Motions Fly as Defense and Prosecution Maneuver in County Judge Removal Lawsuit
Martha S. Dickie, the lawyer for Williamson County Judge Dan A. Gattis, and Williamson County Attorney Jana Duty traded the first punches in the legal fight to determine whether Gattis is removed from office.
These motions will be considered by Judge Rick Morris of the 146th Judicial District Court of Bell County, who was appointed by the Texas Supreme Court to preside in this case. Morris is the final arbiter of whether this lawsuit is put before a jury. He is empowered to dismiss the lawsuit and if he does his decision cannot be appealed.
Duty’s 140-page civil lawsuit filed December 22 (Cause Number 10-1428-C26) alleges “incompetence and official misconduct” for five instances of hiring and paying outside lawyers without obtaining approval of the Williamson County Commissioners Court in a properly posted open meeting. (See The Austin Bulldog report of December 29 for a summary of each alleged offense.)
The first motions 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, but before his term ended December 31.
The underlying legal premise being argued in these motions 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.”
Motion and counter motion
The motion to dismiss filed yesterday by Martha S. Dickie of the Austin law firm Almanza, Blackburn & Dickie LLP cites Texas Local Government Code Section 87.001. That section states, “An officer may not be removed under this chapter for an act the officer committed before election to office.” The motion asserts the same rule applies to reelection, and notes that each allegation in the lawsuit occurred before Gattis was reelected November 4, 2010.
“Therefore, the original petition fails as a matter of law and this Court should refuse to issue the order for citation and dismiss the case at the cost of Jana Duty,” the motion states.
Dickie’s motion also alleges that the five grounds for removal stated in this lawsuit “contain significant misstatements of the actual facts,” but does not identify the alleged misstatements.
County Attorney Duty today filed a response to the motion to dismiss that asserts there’s more to the forgiveness doctrine, “that removal may be predicated upon misconduct during a prior term if such misconduct was … unknown to the public.”
Duty’s motion cites case law, stating, “Most importantly, where the public official seeks to hide beneath the penumbra of the forgiveness doctrine, the burden lies on him to establish that the electorate, when voting the official into office, knew that such acts had been in fact committed by him.”
Duty’s motion cites the date of each of the five alleged offenses and notes that in each case that news accounts that informed the public of these events were published after the November 4 election, in which Gattis won his second term. Hence, citizens were not made aware of the alleged offenses in sufficient time to consider these matters before casting their votes.
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