Editor’s Note: This story has been updated as of 11:30 a.m. on Wednesday, Sept. 13, to include additional information.
According to Hays County court records, on Tuesday, Sept. 12, Hays County District Clerk Avrey Anderson Sr. filed a petition to remove Hays County District Attorney Kelly Higgins from office pursuant to Chapter 87 of the Local Government Code.
“Under Texas law, a Texas criminal district attorney or district attorney is responsible for representing the state in all criminal
Hays County District Clerk Avrey Anderson Sr.[/caption]
cases in the district courts of his/her district and appeals therefrom,” the Petition to Remove Hays County Criminal District Attorney from Office and Jury Demand stated, citing House Bill 17 — legislation passed by the state which would allow the courts to remove district attorney for misconduct if they choose not to pursue certain types of crimes. H.B. 17 went into effect on Sept. 1.
The petition alleged that Higgins has implemented and executed a policy or policies refusing to prosecute a class or type of criminal offense under state law, including the following:
- “Kelly Higgins has made a public declaration that he will not prosecute simple drug possession offenses and that he would divert resources in the prosecution thereof.”
- “Kelly Higgins has made a public declaration that he will not prosecute simple cannabis possession offenses.”
- “Kelly Higgins has made a public declaration that he will not prosecute illegal procedures committed by a licensed physician in the case that they are illegally treating transgenders.”
- “Kelly Higgins has made a public declaration that he will not prosecute illegal procedures committed by a licensed physician in the case that they are performing unlawful abortions (technically murder) under the law.”
The petition also stated that an excessive amount of felony possession of cannabis, methamphetamine and cocaine cases are being declined for random and nonspecific reasons.
“His conduct demonstrates not only an intentional corrupt failure, refusal and neglect of duties imposed on the officer in his official capacity by law, but his conduct also demonstrates an adoption or enforcement of a policy of refusing to prosecute a class or type of criminal offense under state law,” the petition read. “Allowing him to continue as district attorney undermines the very laws of our state that he swore to uphold. These same laws were laws that he was charged to defend and instead, he abused his official capacity to counteract our legislature, thus, undermining our process itself.”
Finally, the petition alleged that his “official misconduct clearly disqualifies him from continuing in his election positions” and that Higgins has “demonstrated that he should be removed from the office to which he was elected.”
As required by the Texas Local Government Code, a jury trial was demanded by the petition.
Regarding the petition, Anderson said, “Officers under the Texas constitution must take an oath to uphold the constitution and laws of this state and the United States of America … Prosecutors are not permitted to create policies within their office to not prosecute classes of crime that they disagree with.”
At this time, Higgins has not responded to requests for comment.
