Lawsuit Seeks to Remove Williamson County Judge

Williamson County Attorney Jana Duty previously stated she had obtained a commitment for a special prosecutor who would pursue criminal charges against Williamson County Judge Dan A. Gattis and Round Rock Attorney Mike Davis if an independent investigation provided evidence that the law had been broken.

Duty instead used an entirely different tactic and filed a 140-page civil lawsuit on December 22 (Cause Number 10-1428-C26). The lawsuit, obtained today by The Austin Bulldog, asks the court to suspend Gattis and appoint another person to perform the duties of county judge until final judgment and, upon trial by jury and a final judgment, to remove Gattis from his position as county judge.

Duty was on out of town today and did not immediately respond to an e-mail and voice mail requesting comment.

A lawyer to defend Gattis against Duty’s lawsuit has not yet been retained, Connie Watson, public information officer for Williamson County, said today. Authorization to hire an attorney to represent Gattis may be placed on the agenda for next week’s Commissioners Court meeting, she said.

Gattis issued a statement this afternoon, which says, in part, “The overwhelming majority of the allegations now being made by Ms. Duty have been examined by the Texas Attorney General’s Office, the Texas Rangers, the Williamson County District Attorney’s Office, and the Public Integrity Unit of the Travis County District Attorney’s Office … and the result has continuously been that there has been no misconduct or violations of the law of any kind.”

However, the only matter addressed in Duty’s lawsuit that actually may have been investigated, according to press reports, was the inappropriate payments made to Mike Davis for representing Judge Don Higginbotham of Williamson County Court at Law No. 3 for alleged sexual harassment.

The Austin Bulldog reported November 30 that both the Texas Rangers and the Public Integrity Unit of the Travis County District Attorney’s Office said they had discussed the matter with Williamson County District Attorney John Bradley, but both said they did not participate in any investigation. The Attorney General’s Office would not comment.

Attorney Jason Nassour of the Austin law firm of Keel and Nassour L.L.P. assisted Duty in preparing the lawsuit to remove Judge Gattis.

Nassour says, “What agency comes out and does an investigation and doesn’t issue a statement? All we have is the word of John Bradley, who says he did an investigation and found no wrongdoing.”

The five alleged causes are as follows:

Hiring Potts & Reilly—The lawsuit alleges that Judge Gattis hired Potts & Reilly L.L.P. of Austin for legal work related to Williamson County and Waste Management on or about March 23, 2007, without the necessary consent of the county commissioners court.

The firm submitted an 18-page report on June 21, 2007, according to an exhibit in the lawsuit. The commissioners court did not authorize hiring Potts & Reilly until July 10, 2007, according to a copy of the minutes included as an exhibit.

Redacting Potts & Reilly invoices—On or around August 2007, “Gattis caused an altered invoice from Potts & Reilly to be provided to the Williamson County Auditor’s Office, in an apparent attempt to hide the work done without the county’s authority by Potts & Reilly.”

On August 9, 2007, the firm submitted an invoice for $10,000 that did not indicate when the various services were rendered, according to an exhibit. The lawsuit states that when Duty questioned the auditor’s office about paying an invoice with no dates of service, the county auditor’s office then requested an invoice with dates of services included.

A new invoice, included as an exhibit, is also dated August 9, 2007, and shows that services began on June 7, 2007, and ended on June 27, 2007. All services were performed before the commissioners court authorized the firm to be hired on July 10, 2007, according to the exhibits.

Unlawful payment of Steve Mierl—In or around December 2009, “Gattis hired attorney Steve Mierl to provide legal services to … Judge Don Higginbotham using county funds. Steve Mierl provided legal services to Higginbotham from December 2009 through February 2010, which were paid for—under Gattis’s control—by Williamson County without approval of the commissioners court or compliance with the Open Meetings Act.”

The lawsuit states that Gattis instructed the county’s human resources director, Lisa Zirkle, to hire Mierl to handle the sexual harassment claim against Judge Higginbotham. Exhibits show the law firm Cornell Smith & Mierl L.L.P. of Austin subsequently billed the county on February 3, 2010, for $1,350, and on March 16, 2010, for $3,437. Both invoices were approved for payment by Zirkle, for a total of $4,787. Neither of these invoices identified the client, Higginbotham. Mierl was not legally retained by the commissioners court until July 27, 2010, exhibits show.

Unlawful hiring and paying Mike Davis—In or around January 2010, “Gattis caused attorney Mike Davis to provide legal services for … Judge Don Higginbotham without the commissioners court consent or approval. From January 2010 until May 2010, Mike Davis was paid out of county funds—at Dan A. Gattis’s control—for the legal representation of Higginbotham without the consent of the commissioners court or compliance with the Open Meetings Act.”

The lawsuit states that on January 8, 2010, Duty told Davis, while in HR director Zirkle’s office, that the commissioners court would not authorize payment to represent Higginbotham and Davis replied, “That’s fine. I’ll just work for free. It wouldn’t be the first time.” Davis subsequently billed the county for $7,665 for representing Higginbotham between January 5, 2010, and May 21, 2010.

As The Austin Bulldog reported November 30, the improper payments weren’t discovered until Duty contacted the auditor’s office. The lawsuit states that Assistant City Attorney Henry “Hank” Prejean drafted a letter for Judge Gattis to sign to request that Davis repay the $7,665. Judge Gattis inserted into that letter that Davis could instead opt to provide a credit memo, to work off the payments instead of repaying it, according to the exhibits, and Davis did so.

Davis was never authorized by the commissioners court to represent Higginbotham and he billed the county under a different case number.

The Austin Bulldog reported November 23 that the two women who complained of Higginbotham’s alleged sexual harassment filed a federal lawsuit against the county that day.

Neither Higginbotham nor Davis would comment about the lawsuit. Gattis and Davis would not comment about the payments.

Hiring and Paying Dietz & Jarrard—In or around August 2010 through October 2010, “Gattis authorized the law firm of Dietz & Jarrard to perform and be paid for the county’s legal work without consent or approval from the commissioners court and without compliance with the Open Meetings Act.”

The lawsuit states that the Round Rock law firm was retained by the commissioners court on August 17, 2010, to represent the county on several issues, but billed the county in October 2010 for matters for which they had not been retained. Judge Gattis initially approved payment of the two invoices totaling $534, the lawsuit states, but the county auditor’s office contacted Assistant County Attorney Prejean, who instructed the auditor’s office not to pay them.

All five instances detailed in the lawsuit involve improper hiring and payment for legal services not authorized by the commissioners court in a properly posted open meeting until after the fact—or not at all.

Attorney Jason Nassour, who helped Duty prepare the lawsuit to remove Gattis, says, “There is no question that law firms are billing and being paid prior to getting the commissioners court’s approval.”

Nassour gave his perspective on the removal lawsuit, saying, “Do we think Judge Gattis is a hardened felon and should go to jail? No. But should a jury be able to decide if what he does rises to incompetence or official misconduct? Yes they should.

“No one would question that there is a perceived problem,” Nassour says. “The hard evidence there is a real issue.”

Duty’s lawsuit was filed in Judge Billy Ray Stubblefield’s 26th Judicial District Court of Williamson County.

The judge in the court where a removal lawsuit is filed is required to refer the matter to the presiding regional judge to appoint a visiting judge from outside the county to hear the case. Stubblefield is also presiding judge of the Third Administrative Judicial Region covering 26 counties.

Stubblefield has requested the Texas Supreme Court to appoint a visiting judge. A spokesman for the Texas Supreme Court said today that a judge has not yet been appointed.

A heavily footnoted scholarly paper written by Amarillo-based Potter County Attorney Scott Brumley, who is also currently president of the Texas District and County Attorneys Association, underlines the gravity of removal lawsuits and the procedures.

“A removal suit seeks to undo the results of an election for reasons usually unrelated to the election itself. For that reason, the procedure cannot be invoked lightly.”

Brumley cites the Texas Supreme Court’s explanation for the purpose of removal actions:

“It reasonably appears from the constitutional and statutory provisions authorizing (a removal) proceeding that the object is not to punish the officer for his derelictions or for the violation of a criminal statute but to protect the public in removing from office by speedy and adequate means those who have been faithless or corrupt and have violated their trust.”

The visiting judge appointed by the Texas Supreme Court to hear the case is the final arbiter of whether Duty’s lawsuit will ever go to trial.

“After the petition is filed, an application must be filed seeking an order requiring issuance and service of citation,” Brumley wrote. “The trial court judge has discretion to refuse to order citation, in which case the suit is dismissed. … No appeal may be taken from the decision.”

Nassour signed an application, included in the lawsuit, for the visiting judge to find that the lawsuit appears to be legally adequate and to order that citation be served on Judge Gattis.

Brumley’s paper states that “Any time after the order for citation is issued, the judge may suspend the officer and appoint another person to perform the duties of office.” The suspension would likely be without pay, and the suspension would remain in effect during appeal of a removal judgment, he writes.

Once citation is served, the case proceeds much like any other civil trial, Brumley writes. “If removal is to be the final result of the action, it must be reached through a jury trial.”

The defendant officer may be called to testify and the right against self-incrimination may not be asserted as a blanket immunity from testifying, but on a question-by-question basis, Brumley writes.

“No question of double jeopardy is involved…so the officer may be prosecuted criminally on the same charges either before or after the removal suit,” Brumley writes.

“Nor is the state required to shoulder the heavy burden of proof applicable in criminal cases,” Brumley writes. “Because the suit is civil, the standard of proof to sustain a removal judgment is ‘preponderance of the evidence’ rather than ‘beyond a reasonable doubt.’”

Still pending is a lawsuit that County Attorney Duty filed September 30, 2010, alleging that the Williamson County Commissioners Court violated the Texas Open Meetings Act and the Texas Local Government Code by amending the budget to take more than $100,000 from Duty’s budget to pay for an attorney who would report directly to Judge Gattis. Assistant County Attorney Hal Hawes was taken out of Duty’s office to fill the newly created position.

Nassour said that lawsuit (Case No. 10-1107-C368) is currently pending before the Third Court of Appeals, and briefs have not yet been filed.

The court rubbed more salt in Duty’s budget wound by taking $3,000 out of her budget in early December to pay for a sanction levied by a judge against an assistant county attorney, who is now deceased.

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