PLEASE NOTE: Nothing in this publishing or on this website should be taken as legal advice.

COUNTERCLAIM: Hays County District Attorney Responds to District Clerk

In a recent update, the District Attorney of Hays County, Kelly Higgins, has provided a formal response to the petition filed by the District Clerk seeking his removal from office. The petition, initiated by Anderson, accuses the District Attorney of misconduct. As this situation continues to unravel, tensions within Hays County are noticeably escalating.

Based on the most recent legal document submitted by Higgins, serious allegations have been raised against Anderson, relating to a consistent disregard for the essential responsibilities associated with their role since assuming office on January 1, 2023. Higgins purportedly became cognizant of these concerns in the early months of the year and promptly addressed them directly with Anderson. These reported issues have undeniably impeded the fair administration of justice within Hays County.

Anderson filed a lawsuit with a clear purpose: to prevent Higgins or anyone else from initiating legal action against him. It appears that if a resident of Hays County petitions for Anderson’s removal from office due to incompetence, he will assert that Higgins should defer to another prosecuting authority when it comes to taking any action against him.

Hays County District Attorney Provides Context

According to Higgins’ response to Anderson’s petition for removal following the November 2022 election, doubts arose within the legal community of Hays County regarding Anderson’s suitability for the position. Concerns were voiced regarding his youth, limited experience, and perceived lack of preparedness. Anderson publicly addressed these concerns, stating that he had diligently studied relevant manuals, sought training, and sought the input and insights of the deputies in the District Clerk’s office.

Higgins promptly addressed the concerns voiced by prosecutors on the frontlines, carefully considering the potential impact on the court’s trial schedule. Initiating a constructive dialogue with Anderson, Higgins emphasized the importance of expeditiously handling subpoenas for criminal trials. Interestingly, Anderson’s response was unexpectedly dismissive, remarking, “I have absolutely no clue what you’re referring to.”

The late processing of legal summonses and the inability to assemble juries for criminal trials have not only resulted in significant delays in the judicial process, but have also given rise to apprehensions regarding possible violations of the rights of accused individuals. Such concerns, as Higgins emphasizes, have profoundly impeded the crucial functioning of the courts and the fair administration of justice in Hays County.

Higgins claims he has been attentive to these matters since early in the year and has been taking steps to address the situation. However, tensions continue to rise between the two officials as Anderson recently filed a lawsuit seemingly aimed at preventing legal action against Anderson by the District Attorney or others. This feud between the Hays County District Attorney and District Clerk remains ongoing, and its impact on the administration of justice in Hays County can be concerning.

Petition to Remove the District Clerk?

The concerns about District Clerk Anderson’s ability to fulfill his duties have escalated, as per Higgins, leading to discussions about potentially removing him from office. Despite Higgins’ efforts to assist Anderson by suggesting enrollment in Public Administration classes and the hiring of experienced deputy clerks, Higgins states that Anderson has failed to address his shortcomings, which have negatively impacted the Hays County Justice system. Higgins believes that Anderson’s lack of understanding of the office’s duties, refusal to cooperate in stabilizing his office, and demonstrated incompetence have raised serious questions about his competence.

Moreover, as per Higgins’ account, some witnesses have shared instances of Anderson displaying inappropriate behavior during court proceedings, including sipping tea and capturing selfies within the courtrooms. There have also been accounts of Anderson twirling in a District Judge’s chair. Understandably, these actions have intensified concerns among the dedicated prosecutors within the District Attorney’s Office and others involved.

Higgins asserts that the daily matters revolving around Anderson and the functioning of the District Clerk’s office have emerged as a substantial cause for alarm among those entrusted with the dispensation of justice in Hays County. The persistent concerns and perceived lack of willingness on Anderson’s part to effect improvements have only magnified the imperative for a potential petition seeking his removal from the post of District Clerk.

Notice of Non-Suit Submitted by the Hays County District Clerk

The Hays County District Clerk filed a notice to non-suit without prejudice soon after the Hays County District Attorney filed a response and a counter claim. However, Higgins is requesting declaratory relief against Anderson; that is, the lawsuit has not been fully concluded. Higgins is seeking to obtain a declaratory relief that:

Any public statements made by D.A. Higgins prior to his assumption of office on
January 1, 2023 cannot serve the basis of an action to remove him under Texas
Local Government Code § 87.012(a)(2);

As of September 15, 2023, D.A. Higgins has not implemented and/or executed a
policy or policies of refusing to prosecute drug possession offenses;

As of September 15, 2023, D.A. Higgins has not implemented and/or executed a
policy or policies of refusing to prosecute cannabis possession offenses;

As of September 15, 2023, D.A. Higgins has not implemented and/or executed a
policy or policies of refusing to prosecute criminal offenses related to medical
treatment of transgender persons; and

As of September 15, 2023, D.A. Higgins has not implemented and/or executed a
policy or policies of refusing to prosecute criminal offenses related to medical
providers performing abortions.

DISTRICT ATTORNEY KELLY HIGGINS’ RESPONSE TO PLAINTIFF’S NOTICE OF NONSUIT, filed September 19, 2023, in Cause 23-2326, Hays County District Court

In his response, Hays County District Attorney Kelly Higgins asserts that while District Clerk Anderson has the right to withdraw his claims against Higgins, he cannot request a dismissal of Higgins’ counterclaim. Higgins maintains that his counterclaim is separate and independent from Anderson’s claims and should be allowed to proceed. According to Higgins, the counterclaim seeks declaratory relief on various matters, including the basis for removing him from office and his prosecution policies. Therefore, even if Anderson chooses to non-suit his claims, Higgins argues that his counterclaim should still be considered by the court.

In response to Anderson’s notice of non-suit, Hays County District Attorney Kelly Higgins maintains that it would be unfair for Anderson to be able to terminate the entire litigation through this action. Despite Anderson’s decision to abandon his lawsuit, Higgins argues that Anderson has repeatedly made public statements about his allegations against Higgins and discussed how Higgins allegedly violated the law. Higgins believes that it is inconsistent for Anderson to now avoid a trial where he would be required to testify. Higgins asserts that his counterclaim should still be allowed to proceed, as it addresses separate matters and seeks declaratory relief on various issues related to his position and policies as District Attorney.

A Couple of Our Other Reads

You may be interested in our publishing on the initial filing to remove the Hays County District Attorney.

Or you may find our publishing on the amendment of the initial petition to remove the Hays County District Attorney, of interest.

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