A Texas prosecutor said on Tuesday that he would seek to have a court overturn Gov. Greg Abbott’s pardon of a man convicted of fatally shooting a Black Lives Matter protester in Austin in the summer of 2020.
The Republican governor’s pardon last month of the man, Daniel S. Perry, who had argued that he was acting in self-defense against an armed protester, was cheered by conservatives as a recognition of the state’s “stand your ground” protections.
But it was also met with outrage by the protester’s family, civil rights groups and José Garza, the Travis County district attorney whose office had secured the conviction.
On Tuesday, Mr. Garza, a Democrat, said he would petition the state’s highest criminal appeals court to overturn the pardon on the grounds that the governor had violated the constitutional separation of powers doctrine by intervening with a court’s actions.
“It’s up to the legal system whether a person is guilty or innocent,” Mr. Garza said at a news conference, where he was joined by relatives of the slain protester, Garrett Foster, a 28-year-old former mechanic in the U.S. Air Force.
But a lawyer for Mr. Perry countered that the governor had a well-established authority to grant pardons, and accused Mr. Garza of a “frivolous pursuit to overturn Governor Abbott’s pardon.”
“The pardon power is given to the executive branch of government and is not subject to being second-guessed by the judicial branch of government,” the lawyer, Clint Broden, said in a statement.
Mr. Perry was an active-duty U.S. Army sergeant on the night of July 25, 2020, when he was working as an Uber driver in downtown Austin and drove toward a crowd of demonstrators.
It was there that a group of people that included Mr. Foster approached Mr. Perry’s car. Mr. Foster — who, like Mr. Perry, was white — wore a bandanna on his face and carried an AK-47-style rifle on a strap in front of him. Mr. Perry’s lawyers said Mr. Foster had begun pointing his weapon, and it was then that Mr. Perry opened fire.
Mr. Perry was sentenced to 25 years in prison in May of last year after prosecutors presented evidence of his past racist online comments and said that psychological experts had found him to be “basically a loaded gun.”
Governor Abbott’s decision to pardon him followed a recommendation from the state’s Board of Pardons and Paroles, whose members are appointed by the governor. Under Texas law, a recommendation from the board is necessary before the governor can grant a pardon.
Mr. Abbott’s office did not immediately respond to a request for comment on Tuesday. In a statement issued with the pardon, Mr. Abbott said that the board conducted a “thorough investigation” and that he supported its finding. He also asserted that 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.”
On Tuesday, Sheila Foster, the protester’s mother, joined the district attorney in denouncing the pardon, saying her son was “killed on American soil” while he was exercising “his First Amendment rights.”
Mr. Garza’s attempt to have the conviction reinstated will now rest with the Texas Court of Criminal Appeals, whose nine members are all Republicans.
Separately, 14 Democratic state attorneys general have pressed the U.S. Justice Department to open a civil rights investigation into Mr. Foster’s killing, saying in a letter last month that they were “concerned that these ‘stand your ground’ laws encourage vigilantes to attend protests armed and ready to shoot and kill those who exercise their First Amendment rights.”
J. David Goodman contributed reporting.