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Travis County DA José Garza files suit to undo governor's pardon of Daniel Perry

Mourners and supporters gather for a vigil for Garrett Foster, who was shot and killed during a Black Lives Matters protest on July 25, 2020. A jury on Friday convicted Daniel Perry, a U.S. Army sergeant, of murder in the case.
Michael Minasi
KUT News
Demonstrators gather for a vigil for Garrett Foster, who was shot and killed during a Black Lives Matter protest on July 25, 2020. Last year, a jury convicted Daniel Perry of murder in the case.

The Travis County District Attorney is challenging the governor's pardon of Daniel Perry, who was convicted of murdering a Black Lives Matter protester in Austin in 2020.

José Garza said his office filed the challenge, known as a writ of mandamus, with the state’s highest criminal court on Tuesday. It argues the pardon violated the Texas Constitution.

Perry got into an altercation with Garrett Foster after driving into a crowd of protesters in July 2020. He shot Foster, who was also armed, multiple times. A Travis County jury convicted Perry of murder, and he received a 25-year prison sentence.

Gov. Greg Abbott had pledged to pardon him after pressure from conservative media outlets. He argued Perry was within his rights to shoot Foster under Texas’ stand your ground law and that the case shouldn’t have gone to trial.

Abbott followed through with that pledge last month.

Garza on Tuesday called the pardon a “mockery of our legal system” and said the decision suggested Foster’s "life does not matter." He said the jury’s conviction was undermined by the governor’s pardon and that Perry wasn't eligible for a pardon because he was appealing.

"We will continue to use the legal process to fight for Garrett Foster, for his family and for his friends," he said.

KUT reached out to Abbott's office for comment, but has not heard back.

Foster's mother decried the pardon, saying Perry had expressed racist beliefs and that he had suggested he was going to shoot protesters demonstrating for racial justice in 2020.

"If we allow this, we are setting a precedent for anybody else who wants to copycat that — and for any other governor who wants to overstep outside of their role and undermine the justice system that we have in place, that has worked," Sheila Foster said "It was planned. It was premeditated."

Asked how he thought the challenge would play out on the all-Republican court, Garza, a self-proclaimed progressive Democrat, said he hoped the justices would take a "fair" look at the politically charged case.

"In this instance, the conduct is quite egregious," he said, "and so we're hopeful that the Court of Criminal Appeals will do the right thing."

Last week, 14 attorneys general from other states called on the Department of Justice to examine the case, citing Perry's use of violent and racist language on social media.

In a letter, the attorneys general said Perry violated federal law when he fatally shot Foster and that the DOJ had the power to intervene, as it did in 2018, when it charged an Ohio man in federal court for killing a protester at a 2017 Charlottesville rally.

Perry's attorneys filed a motion Wednesday to pause his appeal while Garza's challenge plays out in court. In the filing, his attorneys said "in the one in a zillion chance" that the DA succeeds – and the pardon is undone – they'll move forward with the appeal.

Andrew Weber is a general assignment reporter for KUT, focusing on criminal justice, policing, courts and homelessness in Austin and Travis County. Got a tip? You can email him at Follow him on Twitter @England_Weber.
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