From: The Austin Bulldog
By: Ken Martin
Attorney Kerry E. Russell of the Georgetown law firm Russell & Rodriguez LLP filed a criminal complaint with Williamson County District Attorney John Bradley, alleging that Williamson County Attorney Jana Duty committed a Class A misdemeanor offense through “intentional destruction of a local government record.”
Jana Duty“…I am requesting that you file charges and prosecute Ms. Duty for this violation,” Russell states in his January 13 letter addressed to Bradley. The record referred is a memorandum dated June 1, 2008, that Duty sent to three Williamson County Court at Law judges. A copy of that memorandum, with gaps in the text indicating that some of the content is missing, is included Attachment B to Russell’s complaint.
Dan A. GattisCounty Attorney Duty said Russell’s criminal complaint is without merit and was lodged as a means of retaliating against her in response to her civil lawsuit to suspend and remove Williamson County Judge Dan A. Gattis from office for alleged incompetence and official misconduct. The lawsuit alleges five instances of incompetence and official misconduct by the judge, who issued a statement indicating there has been no misconduct or violations of law. The Austin Bulldog reported on that lawsuit December 29.
Rick MorrisThe removal lawsuit is pending a decision by Judge Rick Morris of the 146th Judicial District Court of Bell County about whether to have Judge Gattis served citation. If Morris decides yes, the lawsuit will proceed. If he decides no, then the lawsuit dies and that decision may not be appealed. Information about Judge Morris was published by The Austin Bulldog January 3.
Whether Russell’s complaint was filed as retaliation for the lawsuit cannot be determined but circumstances indicate that’s possible. The Williamson County Sun reported yesterday that Gattis said he gave Russell a copy of the letter. Gattis also told the Sun there needs to be an investigation of possible misconduct by Duty, but that he is not involved and did not ask Russell to pursue it.
John BradleyDistrict Attorney Bradley told the Sun he has a duty to evaluate the complaint.
Duty thinks otherwise. She says the statute of limitations for a Class A misdemeanor—if one was actually committed—is two years. The Code of Criminal Procedure, Article 12.02(a), states “An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.” Duty’s memorandum was dated June 1, 2008, more than two and a half years ago.
“Bradley should have said he looked at the complaint and said there’s nothing he can do because the statute of limitations has run,” Duty says.
Alleged offense complicated
The regulations pertaining to how long a record must be kept under the laws of Texas are of paramount importance in weighing Russell’s complaint against Duty.
The key question is how long was Duty required by law to keep the memorandum she wrote June 1, 2008?
No county-wide policy—Williamson County has no county-wide records retention policy, according to Connie Watson, Williamson County’s public information officer. “Elected officials are the official keepers of their own records….” she wrote in an e-mail to The Austin Bulldog October 4, 2010, in response to an unrelated open records request. Section 203.001 of the Local Government Code states, “Each elected county officer is the records management officer for the records of the officer’s office.”
No county attorney policy—Duty says that the county attorney’s office does not have a written records retention policy.
State regulations apply—In the absence of local records retention policies, Section 441.158 of the Government Code provides that the Texas State Library and Archives Commission shall issue records retention schedules that have the same effect as if prescribed by law. Local Schedule GR sets mandatory minimum retention periods for records that are usually found in all local governments.
Complaint alleges five-year retention required—Russell’s complaint states that Duty’s memorandum should be classified under Section 1000-26(a) of Local Schedule GR as “policy and program development” and therefore must be retained for five years. This category involves “correspondence and internal memoranda pertaining to the formulation, planning, implementation, modification, or redefinition of the policies, programs, services, or projects of a local government.”
Duty says retention only two years—Duty says she believes the memo should be classified under Section 1000-26(b) as “administrative” and therefore needs to be retained for two years. This category involves “correspondence and internal memoranda pertaining to or arising from the routine administration or operation of the policies, programs, services, and projects of local government.”
Russell’s complaint accuses Duty of destroying the memorandum.
But Duty wrote in the memo, “I will not maintain a copy of this letter so that it will not have to be disclosed in any future PIA (Public Information Act) request.”
Bill Aleshire, a former Travis County judge, is an attorney who volunteers with the Freedom of Information Foundation of Texas to provide media outlets with advice on legal matters. Aleshire says a big issue in resolving this complaint against County Attorney Duty “is whether ‘failing to keep a copy’ is a violation, as opposed to ‘destroying a record.’
“I think these officials have a statutory duty to ‘preserve’ certain records but the criminal penalty does not appear to apply to failing to ‘create and maintain a copy’ as opposed to the prohibition against ‘destroying’ a record,” Aleshire says.
Duty wrote the memo in response to the county court at law judges’ letter to County Judge Gattis on May 1, 2008 (Attachment A to Russell’s complaint) asking for the appointment of private legal counsel to replace Assistant County Attorney Stephen Ackley.
Making matters worse for her, Duty says, the county court at law judges’ letter was leaked to her opponent in the 2008 general election, Democrat Jaime Lynn, who was using it against her in the campaign.
She was steamed.
“That letter was written in anger,” she says of her June 1 memo to the county court at law judges. “I fired off an ugly letter to them and here it comes back to bite me two and a half years later.”
Duty says she included the statement about not maintaining a copy of the memo because the document contained sensitive information about possible misconduct on the part of some of the county court at law judges.
“That letter contained embarrassing information on the judges and I didn’t want it to fall into the wrong hands,” she says.
One of the sensitive matters in the memo that is not included in the incomplete version of it attached to the complaint, Duty says, concerned allegations that Judge Don Higginbotham of County Court at Law No. 3 was sexually harassing women who worked in his office. Two of those women later filed an EEOC complaint and then a federal lawsuit against Higginbotham for sexual harassment, Kimberly Lee and Sharon McGuyer v. Williamson County, Texas, as reported by The Austin Bulldog November 23, 2010.
Attorney Aleshire pointed out that the original record of Duty’s memo is not a piece of paper—it’s the electronic file created on the computer she used to write it.
Duty says she wrote the memo on the desktop personal computer in her county office, but she doesn’t recall if she deleted the file after writing it. The county’s information technology department replaced that computer about a year ago with a new one, she says, and the installation included transferring the files from her old computer. She says she isn’t sure if that file is on her new computer. She says she may hire a computer expert to see if the file can be recovered.
In addition to filing a criminal complaint with the district attorney, Russell sent a copy of his complaint to Judge Gattis for the Commissioners Court.
Cynthia LongThe agenda for tomorrow’s meeting of the Williamson County Commissioners Court includes Item 27 submitted by Precinct 2 Commissioner Cynthia Long to “Discuss and take appropriate action regarding the Commissioners Court filing a grievance complaint with the State Bar Association (sic) against the Williamson County Attorney.” The Commissioners Court meeting is scheduled to begin at 9am in the Commissioners Courtroom, 710 Main St., in Georgetown.
Commissioner Long could not be reached regarding this agenda item. Precinct 1 Commissioner Lisa Birkman declined to comment.
Russell’s complaint states that he also sent a copy to the State Bar of Texas “as required by Rule 8.03 of the State Bar of Texas Rules Governing Professional Conduct.” The rule states, “…a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”
Gattis’ defense attorney, Martha Dickie of the Austin law firm Almanza, Blackburn & Dickie LLP, and County Attorney Duty have both filed additional motions for consideration by Judge Moore in deciding whether to let this case proceed to a trial by jury.
These two motions, as with the first motion filed by each side, focus on what legal weight should be given to the timing of the lawsuit. The lawsuit was filed after Gattis was reelected on November 4, 2010, but before his term ended December 31.
Both of these motions continue to debate complex points of law concerning whether or not the removal suit should proceed to a jury trial. The underlying legal premise being argued is known as the “forgiveness doctrine,” which wipes the slate clean each time an official is elected or reelected. In other words, actions taken in a prior term that could have resulted in removal, if timely pressed in a civil lawsuit, may not be used as a cause for removal in the new term.
It should be noted, however, that criminal offenses committed in a prior term could indeed be a cause for removal. Section 87.031 of the Texas Local Government Code states, “The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as immediate removal from office of that officer.”
See Dickie’s second motion to dismiss here.
See Duty’s response to the second motion here.
An amicus brief has been filed in support of Duty’s original petition to suspend and remove County Judge Gattis from office. The brief was filed January 14 by attorney Jeff Maurice of Hutto and Jim Stauber of Liberty Hill, representing themselves without compensation. Both are Democrats who have lost local elections. Maurice ran against Republican Precinct 4 Commissioner Ron Morrison in 2010. Stauber ran against Republican District 20 State Representative Dan M. Gattis (Judge Gattis’ son) in 2006. Stauber ran against Republican Precinct 2 Commissioner Cynthia Long in 2010.
The amicus brief notes that several citizens, including Maurice, had previously filed a complaint with County Attorney Duty urging her to investigate actions by Judge Gattis. The brief emphasizes that the public did not become aware of the allegations made in the lawsuit until after the general election in which Gattis was reelected.
The brief raises a new legal point as well: Judge Gattis had no opponent in the 2010 Republican primary and no opponent in the general election of last November.
“While the voters in Williamson County were not aware and had no way of knowing that he (Gattis) had committed acts which could subject him to removal from office, even if the voters had timely knowledge of such acts, Defendant nonetheless would have been reelected because he had no opponent in either race. Essentially, even if voters were aware of Defendant’s alleged acts (which they were not), and even if they therefore wanted to prevent him from being reelected, they were powerless to prevent his continuation in office.”
“There can be no forgiveness by a public that had no choice,” the brief states. “We respectfully argue that to allow Section 87.001 to result in dismissal of this action would fly in the face of good logic and would fly in the face of good public policy.”
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