Editor’s Note: This story has been updated on Monday, Sept. 18, to include additional information.
Hays County District Clerk Avrey Anderson Sr.[/caption]
SAN MARCOS — According to court records, Hays County District Clerk Avrey Anderson Sr. filed a second amended document of his petition to "Remove Hays County Criminal District Attorney from Office and Jury Demand" on Sept. 18. The first amended petition was filed on Sept. 14.
Originally filed with the District Clerk’s Office on Sept. 12, the petition to remove Hays County District Attorney Kelly Higgins is 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 cases in the district courts of his/her district and appeals therefrom,” the petition stated, citing House Bill 17 — legislation passed by the state which would allow the courts to remove district attorneys 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. He made these declarations on his website in 2022 and has talked about it throughout campaigning in 2022. To this date of Sept. 18, 2023, the public declaration remains on Kelly Higgins’ website.”
• “Kelly Higgins has made a public declaration that he will not prosecute simple cannabis possession offenses. He made these declarations on his website in 2022 and has talked about it throughout campaigning in 2022. To this date of Sept. 18, 2023, the public declaration remains on Kelly Higgins’ website.”
The changes from the original petition include the removal of two accusations:
• “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.”
“I am a Democrat and I do not believe in the criminalization of abortion or transgender medical care,” Anderson stated in a response to questions from the Hays Free Press regarding the removed accusations. “I do not believe in criminalizing marijuana either, but I'm leaving it as a charge for its relation to general possession cases.”
Hays County District Attorney Kelly Higgins[/caption]
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 after the law went into effect on Sept. 1, between Sept. 6 and 11.
“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 original 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 original 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 also demanded.
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.”
After multiple attempts to reach out to the district attorney by the Hays Free Press, Higgins responded with the following statement: “I cannot at the present time make any statements in relation to the recently filed petition to remove me as DA. I can state that this office does not have, and has never had, any policy regarding disposition of cases by type or class.”
This is an ongoing story. The Hays Free Press/News-Dispatch will continue to provide updates as more information becomes available.
District clerk files amended petition to remove Hays County district attorney
Editor’s Note: This story has been updated on Monday, Sept. 18, to include additional information.
- 09/20/2023 08:00 PM
