Amid personal conflict, Hays County clerk turned to Republican’s “rogue” prosecutor law to oust fellow Democrat

Hays County District Attorney Kelly Higgins is being targeted by a fellow Democrat under a new state law Republicans crafted to remove "rogue" prosecutors from office. (Credit: Campaign website)

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The Republican-led Texas Legislature passed a new law that went into effect this month that allows prosecutors to be removed from office if they choose not to go after certain crimes. The goal: to rein in “rogue” district attorneys in Texas’ large, left-leaning counties.

But in what could be the first petition under House Bill 17, the Democratic district attorney in Hays County is being targeted by a member of his own party.

Hays County District Clerk Avrey Anderson and District Attorney Kelly Higgins — two newcomers to political office — first butted heads on the heels of being sworn into their respective offices in January.

Anderson filed a petition to remove Higgins from office earlier this month. Using the new provision HB 17 created, Anderson alleges Higgins has refused to prosecute low-level drug offenses. The allegations are based on promises Higgins made during his campaign in 2022 to not prosecute minor marijuana-related offenses, as well as violations of the state’s strict abortion ban.

Higgins is far from the first Texas prosecutor to make such vows. Law enforcement and district attorneys across the state — particularly in more populous urban areas — have backed away from prosecuting certain misdemeanors, especially possession of small amounts of marijuana. They say such cases often clog up the criminal justice system and disproportionately entangle people of color.

Anderson says he supports the decriminalization of cannabis and misdemeanor drug possession, but he sees HB 17 as a way to remove Higgins from office after months of interpersonal conflict.

Anderson, 20, is one of the youngest elected officials in the state. He said Higgins threatened to file to hold him in contempt for not issuing subpoenas at a faster rate, spoke ill of Democratic judges and made disparaging comments about his age. Anderson likened the district attorney to former President Donald Trump.

“It wasn't a political statement,” Anderson said, when asked why he filed the petition to remove Higgins. “I do think that removing him was important to our party. … I don't think we need a bully in our party because our party, its whole purpose is to stand up to bullies.”

Higgins declined to comment on pending litigation but said his office does not have any policies about the non-prosecution of any type of crime.

In his written response to the petition, Higgins said Anderson exhibited “intransigence at earnest attempts to assist him in stabilizing his office” and “incompetence and unwillingness to improve.” The district clerk was observed taking selfies in the courtroom and twirling in a district judge’s chair, he said.

The Hays County district clerk has asked the court for a jury trial and to suspend Higgins during proceedings. The outcome of the case against Higgins will stand as a test for the kinds of evidence it will take to remove a prosecutor from office under the new law, experts say. It also raises questions about if and how district attorney campaigns will change in response to the new legislation.

Allegations based on campaign promises

Higgins ran on a campaign to use the county’s limited resources to prosecute violent crime. He said he would not prosecute residents for their personal decisions.

“We cannot continue to spend taxpayer funds to pursue every offense without regard for its seriousness and danger to the community,” Higgins said as part of his campaign platform.

Democrats have a slim majority in Hays County — 54.4% of voters cast a ballot for Biden in the 2020 presidential election. In 2022, Higgins beat a Republican for his seat by more than 6 percentage points.

Higgins planned to redirect resources away from prosecuting substance use and toward community groups providing treatment options, according to his campaign website, which was still up at the time the petition was filed.

The petition suggests Higgins made good on that promise. Anderson claims an “excessive” amount of drug possession cases — including cocaine and methamphetamines — have been declined “for random and nonspecific reasons” since Higgins took office.

In his initial petition, the district clerk also alleged Higgins was not prosecuting medical malpractice claims related to abortion procedures and health care for trans youth — promises Higgins also made in his campaign. But Anderson dropped those charges because he said they go against the interest of his constituents.

The court will have to contend with whether a campaign platform that has not been disavowed can be interpreted as a policy, said Roger P. Abshire, a political scientist at Texas State University in Hays County.

It will also have to address whether Higgins’ campaign statements, made before the law went into effect on Sept. 1, can be used in this case. Higgins’ defense argues that only statements made after Sept. 1 are subject to the law.

If Higgins is removed, Abshire said it may change how prosecutors run their campaigns.

“It will be curious to see going forward now if this has an effect, whether or not any of those platforms change,” Abshire said. “There may be coded language that comes up in which these kinds of district attorneys sneak that message in without blindly saying it.”

Removal attempts

The attempt to remove Higgins comes in the background of state impeachment proceedings against Texas Attorney General Ken Paxton, which ended in an acquittal last week, but also exacerbated a widening rift within the Texas GOP.

“What we're seeing is, more broadly speaking, the politicization of removal processes,” said James Riddlesperger, a political scientist at Texas Christian University.

Removing elected officials from office — whether through legal channels or impeachment — was once considered a rare, last-resort process. But it’s become far less rare in recent years: Trump was impeached twice, and the U.S. House is currently considering impeaching President Joe Biden. And at the same time Paxton’s trial was happening in the state Senate this month, the Texas A&M student body president also faced impeachment for allegations of misusing his office.

The Hays County district clerk has been met with backlash by his own party for initiating the removal process with HB 17. John Hatch, the chair of the Hays County Democratic Party, called Anderson a "foot soldier" for the Republican Party's agenda.

“If it's about personal interactions, issues that he’s had with Mr. Higgins, but he's going to use a law that violates all of his own tenets — that doesn't make much sense to me,” Hatch said. “I have a problem with using taxpayer dollars to settle personal disputes.”

Former U.S. House Speaker Sam Rayburn — a famous Texas statesman — once counseled new congressmen: “Learn to disagree without being disagreeable.” Former President Gerald Ford, who was in that crowd of freshmen, recounted it as one of the best pieces of advice more than 50 years later.

But in this era of polarization, Riddlesperger suggests that counsel might not stick anymore.

“There's always been name-calling in politics,” Riddlesperger said. “But the nastiness and the will to engage in character assassination … it is a difference in kind.”

Disclosure: Texas Christian University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.