Controversial Travis County jail policy may be heading to court

The early review program involves staff members from the Travis County Attorney's Office and the Travis County District Attorney

Under the program, which is focused on accused offenders who are brought to jail, prosecutors now decide if charges will go to a magistrate judge, if another charge should be filed, or if the accused will be set free. The policy itself may soon be put on trial.

"We've spoken with people at the Attorney General’s office, and that’s all I can say for now," said Ken Casaday with the Austin Police Association.

Casaday did explain why the organization objects to what prosecutors are doing. "They've inserted their authority over the entire process and then breaking the law as far as we are concern," said Casaday.

FOX 7 obtained county jail documents that tracked the early review process from March to the end of June. It shows that 283 arrest complaints, written by law enforcement officers were tossed out by prosecutors before being seen by a Travis County magistrate. Casaday was asked if they considered the process as tampering with evidence.

"We believe it is, and the Code of Criminal Procedure is pretty clear, on how to handle arrests and an affidavit and they do not follow that," said Casaday.

The state Code of Criminal Procedure, Article 2.01, states that "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." It’s a broad statement, but it gives prosecutors the authority to do an early review process, according to Rob Kepple with the Texas District & County Attorneys Association.

"I’m not even quibbling whether or not there is probable cause, what I’m saying is, the DA has the right to look at that and say whether there is probable cause or not, I’m not going to file that particular charge,  maybe I'll file a different charge, but Mr. police officer understand, I’m not pressing those charges. It has nothing to do with probable cause," said Kepple.

Monday, officials for District Attorney Jose Garza told FOX 7 that: 

"To date, about 3% of cases have been rejected by the DA's office for not meeting the legal requirement for a Felony charge. When there is not sufficient evidence for a case to move forward as a felony, the office either refers the case to the county attorney for misdemeanor prosecution or back to law enforcement for further investigation. By implementing early arrest review, the District Attorney's office will no longer be letting through cases that law enforcement hasn't sufficiently investigated."

In a Zoom meeting a week ago, County Attorney Delia Garza and the District Attorney defended the review policy.

"The only cases that are ripe for this early case review are non-violent cases, are cases we determined do not pose a threat to public safety ... I know there is a lot of is information about our new policy, to say we have no rule that are not prosecuting anytime of case, we are still prosecuting Criminal Trespass cases," said County Attorney Garza.

FOX 7 Austin's review shows that 105 criminal trespass cases were tossed out by the county attorney between March and June.

"The process was interrupted, and that’s a shame that those people on the receiving end of the criminal act did not receive justice," said Charley Wilkison with CLEAT.

Wilkison believes the Early Review policy is all about pushing a political agenda.

"If the Garzas would like to impact state law and change felony offenses, there is a building right here, the state capitol, get yourself elected, file a bill and change state law, this is not the way to do and you can’t do, constitutionally, this is not your job," said Wilkison.

Officials with the Travis County DA’s office said the early review program here is modeled after existing programs in San Antonio, Houston, and El Paso. The DA is also continuing the previous administration's policy of not prosecuting small amounts of narcotics unless there is a threat to public safety.

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