Texas Senate narrowly confirms formerly indicted Austin cop to police watchdog agency

The vote is a show of strength for Texas Republican leadership after several members of the Senate Democratic Caucus sought to block Justin Berry’s nomination.

With one Democrat giving Republicans the margin they needed to advance a controversial nomination, the Texas Senate narrowly confirmed the appointment of a previously indicted Austin law enforcement officer to the state agency that governs police conduct in Texas.

Just reaching the two-thirds threshold, the 21-10 Senate vote Wednesday evening was a show of strength for Texas Republican leadership after Democrat Caucus members in the upper chamber sought to block Justin Berry’s nomination to the Texas Commission on Law Enforcement, the state regulatory agency that sets standards for peace officers. Berry, an active-duty Austin Police Department senior patrol officer, was indicted alongside several colleagues in 2022 for shooting less-lethal munitions at racial justice protesters in 2020. The charges were later dropped.

State Sen. Juan “Chuy” Hinojosa of McAllen was the sole Democratic senator to vote for Berry’s appointment.

Austin Police Association President Michael Bullock said the police union “wholeheartedly supports Officer Berry’s nomination to TCOLE,” sending records of Berry’s commendations and performance evaluations to back up his support of the “dedicated” officer.

“He has led community policing efforts, built relationships, and helped his fellow officers all across the state in times of need,” Bullock wrote in an email to the American-Statesman on Wednesday.

But several lawmakers felt Berry’s actions during the social justice protests nearly five years ago were too damning. During the Senate floor debate before the vote, Sen. Sarah Eckhardt, D-Austin, warned that Gov. Greg Abbott’s choice to tap Berry for the commission is “evidence of a growing intolerance to dissent” in state government.

“The symbolism of Officer Berry’s nomination is unmistakable. Of the more than 8,000 peace officers in Texas, the governor chooses Officer Berry not in spite of the fact that he shot into protesters, but because he shot protesters,” Eckhardt said.

The senator invoked Abbott’s recent pardon of Officer Daniel Perry, who was convicted of murdering Austin racial justice protester Garrett Foster in 2020, and his support of Kyle Rittenhouse as similarly symbolic. She also cited several other allegations of excessive use of force or misconduct against Berry as reasons why another candidate would have been better suited for the role. Ultimately, Berry’s charges were dropped.

Sen. Borris Miles, a Houston Democrat and former police officer, drew on his commonalities with Berry to explain his opposition to the cop’s appointment.

“We all took an oath to protect the welfare of our citizens,” Miles said on the Senate floor. “I cannot, in good conscience, support the appointment of Justin Berry to the commission … whose motto is ‘ethical law enforcement’ when he has been shown to be unethical.”

‘A political victory’

A Travis County grand jury indicted Berry in February 2022 for aggravated assault against racial justice protesters. The investigation determined that either Berry or one other officer shot a demonstrator in the face with a less-lethal munition, fracturing her jaw. The protester, wildlife biologist Christen Warkoczewski, later won $850,000 in a settlement with the city of Austin.

In 2023, Austin district attorney Jose Garza dropped the charges against Berry and 18 other officers who were indicted over their conduct during the May 2020 protests. Bullock, the Austin police union president, said the dismissal should have taken Berry’s indictment off the table when considering his confirmation.

“The fact that an incident investigated by the Austin Police Department and the Travis County District Attorney, where both said no policy or law was violated, is now being used against him for political purposes is alarming and disappointing,” Bullock said.

No Republicans gave remarks on Berry’s confirmation during the debate. Hinojosa, the lone Democratic senator to vote for Berry, did not respond to the Statesman’s requests for comment Wednesday but told the Texas Tribune that he felt voting against Berry’s confirmation would make him a “scapegoat” for the officer’s superiors’ failures. An attorney for eight of the indicted officers, Ken Ervin, told the Statesman in 2022 that the order to use beanbag munitions came from “the highest levels of APD command.”

“I didn’t feel there was any criminal behavior that would rise to the level of rejecting his nomination,” Hinojosa told the Tribune.

Berry has already served on the Texas Commission on Law Enforcement for nearly two years but had avoided confirmation until Wednesday. Abbott first appointed him in September 2022, while the officer was still under indictment, but Berry resigned in May 2023 after senators signaled he would not be confirmed before a deadline. 

Berry — who has unsuccessfully run as a Republican candidate in two Texas House primary races — then served 14 more months as a TCOLE commissioner after Abbott reappointed him in January 2024. The officer’s term is set to end in August 2027.

Wednesday’s debate touched on held-over tension over Lt. Gov. Dan Patrick’s decision to deny Democrats’ request to question Berry during a Nominations Committee hearing, a move that Eckhardt said was unprecedented as far as she knew.

“Minority senators should have the same rights and rules as majority senators,” Eckhardt told her colleagues on the floor Wednesday.

While the Austin Democrat’s effort to block the nomination did not succeed, Eckhardt can still “claim this as a political victory,” said Brian Smith, a professor of political science at St. Edward’s University who specializes in Texas politics.

“If you’re in the minority party … you’re not going to win a lot of legislation, but you want to make sure that the other party is going to have to be held accountable for their vote,” Smith said in a phone interview with the Statesman.

Wednesday’s vote also reflected a decision on the part of lawmakers about whether this was a “hill worth dying on,” Smith said.

“Democrats have to look and say, ‘Is there something that I’m going to want later in the session where I’m going to need Republican support?’” Smith said. “It’s a very important position, but it’s not a very visible position.”

Berry did not immediately respond to the Statesman’s request for comment.

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