Teen Files “Rogue Prosecutor” Lawsuit Against Hays Co. Prosecutor

It’s likely the first suit of its kind in Texas

Hays County District Attorney Kelly Higgins (Photo via Kelly Higgins campaign)
Editor's note Monday, Sept. 25:The Hays County teen seeking to remove prosecutor Kelly Higgins from office filed a notice Thursday that he is dropping the suit, but Higgins told the Statesman he still wants to see a trial in the case.

Hays County's Kelly Higgins has become the first district attorney we know of to face removal from office under Texas' new "rogue prosecutor" law. However, the person seeking to remove him from office is doing so for personal reasons.

"I want to get rid of him because he's an impolite person," said Avrey Anderson, the 19-year-old district clerk who filed a lawsuit in Hays County court on Sept. 12 to have Higgins removed for official misconduct. Anderson told the Chronicle: "He's a jackass. He's disrespectful and rude to everyone."

“I want to get rid of him because he’s an impolite person.” – Plaintiff Avrey Anderson

Anderson filed suit under a new law added to the books at the beginning of September. Referred to as the "rogue prosecutor" law, House Bill 17 allows any citizen of a county to seek the removal of a D.A. who has adopted or spoken of a policy to limit prosecution of any particular offense. The bill was passed by Republicans eager to strip power from reformist D.A.s such as José Garza in Democratic-majority cities who have, for example, promised to lower jail populations by handling drug arrests with diversion programs.

Higgins is one of these reformers. During his campaign last fall, he promised he would reject the prosecution of low-level drug possession cases. He went on to say over social media that he would not prosecute doctors who performed abortions or provided care for transgender people. His response to Anderson's suit has been muted but he did dispute the charges. "This office does not have, and has never had, any policies regarding disposition of cases by class or type," Higgins told the Chronicle. He said he could not comment further.

In his lawsuit, Anderson initially complained that Higgins' promises regarding drug possession, abortion, and trans health care were in violation of HB 17. Anderson has since removed the complaints relating to medical care. "I'm for women's bodily autonomy and the rights of transgender people to bodily autonomy as well. I want to get rid of Higgins but I don't want to get rid of him at the cost of it appearing that I'm against women or transgender people," he said.

The suit against Higgins has not yet been set for a trial. HB 17 specifies that the presiding judge of the judicial region will try the suit and appoint a prosecutor from an adjacent county to make the case against the D.A. An earlier version of the bill, not signed into law, specified that public statements suggesting a policy would be sufficient to remove a prosecutor from office, but the adopted law is less specific, banning "adoption or enforcement of a policy."

Editor's note Sept. 22, 2:36pm: A previous version of this story quoted an earlier draft of HB 17, which was not signed into law. The Chronicle regrets the error.

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Kelly Higgins, HB 17, rogue prosecutor, Hays County

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