The attorney for a former Starr County District Attorney’s Office employee accused of illegal voting is asking a judge to toss the case because her client’s DNA has been excluded from an envelope used to deliver the alleged illegal ballot.

Authorities arrested 44-year-old Bernice Garza, who headed the crime victim’s unit for the 229th District Attorney’s Office, in January of this year, charging her with two counts of illegal voting and a count of providing false information on a voting application on accusations the woman voted under the name of Hortencia Rios, who died in 2007.

Garza’s attorney, Martie Garcia Vela, said had the state properly investigated and thoroughly examined all of the witnesses in the case, it would have discovered the true perpetrator.

“We hope that in the interest of justice the state does the right thing so that Bernice Garza can move on from being falsely accused of something she did not do,” Vela said. “After all, the duty of a prosecutor is to seek justice, not convict.”

According to Vela, an analyst at the Texas Department of Public Safety at the Weslaco Crime Lab excluded Garza’s DNA from evidence on a carrier envelope used to deliver what the state says is an illegal ballot.

“Further Garza presents evidence to this Court that the DNA Lab Results have excluded Bernice Garza’s DNA from being on the envelope that held the ballot of a said deceased person, thereby excluding her as the person who either impersonated or participated in the casting of a ballot made the basis of the voter fraud charges against her,” the motion to dismiss states.

Garza maintains that she is being prosecuted in retaliation for filing a federal wrongful termination lawsuit against Starr County District Attorney Omar Escobar, who fired her in April 2018.

According to Garza, her termination followed a dispute over political alliances involving Garza’s sister.

A federal judge dismissed that lawsuit for failure to state a claim. Garza has appealed the ruling to a higher court.

Furthermore, Garza also argues that the state did not turn over evidence that points toward a potential suspect in the case.

According to Garza’s attorney, Vela, a Texas Attorney General investigator told a grand jury after referring to his file that Hortencia Tanguma Rios, 40, may have used her grandmother’s identity to vote. Her grandmother is Hortencio Rios, who died in 2007.

That same official also told the grand jury that Garza impersonated Hortencia Rios and voted, according to a motion to dismiss.

Garza also claims in that motion that the law enforcement official later redacted the sentence in his file regarding Hortencia Tanguma Rios.

That information is possibly exculpatory and the state is required by law to turn it over to the accused.

“The Defendant, Bernice Annette Pena Garza requests that the Court dismiss all the charges and counts in the case because of the DNA results and because of law enforcement violations,” the motion states.

As of deadline Friday, the state had not responded to the motion to dismiss.