officers rely on the precedent of hundreds of instances in which the Attorneys rejected their arrests to shape their decisions about how to navigate the Garzas’ policies. This is similar to the use of case law to determine whether particular circumstances constitute an offense when the wording of a law is vague.
There are only around 600 patrol officers at APD and a growing number of vacancies, so the lessons learned from five months of the Garzas’ early review policy and hundreds of rejected arrests and are continually taken into consideration and implemented as understood policy by officers. The County and District Attorneys’ actions create policy, whether it’s written, unwritten, or merely shaped over time by the ongoing rejections of arrest affidavits.
Given that the County Attorneys Office rejected about two trespassing arrests per day from March to June, it would make sense for patrol supervisors to direct their officers to stop making trespassing arrests if the jail is only going to reject arrestees and make officers (who are already short-staffed) waste time unwinding the logistics of arrest. This inability to enforce the law is the root of Austinites’ frustration.
Why yes, Austinites do deserve to be informed of the Garzas’ policies
When officers talk with a 911 caller, and the complainant describes a criminal offense that the officer knows through experience will be rejected at magistration by the Garzas, it is certainly the proper thing to do to take the time and explain to the complainant why the officer will not take action. The caller knows a crime was committed and deserves an explanation for any inaction by their government officials. After all, protecting the public is any government’s primary function.
There is simply no other way to explain to a complainant why an officer won’t enforce a drug or trespassing offense than to say because the Garzas will reject the charge at magistration and the jail won’t accept the arrestee. If asked why that matters, officer should explain that there is no benefit, only risk, to that course of action. For example, the suspect may fight with officers and cause injuries or the officer gets in a crash while driving a handcuffed arrestee to the jail.
Why would any sensible officer knowingly arrest a person for an offense the officer knows by repeat experiences that the Garzas will reject the arrest at magistration? Imagine being on the wrong side of a civil lawsuit deposition and being asked, “If you knew the charge would be rejected, why did you put my client in your patrol car and get him needlessly injured in a collision? That seems deliberately indifferent and negligent to his safety, wouldn’t you agree?”
The Garzas’ policies are their responsibility
The public receives no benefit from the Garzas blaming the consequences of their policies on the police. If the Garzas want more consistency with the messaging police provide to the public about why certain situations of offenses will not be enforced, then the Garzas should directly explain their policies to the public, especially Austin business owners.
The Garzas should further provide written notes or talking points to APD patrol officers. Officers could then provide more thorough information about the issue with people who report crimes and why officers’ response may differ from what the complainant expects.
Leadership involves taking responsibility for one’s actions as well as their consequences, and that is the only solution for the Garzas.
On what authority did the Travis judges issue standing orders directing compliance with DA & CA policies?
I couldn’t find the original document where the judges issued that order (or perhaps memorandum of understanding or agreement?). If I find it after while I’ll send it your way.
What do our city leaders, (mayor, manager, and council), have to say about this? Are they not in charge of the APD as well as public safety?