As Sunday Protest Looms, 80 Arrested Protesters Still Face Charges

More thorough arrest affidavits mean no immediate dismissal

A woman is arrested at a pro-Palestinian protest at UT-Austin (Photo by Lina Fisher)

After nearly 140 demonstrators were arrested across two days of peaceful protest at UT-Austin, 80 individuals face criminal charges.

Nearly all of those arrested have been charged with criminal trespass, a Class B misdemeanor in Texas, punishable by up to 180 days in jail and a $2,000 fine. The 57 individuals arrested during the first intense day of protest, April 24, all saw their criminal trespass charges dismissed within 24 hours of arrest (judges and prosecutors cited a lack of probable cause supporting the arrests).

But the 79 protesters arrested Monday, April 29, face a more uncertain future. Though they were all arrested for the same minor offense (one was also charged with obstructing a highway or passageway, also a Class B misdemeanor) the arrest affidavits filed by police officers along with their arrests were much more thorough and, as a result, could not be dismissed under the same legal strategy devised by defense attorneys representing the first week’s protesters. So although all of the second week’s protesters were released from jail, May 1, about 48 hours after the first arrests were made, it is unclear what will happen with their cases.

Travis County Attorney Delia Garza, the elected prosecutor whose office handles local misdemeanor offenses, is tasked with making decisions in these cases. She tells the Chronicle that could take some time, because the protest arrests – as high profile as they may be – only add to an already large backlog of pending cases. “We have 29,000 cases in this office currently and we prioritize violent crime,” Garza told us, May 3. Each of her prosecutors carries about 500 cases at a time, she said, each of which requires a different approach and amount of time to see through the system, based on severity of the offense, desires of the victim, and criminal history of the defendant.

Historically, criminal trespass cases have represented a small percentage of the cases coming into the County Attorney’s Office (currently they represent about 3% of active cases, Garza said), with family violence and misdemeanor assaults accounting for much higher shares of incoming cases. Focusing prosecution on violent offenses, while dismissing or diverting lesser, nonviolent offenses, was a stated priority for Garza in her 2020 campaign, but the landscape around prosecutorial discretion – that is, her ability to set priorities for what categories of crimes should and shouldn’t be prosecuted – has shifted in Texas.

A new law enacted by Texas Republicans puts elected prosecutors at risk of removal from office if they decline to prosecute certain types of crimes (District Attorney José Garza is currently facing such a threat, though it is unlikely to succeed). Delia Garza declined to comment on how this new law is factoring into her office’s decisions on the 79 protest cases, but said she wants to "protect the integrity of my discretion as a prosecutor.”

“It’s important for the community to know I base these decisions on many factors,” Garza said. “A prosecutor's job is to see that justice is done. That looks different from case to case and that requires a thorough review of each case.”

In the mix with Monday protesters, one case remains from last week’s protests: Carlos Sanchez, a photojournalist working for Austin’s Fox 7 news station, is accused of misdemeanor assault and interference with public duties, also a misdemeanor. The arrest warrant issued for Sanchez’s arrest say he “lunged” at state troopers, but people who defend Sanchez say he was merely documenting a chaotic scene as a diligent journalist and that any contact he made with law enforcement officers was accidental.

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UT-Austin, UT, Palestine, Israel, Delia Garza, José Garza

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