Texas Prosecutor Challenges Governor's Pardon of Convicted Murderer

A Texas prosecutor seeks to have the state's highest criminal court review and potentially overturn the governor's pardon of a man convicted of murdering a Black Lives Matter protester.

Travis County District Attorney José Garza announced on Tuesday that his office would file a request with the Texas Court of Criminal Appeals for a writ of mandamus, a legal decision that could overturn the pardon granted by Governor Greg Abbott.

Background of the Case

Daniel Perry, then 35, was convicted last year of fatally shooting Garrett Foster, 28, during a Black Lives Matter protest in Austin in 2020. Perry was sentenced to 25 years in prison for the murder. On the day of Perry's conviction, Governor Abbott declared his intention to pardon Perry as soon as legally possible, citing Texas' "Stand Your Ground" laws.

In May, Abbott officially announced the pardon, arguing that Perry's actions were justified under these self-defense laws. Perry was released from prison shortly after the pardon was issued.

Texas "Stand Your Ground" Laws

Texas law allows individuals to use deadly force when they believe their life or property is threatened by serious violence, kidnapping, or robbery. The law stipulates that a defendant must provide evidence and an affirmative defense to justify their use of deadly force, without an obligation to retreat.

“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott stated in his announcement on May 16.

Details of the Incident

On July 25, 2020, Perry, an Army sergeant based at Fort Hood, was driving in downtown Austin where a Black Lives Matter protest was taking place. He stopped at an intersection and, according to his account to the police, opened fire from his vehicle in self-defense after Foster pointed a semiautomatic rifle at him. Foster was legally carrying the rifle at the time.

More than a year after the incident, a Travis County grand jury indicted Perry for murder. Prosecutors contended that there was no evidence Foster had pointed his weapon at Perry and suggested Perry could have driven away to avoid the confrontation. They also cited texts and social media posts to portray Perry as having racist intentions.

On April 7, 2023, Perry was convicted of murder, though the jury acquitted him of aggravated assault with a deadly weapon.

Pardon Process and Legal Challenge

Governor Abbott sought and received a unanimous recommendation for a pardon from the Texas Board of Pardons and Paroles. However, DA Garza argues that Abbott's move to pardon Perry was an attempt to "circumvent the process" and that the proper procedures for vetting a pardon were not followed.

"The codified process to support a finding of innocence was not followed," Garza said at a news conference. He asserted that the governor's actions exceeded his authority and violated the separation of powers doctrine.

Perry's attorney, Clint Broden, defended the governor's decision, stating that Abbott used his pardon powers lawfully and that such powers are comparable to those given to other state governors and the President of the United States. Broden accused Garza of politicizing the case to challenge Abbott's conservative policies.

Response from the Victim's Family

Garrett Foster’s mother, Sheila Foster, expressed her dismay at the governor's pardon during the news conference, stating, “we had justice for Garrett” before the pardon was issued. She emphasized her son's service in the U.S. Air Force and his exercise of his First and Second Amendment rights at the time of his death.

“My own child was killed on American soil for doing nothing but practicing his First and Second Amendment rights. And our governor just said that’s OK, that’s acceptable, as long as he doesn’t like the victim or what the victim is saying,” Sheila Foster said.

Broader Implications

The legal challenge to the pardon by DA Garza's office aims to address what they see as an overreach of executive power and to ensure that justice is served in accordance with the law. The case underscores the ongoing debate over the use of pardons and the balance of power between the executive branch and judicial processes.

Political and Legal Reactions

The case has sparked significant political and legal reactions, highlighting the tension between different branches of government and the broader implications for justice and governance in Texas. The outcome of this legal challenge could set a precedent for how pardons are issued and reviewed in the state, potentially impacting future cases and the use of executive clemency powers.

As the Texas Court of Criminal Appeals considers the request, the legal community and the public will be closely watching to see how this high-profile case unfolds and what it means for the future of justice and accountability in Texas.