Statute of limitations will expire in May, attorney investigating alleged offense had health issues
A court hearing scheduled last Thursday on the criminal complaint against Travis County Precinct 3 Commissioner Gerald Daugherty was not held.
The doors of the designated 390th Judicial District Court were locked. A judicial aide said the attorney investigating the complaint and assigned judge had agreed not to proceed with the criminal case until a related civil lawsuit filed against Daugherty was resolved.
Leslie B. Vance of Marble Falls was appointed “county attorney pro tem” to investigate the complaint filed 11 months ago by William G. “Bill” Bunch of the Save Our Springs Alliance. Travis County Attorney David Escamilla was recused because the Travis County Commissioners Court controls his budget. Judge James E. Morgan, retired from the 220th Judicial District Court with jurisdiction over Bosque, Comanche, and Hamilton counties, was assigned to hear the case.
The complaint, supported by Daugherty’s testimony in a deposition in a related civil case filed November 12, 2013, claimed that Daugherty had violated the Texas Public Information Act by not turning over his correspondence related to the proposed controversial State Highway 45 Southwest.
At the time the complaint was filed, Daugherty told The Austin Bulldog it was “nothing more than a rehash of the allegations they brought in the civil suit. I don’t put anything past Bill Bunch or the SOS organization to thwart the will of the people,” he said, referring to efforts to halt construction of SH45 SW.
Bunch, executive director of the Save Our Springs Alliance, was also at the 390th Judicial District Court for the Thursday hearing and was disappointed to learn it would not be held.
Bunch said, “The Texas Public Information Act has distinct civil and criminal remedies. The (civil and criminal) cases are separate. My understanding is that Judge (Billy Ray) Stubblefield (who assigned Vance Judge Morgan to the case) referred our complaint for prosecution. The documents we provided in our complaint, including Commissioner Daugherty’s sworn testimony, were sufficient to file charges and take to a jury. We did most of the work upfront. So I don’t understand the lack of action.
“Now, we are told, second hand, that prosecution won’t happen, by an agreement between the judge and the prosecutor, until the civil case has been resolved. That may mean until after the statute of limitations have run. As complainant and victim of Commissioner Daugherty’s blatant and severe violations of the Public Information Act, SOS Alliance will research our options on these new circumstances.”
Daugherty’s defense attorney, Randy Leavitt, did not return a Friday afternoon call seeking comment.
Vance had health problems
In a telephone interview Friday afternoon, Vance, who has previously served as a district attorney in two different districts, said his investigation of the complaint had been delayed. “Unfortunately, about the time I was ready to make a decision, I had a stroke in December.” He said that left him temporarily unable to use his left leg. “I had another episode in January.”
“I haven’t decided what I’m going to do. I asked the judge if it would be all right to deal with this after the civil lawsuit was resolved.”
Vance said he would use information from the civil suit to decide if the alleged offense rises to the level of criminal conduct.
The alleged criminal offense was pegged to the SOS public information request of May 10, 2013. Asked if potential prosecution might be hampered by the statute of limitations that expire in May 2015, Vance said, “That’s not a problem” and added that “deferred prosecution could be considered” if necessary.
“I don’t want this to be a political case and want to be sure everything is like it needs to be before filing anything,” Vance said.
Vance said that because he is getting information from both sides of the civil case he is saving Travis County money by not having to hire an investigator or obtaining search warrants. “I want this to be based on the facts of the case and not anything else.”
Bunch said he had given Vance information from the civil suit early on, including depositions and early discovery responses, but since then Vance had not responded to his e-mails or phone calls.
The criminal complaint
The criminal complaint states that Daugherty admitted in the deposition that he uses his personal cell phone account for county business, that he used a laptop computer for county business and donated the computer without saving messages on it, that he deleted messages from his Travis County e-mail address relevant to SH45, and that he deleted text messages referencing county business.
The deletion of messages required to be kept is permissible only if copies are stored elsewhere and made available in response to a public information request, subject to the exceptions provided for in the Texas Public Information Act.
The Local Government Records Act establishes a retention schedule for such records. The SOS Alliance claims Daugherty, who is the official records custodian for his office, has not retained the records for the required two years.
Section 552.351 of the Texas Public Information Act states, “a person commits an offense if the person willfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information. An offense under this section is a misdemeanor publishable by: a fine of not less than $25 or more than $4,000; confinement in the county jail for not less than three days or more than three months; or both the fine and confinement.”
In 2013 the Texas Legislature passed Senate Bill 1368 and the governor signed it into law in June.
The bill requires that in responding to public information requests public officials must provide e-mails about government business that are sent or received on private devices unless the subject matter otherwise qualifies to be withheld. In other words, electronic communications relating to official business will be accessible by law to the public, even if sent from or received on a private e-mail account or mobile device.
Daugherty was elected county commissioner in November 2012 and took office in January 2013. He previously served as Precinct 3 commissioner 2002-2008.
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