The Morton case in which a Williamson County man’s potentially wrongful conviction for his wife’s murder may have unjustly kept him in prison for nearly 25 years continues garnering well-deserved attention, but it’s not the only Williamson County legal dispute suggesting misconduct on the part of government officials. Another case involves the State Bar of Texas filing a lawsuit against County Attorney Jana Duty. As some officials are framing it as a state-initiated action, taxpayers need to understand the history of this lawsuit because it’s costing them money and could greatly impact the future workings of Williamson County politics.
On Sept. 12, the State Bar of Texas did indeed file a lawsuit against Duty alleging multiple violations of the ethics codes which govern attorneys. This suit follows the Bar’s prescribed process and exists only because of grievances filed in February by the Williamson County Commissioners Court against Duty.
Despite the Commissioners Court requesting a private hearing on the matter, Duty is exercising her right to a public trial explaining the diverging approaches as follows:
The members of the Commissioners Court requested a private hearing. They want the hearing to be private, so the true facts of this case and the evidence will be presented behind closed doors and will remain secret. By my election to proceed in District Court, the public will be given the opportunity to hear and see all of the evidence, not just the limited portions that members of the Commissioners Court want them to hear.
Duty is personally funding her defense while Texas taxpayers support the Bar’s activities and Williamson County taxpayers pay for the Commissioners Court’s hiring of Randy Leavitt, a $300-per-hour Austin criminal defense attorney, to represent “the county” as both legal counsel and as a “spokesman to the press.”
Nineteen out of 24 original claims have been dismissed. The five remaining charges allege:
January 2008 – Duty created and delivered a local governmental record to Williamson County Court at Law judges and subsequently destroyed it, violating open record laws. Spring 2009 – Duty failed to inform the Commissioners Court of a labor complaint by a county employee. She additionally failed to inform commissioners that she authorized the hiring of outside counsel. In or around January 2010 – Duty learned a sexual harassment complaint had been filed by two county employees against a County Court at Law judge. She neither informed commissioners that she was a potential witness in the matter nor advised her intentions to gather statements or evidence regarding the allegations. October 2010 – Duty revealed to a Williamson County Sun reporter a confidential statement made during an executive session regarding a legal matter. December 2010 – In a petition for removal of County Judge Dan Gattis from office, Duty revealed information obtained during an executive session of the Commissioners Court and attached documents containing confidential attorney-client information.
Since the February grievance filing, Duty has denied wrongdoing and termed the action “politically motivated harassment.” A case can be made for that point of view as the last year has brought a public escalation of dissension between Duty and the commissioners.
In October 2010, Duty filed a lawsuit in response to the Commissioners Court moving $101,801 out of her budget so as to establish a separate legal advisor’s position under their control. The County Attorney’s role as legal advisor adds taxpayer accountability by virtue of being an elected position. This act to replace Duty removed any independent oversight, but despite concerns, an unelected county employee, Hal C. Hawes, began serving as the court’s legal advisor. Hawes has now also announced his candidacy to run against Duty in the 2012 primary.
The lawsuit was upheld by a visiting judge in Williamson County’s 368th District Court, but upon a taxpayer-funded appeal by the Commissioners Court, the 3rd Court of Appeals issued a late August ruling that Duty had no right to bring a lawsuit against the Commissioners Court over how the court hired its own lawyer. Though Duty contended the commissioners had violated state law in Hawes’ hiring, in a blow to government accountability the court said she had no standing to file such a suit as “in essence, she is the county when acting in her official duties and only the commissioners court has power to decide when the county can bring suit.”
December 2010 also brought Duty filing a lawsuit seeking to remove County Judge Dan Gattis from office based on allegations of incompetence and official misconduct. In January, Bell County District Judge Rick Morris declined reviewing the case merits and instead dismissed the lawsuit based on a motion filed by Gattis attorney Martha S. Dickie calling for invocation of the “forgiveness doctrine,” a Texas Local Government Code section that states “An officer may not be removed under this chapter for an act the officer committed before election to office.” Dickie asserted the same rule applies to re-election and noted that each of the lawsuit’s allegations occurred prior to Gattis’ November 2010 re-election.
Both of Duty’s lawsuits appear rooted in concerns about illegal and other inappropriate acts contrary to taxpayer interests. And neither suit was dismissed because the allegations were deemed without merit.
In that light, the State Bar of Texas lawsuit provides interesting new opportunity as some of the remaining charges overlap with issues and conduct left unaddressed in Duty’s prior suits. Duty’s choice to pursue a public hearing will prompt discovery in which County Commissioners Court members will be required to answer questions. It also will mandate requests for relevant documents substantiating the allegations and oral depositions in which participants testify under oath.
The Supreme Court of Texas has appointed the Judge Fred Tinsley of the 195th Judicial District Court of Dallas County to preside over the hearing. Depositions could start in October.
Meanwhile, Williamson County taxpayers should prepare for a shot of increased government transparency in which they get a substantive view regarding the rights, wrong, honest and not so of their county government.
However it comes down, this pending action should be a 2012 election issue. The legal industry loves to delay and distract. Any such efforts should become part of this story. While “confidentiality” will be claimed regarding specifics of the action, obstruction, document release game-playing, contrived scheduling conflicts, technicalities or any other legal gamesmanship “tricks” used to impede its process should be exposed so that Williamson County taxpayers can factor such moves into their voting decisions.
This statement has been said before and it bears repeating. Should the State Bar proceeding move forward in an unobstructed fashion, Duty’s public trial request will be a victory assisting voters to make informed decisions regarding the future of their county government.