Prosecutor filed motion to dismiss criminal complaint over alleged violations of Texas Public information Act
The special prosecutor who investigated a criminal complaint against Travis County Precinct 3 Commissioner Gerald Daugherty told The Austin Bulldog he has presented to the presiding judge a motion to dismiss the case and a proposed order.
“There’s no evidence of probable cause,” said Leslie B. Vance of Marble Falls, the former district attorney handling the complaint.
The criminal complaint filed March 17, 2014, alleged that Daugherty violated sections of the Texas Public Information Act through “willful destruction of public information and … criminally negligent failure and refusal to give SOS Alliance, as requestor, access to public information.”
Bill Bunch, executive director of the Save Our Springs Alliance, who signed the criminal complaint, strongly disagrees with Vance’s decision to seek dismissal.
“Suggesting there was no violation is rather absurd in this case when Commissioner Daugherty admitted under oath that he deleted e-mails, deleted text messages, and did not produce some of the documents until months after the request because he overlooked them,” Bunch said, referring to Daugherty’s sworn deposition taken in a related civil case, which is still pending.
Vance said, “He didn’t do anything that violates the law, there’s been no crime committed by him. That’s why the civil case has all but been dismissed—and it’ll be dismissed too.”
The civil case was argued before District Judge Stephen Yelonosky July 13, as reported by The Austin Bulldog. Both Travis County and the SOS Alliance have filed additional briefs as recently as October 6 that Yelonosky will consider in deciding jurisdictional issues.
Calls seeking comment from Commissioner Daugherty and his criminal defense attorney, Randy Leavitt, were not immediately returned.
The argument for prosecution
Bunch said, “The civil part of the statute is clearly aimed at remedy to get the documents, and what courts are saying is that when the documents have either been produced or destroyed, the court’s jurisdiction is very limited.
“That’s no reflection on the criminal liability if records were destroyed or not produced—and Daugherty admitted to these things,” Bunch said. “To point to the civil case as being dismissed is somehow indicative of the criminal case is really not correct.”
Bunch’s also cited Texas Public Information Act Section 552.353(f), which states that if “criminal negligence” is involved in the failure or refusal to provide access to public information it would constitute “official misconduct.”
“The standard for official misconduct under the statute is gross negligence, Bunch said. “Here (in Daugherty’s case) you have intentional misconduct and gross negligence. So to me it doesn’t add up” that the complaint should be dismissed.
Prosecutor alone has power
Nevertheless, it’s well understood by everyone familiar with how criminal justice works that a prosecutor’s discretionary powers are both wide and deep.Vance’s decision not to prosecute—if approved by the judge—is final.
Vance noted that “now at least” Travis County has a policy to ensure that county business conducted on private e-mail accounts will be retained and subject to release if warranted under the Act.
Commissioner Daugherty initiated that policy change, which was adopted by the Travis County Commissioners Court March 24, 2015, and it pertains to how the county should operate going forward. It has no direct bearing on the allegations stated in the SOS Complaint.
At this point, if Judge James E. Morgan signs the proposed order that Vance provided, that will end the inquiry into the SOS Alliance’s criminal complaint.
Case decided outside Travis County’s jurisdiction
Morgan, who retired from the 220th Judicial District Court that had jurisdiction over Bosque, Comanche, and Hamilton counties, was assigned by Judge Billy Ray Stubblefield of Georgetown to the Daugherty case. More recently he was assigned to hear cases related to the motorcycle gang shootout at Waco’s Twin Peaks restaurant.
Vance was appointed “county attorney pro tem” to investigate the SOS Alliance’s complaint after Travis County Attorney David Escamilla was recused because the Travis County Commissioners Court controls his budget.
Escamilla played no part in the criminal case, although his office is defending Daugherty in the civil lawsuit still pending. He said he was not aware of Vance’s plan to dismiss the criminal case.
“When a case is sent on,” Escamilla told the Bulldog, “it’s best I stay out of it, and I have.”
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.
Link:
SOS Alliance Criminal Complaint re: Travis County Commissioner Gerald Daugherty
Related Bulldog coverage:
Daugherty Wins SOS Round One: Judge Yelonosky rules mostly in favor of commissioner but leaves room for further action, July 27, 2015 (This story includes links to records pertaining to the civil lawsuit.)
Commissioner Daugherty’s Criminal Case Delayed: Statute of limitations will expire in May, attorney investigating alleged offense had health issues, February 23, 2015
Criminal Complaint Hits Commissioner Daugherty: Save Our Springs Alliance files complaint a day before vote to fund State Highway 45 project, March 17, 2014
Bulldog Open Records Lawsuit Continues: Key issue is whether it is permissible to redact officials’ private e-mail addresses, June 7, 2013
Social Media’s Impact on Open Government: Few government organizations have dealt with how Facebook, Twitter use affects compliance, April 23, 2013
City Hosts Open Government Symposium: Lawyers attending for education credits abound, much of the day had little to do with city practices, April 22, 2013
City Spent $157,636 to Defend Council Violations: Payments for private lawyers for mayor, council members in criminal investigation, April 8, 2013
City Hosting Open Government Symposium: Follows county attorney’s investigation of City Council open meetings violations, March 19, 2013
Open Meetings Investigation a Year Old Today: County attorney says investigation of whether City Council violated Open Meetings Act is still ongoing, January 25, 2012
Employee E-Communication Policy Drafts Show Each Revision Weakened Rules: Policy that was near fully compliant on first draft crippled by changes, September 13, 2011
Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues: $200,000 spent on attorneys so far and no end in sight, June 24, 2011
Council Staff Training Lapsed from 2007 Until Lawsuit Filed: Only one current staff member had taken training, city records show, April 20, 2011
Council Member Bill Spelman Goes On the Record About Private Meetings, Fifth in a series of recorded question and answer interviews, February 20, 2011
Council Work Sessions Stir Concern Over Tying Up Staff for Two Meetings: City manager presents summary of options for council consideration, February 15, 2011
Mayor Claims Lawyers Okayed Private Meetings But City Won’t Release Proof: City pledges cooperation with county attorney’s inquiry but is withholding these key documents, February 13, 2011
County Attorney Asks City of Austin for Records Related to Open Meetings Complaint: Former Mayor Wynn and Former Council Member McCracken included, February 9, 2011
Council Member Randi Shade Goes On the Record About Private Meetings: Fourth in a Series of recorded question-and-answer interviews, February 9, 2011
City of Austin Commits $159,000 for Advice in County Attorney’s Open Meetings Act Inquiry: Three attorneys hired for $53,000 each, February 7, 2011
Council Member Chris Riley Goes On the Record About Private Meetings: Third in a Series of recorded question-and-answer interviews, February 6, 2011
Council Member Sheryl Cole Goes On the Record About Private Meetings: Second in a Series of recorded question-and-answer interviews, February 3, 2011
Mayor Pro Tem Mike Martinez Goes On the Record About Private Meetings: First in a series of recorded question-and-answer interviews, February 2, 2011
Will I Said Come On Over Baby, Whole Lot of Meetin’ Goin’ On: Council Member Chris Riley tops the chart with 256 private meetings, January 30, 2011
County Attorney Reviewing Complaint, Brian Rodgers Will Not Run for Council, January 25, 2011
Open Meetings, Closed Minds: Private meetings to discuss public business shows Austin City Council may be violating Open Meetings Act, January 25, 2011
