District clerk requests to drop suit removing DA Higgins responds to allegations, files counterclaim

SAN MARCOS — Hays County District Attorney Kelly Higgins filed a response on Thursday, Sept. 21 to District Clerk Avrey Anderson Sr.’s amended petition to remove the DA from office, categorically denying all allegations outlined in the suit and demanding strict proof in accordance with state law. In his response, Higgins outlined a damning portrait of the district clerk’s office under Anderson’s direction and suggested the purpose of the district clerk’s petition was personal, not professional.
Subsequently, Anderson filed a Notice of Non-Suit the same day, dropping his petition to remove Higgins as DA.

In his original answer, Higgins alleged that Anderson has demonstrated repeatedly that he cannot fulfill the duties of district clerk and first became aware of these issues in January 2023. The DA also alleged the basis for Anderson’s suit was based on personal conflict between the two parties.
“Many within the Hays County legal community were concerned about Anderson’s youth, inexperience and failure to prepare for the role of district clerk,” Higgins’ original answer stated. “Anderson addressed these concerns publicly, stating that he had ‘been reading the manuals,’ ‘trying to get some training’ and had ‘talk[ed] to the deputies that still worked in the [district clerk’s office] to get their input, feedback and thought processes.’ However, after assuming office in January, Anderson terminated/replaced a number of the most experienced people in the district clerk’s office and replaced them with less experienced persons.”

Further, Higgins claimed he began to hear concerns from prosecutors and district judges regarding subpoenas and jury panels, impacting the court’s trial docket and delays in trials — a possible violation of a criminal defendant’s rights.

The DA had a conversation regarding the gravity of processing subpoenas for trials, to which Anderson responded, “I have no idea what you are talking about.” Higgins urged him to enroll in public administration classes and to hire experienced deputy clerks from nearby counties. Members of the legal community soon began openly discussing whether Anderson may need to be removed from his position due to what Higgins alleged was an inability or unwillingness to address his shortcomings that were affecting the Hays County justice system.

“During this time, Anderson was often observed in the courtrooms during dockets drinking tea and taking selfies. He was also observed by court staff twirling in a district judge’s chair. Anderson and his operation of the district clerk’s office is a daily concern among [prosecutors].”
The response then outlines a partial list of alleged failures in Anderson’s official duties including the following:
• Systemically failed to send temporary protective orders to the appropriate law enforcement entities. “This failure is particularly concerning because it put crime victims and witnesses at risk since law enforcement personnel were unaware that court orders were in place to prohibit criminals from having any contact or making threats to victims and witnesses,” the answer stated.
• Consistently failed to timely file grand jury indictments. “This failure resulted in delays in the issuance of warrants for the arrest of criminal defendants, issuance of bonds and delays in setting court dates,” Higgins alleged.
• Consistently mishandled or lost court filings and proceedings. “Since assuming office, Anderson’s office failed to issue subpoenas for witnesses as requested by the district attorney’s office which resulted in criminal cases that were set for trial having to be continued,” the original answer read. “Similarly, Anderson failed to call jury panels for trial settings which, again, caused criminal and civil cases that were set for trial to be continued.”
• Failed to file documents with the Austin Court of Appeal for criminal cases that were up on appeal which resulted in him repeatedly being admonished by the Austin Court of Appeal and given deadlines for submitting the “record” in cases on appeal.
• Failed to timely disburse restitution and other funds his office had collected to the proper recipients.

Higgins stressed that the statute clearly states that campaign promises cannot be the basis of the new “Rogue Prosecutor” law. Only statements made after the law took effect on Sept. 1 can be considered under the statute.

He also argued that he is not a “rogue prosecutor” and has assembled an excellent executive management team, comprised of seasoned prosecutors and staff that have managed to reduce case backlog, reduce the jail population, improve relationships with law enforcement agencies and achieve high sentences for violent offenders, according to his original answer.

Further, the DA cited Anderson’s explanation for filing his suit in a statement to Fox 7 Austin.

“There are legal grounds and there are my grounds … I will elaborate that our district attorney lacks professional courtesy and decorum. I experienced Kelly Higgins’ blind rage firsthand in the beginning of this year when he exploded in my office and attempted to intimidate me by threatening litigation via mandamus action for a misunderstanding about how we process subpoenas. This could have been solved with a meeting or a simple phone call,” Anderson stated to the media outlet. “... I also believe that Kelly Higgins ran on a misleading platform. Higgins told his constituents that he would ‘not use the resources of Hays County to prosecute abortion or other medical decisions made between a patient and their physicians.’ Negating and refusing to mention the fact that no doctor would be performing an abortion under risk of losing their license. In other words, it’s easy to say you are not going to punish an act or offense that is very unlikely to be achieved without judicial bypass. In the end, I believe that Hays County deserves better.”

In the original answer, Higgins alleged that Anderson’s stated purpose in filing the lawsuit was not to pursue a good faith belief that he violated Chapter 87 of the Texas Local Government Code. “Rather, it is based on personality conflict and disagreement over campaign strategies,” the response stated.

Higgins is seeking declarations that:
• Any public statements made by Higgins prior to his assumption of office on Jan. 1, 2023, cannot serve as the basis of an action to remove him under the Texas Local Government Code.
• Any statements posted on the DA’s campaign website cannot serve as the basis of an action to remove him under the same section of the code.
• As of Sept. 15, Higgins has not implemented and/or executed a policy of refusing to prosecute drug offenses.
• As of Sept. 15, the DA has not implemented and/or executed a policy of refusing to prosecute cannabis possession offenses.
• As of Sept. 15, he has not implemented and/or executed a policy of refusing to prosecute criminal offenses related to medical treatment of transgender persons.
• As of Sept. 15, Higgins has not implemented and/or executed a policy of refusing to prosecute criminal offenses related to medical providers performing abortions.

In addition to declaratory relief, Higgins requested compensation for attorney’s fees.

Less than a day after Higgins filed his original answer, Anderson filed a Notice of Non-Suit, advising that he “no longer wishes to prosecute” the case against the DA. Additionally, he submitted a proposed order seeking to dismiss the entire case, including Higgins’ counterclaims.

“The non-suit is especially surprising because Anderson swore under oath that D.A. Higgins was in violation of Chapter 87 of Texas Local Government Code,” stated the Response to Plaintiff’s Notice of Nonsuit.
It argued that the plaintiff is entitled to his claims against Higgins, but he cannot seek a dismissal of the DA’s counterclaim. Further, the response reads that it would be inequitable for Anderson to now be able to terminate this entire legislation by his notice.

“Anderson had no problem alleging and talking about how D.A. Higgins had violated the law, but suddenly wants to avoid having a trial in which he will be forced to testify,” the response stated.

It concludes by asking to dismiss Anderson’s claims, but not dismiss the lawsuit in order to address Higgins’ requests for relief.

This is an ongoing story. The Hays Free Press will update the public with information as it becomes available.