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Posted Monday January 17, 2011 8:19pm

Complaint Comes On Heels of Lawsuit
to Remove Williamson County Judge Gattis


Lawyer Files Complaint on County Attorney Duty
as Removal Lawsuit Awaits Go-No Go Decision

by Ken Martin
© The Austin Bulldog

Attorney Kerry E. Russell of the Georgetown law firm Russell & Rodriguez LLP filed a criminal complaint with Williamson County District Attorney John Bradley, alleging that Williamson County Attorney Jana Duty committed a Class A misdemeanor offense through “intentional destruction of a local government record.”

 Jana DutyJana Duty“...I am requesting that you file charges and prosecute Ms. Duty for this violation,” Russell states in his January 13 letter addressed to Bradley. The record referred is a memorandum dated June 1, 2008, that Duty sent to three Williamson County Court at Law judges. A copy of that memorandum, with gaps in the text indicating that some of the content is missing, is included Attachment B to Russell’s complaint.

Dan A. GattisDan A. GattisCounty Attorney Duty said Russell’s criminal complaint is without merit and was lodged as a means of retaliating against her in response to her civil lawsuit to suspend and remove Williamson County Judge Dan A. Gattis from office for alleged incompetence and official misconduct. The lawsuit alleges five instances of incompetence and official misconduct by the judge, who issued a statement indicating there has been no misconduct or violations of law. The Austin Bulldog reported on that lawsuit December 29.

Rick MorrisRick MorrisThe removal lawsuit is pending a decision by Judge Rick Morris of the 146th Judicial District Court of Bell County about whether to have Judge Gattis served citation. If Morris decides yes, the lawsuit will proceed. If he decides no, then the lawsuit dies and that decision may not be appealed. Information about Judge Morris was published by The Austin Bulldog January 3.

Whether Russell’s complaint was filed as retaliation for the lawsuit cannot be determined but circumstances indicate that’s possible. The Williamson County Sun reported yesterday that Gattis said he gave Russell a copy of the letter. Gattis also told the Sun there needs to be an investigation of possible misconduct by Duty, but that he is not involved and did not ask Russell to pursue it.

John BradleyJohn BradleyDistrict Attorney Bradley told the Sun he has a duty to evaluate the complaint.

Duty thinks otherwise. She says the statute of limitations for a Class A misdemeanor—if one was actually committed—is two years. The Code of Criminal Procedure, Article 12.02(a), states “An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.” Duty’s memorandum was dated June 1, 2008, more than two and a half years ago.

“Bradley should have said he looked at the complaint and said there’s nothing he can do because the statute of limitations has run,” Duty says.

Alleged offense complicated

The regulations pertaining to how long a record must be kept under the laws of Texas are of paramount importance in weighing Russell’s complaint against Duty.

The key question is how long was Duty required by law to keep the memorandum she wrote June 1, 2008?

No county-wide policy—Williamson County has no county-wide records retention policy, according to Connie Watson, Williamson County’s public information officer. “Elected officials are the official keepers of their own records....” she wrote in an e-mail to The Austin Bulldog October 4, 2010, in response to an unrelated open records request. Section 203.001 of the Local Government Code states, “Each elected county officer is the records management officer for the records of the officer’s office.”

No county attorney policy—Duty says that the county attorney’s office does not have a written records retention policy.

State regulations apply—In the absence of local records retention policies, Section 441.158 of the Government Code provides that the Texas State Library and Archives Commission shall issue records retention schedules that have the same effect as if prescribed by law. Local Schedule GR sets mandatory minimum retention periods for records that are usually found in all local governments.

Complaint alleges five-year retention required—Russell’s complaint states that Duty’s memorandum should be classified under Section 1000-26(a) of Local Schedule GR as “policy and program development” and therefore must be retained for five years. This category involves “correspondence and internal memoranda pertaining to the formulation, planning, implementation, modification, or redefinition of the policies, programs, services, or projects of a local government.”

Duty says retention only two years—Duty says she believes the memo should be classified under Section 1000-26(b) as “administrative” and therefore needs to be retained for two years. This category involves “correspondence and internal memoranda pertaining to or arising from the routine administration or operation of the policies, programs, services, and projects of local government.”

 

Related issues

Russell’s complaint accuses Duty of destroying the memorandum.


But Duty wrote in the memo, “I will not maintain a copy of this letter so that it will not have to be disclosed in any future PIA (Public Information Act) request.”

Bill Aleshire, a former Travis County judge, is an attorney who volunteers with the Freedom of Information Foundation of Texas to provide media outlets with advice on legal matters. Aleshire says a big issue in resolving this complaint against County Attorney Duty “is whether ‘failing to keep a copy’ is a violation, as opposed to ‘destroying a record.’

“I think these officials have a statutory duty to ‘preserve’ certain records but the criminal penalty does not appear to apply to failing to ‘create and maintain a copy’ as opposed to the prohibition against ‘destroying’ a record,” Aleshire says.

Duty wrote the memo in response to the county court at law judges’ letter to County Judge Gattis on May 1, 2008 (Attachment A to Russell’s complaint) asking for the appointment of private legal counsel to replace Assistant County Attorney Stephen Ackley.

Making matters worse for her, Duty says, the county court at law judges’ letter was leaked to her opponent in the 2008 general election, Democrat Jaime Lynn, who was using it against her in the campaign.

She was steamed.

“That letter was written in anger,” she says of her June 1 memo to the county court at law judges. “I fired off an ugly letter to them and here it comes back to bite me two and a half years later.”

Duty says she included the statement about not maintaining a copy of the memo because the document contained sensitive information about possible misconduct on the part of some of the county court at law judges.

“That letter contained embarrassing information on the judges and I didn’t want it to fall into the wrong hands,” she says.

One of the sensitive matters in the memo that is not included in the incomplete version of it attached to the complaint, Duty says, concerned allegations that Judge Don Higginbotham of County Court at Law No. 3 was sexually harassing women who worked in his office. Two of those women later filed an EEOC complaint and then a federal lawsuit against Higginbotham for sexual harassment, Kimberly Lee and Sharon McGuyer v. Williamson County, Texas
, as reported by The Austin Bulldog November 23, 2010.
 
Attorney Aleshire pointed out that the original record of Duty’s memo is not a piece of paper—it’s the electronic file created on the computer she used to write it.

Duty says she wrote the memo on the desktop personal computer in her county office, but she doesn’t recall if she deleted the file after writing it. The county’s information technology department replaced that computer about a year ago with a new one, she says, and the installation included transferring the files from her old computer. She says she isn’t sure if that file is on her new computer. She says she may hire a computer expert to see if the file can be recovered.

Commissioners to file grievance, too?

In addition to filing a criminal complaint with the district attorney, Russell sent a copy of his complaint to Judge Gattis for the Commissioners Court.

Cynthia LongCynthia LongThe agenda for tomorrow’s meeting of the Williamson County Commissioners Court includes Item 27 submitted by Precinct 2 Commissioner Cynthia Long to “Discuss and take appropriate action regarding the Commissioners Court filing a grievance complaint with the State Bar Association (sic) against the Williamson County Attorney.” The Commissioners Court meeting is scheduled to begin at 9am in the Commissioners Courtroom, 710 Main St., in Georgetown.

Commissioner Long could not be reached regarding this agenda item. Precinct 1 Commissioner Lisa Birkman declined to comment.

Russell’s complaint states that he also sent a copy to the State Bar of Texas “as required by Rule 8.03 of the State Bar of Texas Rules Governing Professional Conduct.” The rule states, “...a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”

Removal lawsuit update

Gattis’ defense attorney, Martha Dickie of the Austin law firm Almanza, Blackburn & Dickie LLP, and County Attorney Duty have both filed additional motions for consideration by Judge Moore in deciding whether to let this case proceed to a trial by jury.

These two motions, as with the first motion 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, 2010, but before his term ended December 31.

Both of these motions continue to debate complex points of law concerning whether or not the removal suit should proceed to a jury trial. The underlying legal premise being argued 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.”

See Dickie’s second motion to dismiss here.

See Duty’s response to the second motion here.

Citizens weigh in

An amicus brief has been filed in support of Duty’s original petition to suspend and remove County Judge Gattis from office. The brief was filed January 14 by attorney Jeff Maurice of Hutto and Jim Stauber of Liberty Hill, representing themselves without compensation. Both are Democrats who have lost local elections. Maurice ran against Republican Precinct 4 Commissioner Ron Morrison in 2010. Stauber ran against Republican District 20 State Representative Dan M. Gattis (Judge Gattis' son) in 2006. Stauber ran against Republican Precinct 2 Commissioner Cynthia Long in 2010.

The amicus brief notes that several citizens, including Maurice, had previously filed a complaint with County Attorney Duty urging her to investigate actions by Judge Gattis. The brief emphasizes that the public did not become aware of the allegations made in the lawsuit until after the general election in which Gattis was reelected.

The brief raises a new legal point as well: Judge Gattis had no opponent in the 2010 Republican primary and no opponent in the general election of last November.

“While the voters in Williamson County were not aware and had no way of knowing that he (Gattis) had committed acts which could subject him to removal from office, even if the voters had timely knowledge of such acts, Defendant nonetheless would have been reelected because he had no opponent in either race. Essentially, even if voters were aware of Defendant’s alleged acts (which they were not), and even if they therefore wanted to prevent him from being reelected, they were powerless to prevent his continuation in office.”

“There can be no forgiveness by a public that had no choice,” the brief states. “We respectfully argue that to allow Section 87.001 to result in dismissal of this action would fly in the face of good logic and would fly in the face of good public policy.”
 
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit. The Austin Bulldog has many investigative projects waiting to be funded. You can bring these investigations to life by making a tax-deductible contribution.

 

Comments   

 
+7 #1 Catherine W. 2011-01-18 02:00
I have a few questions for Mr. Gattis and Ms. Long. After all, we certainly wouldn’t want Mr. Gattis or Ms. Long to look vindictive and desperate as this makes them appear.

1. Did Dan Gattis also request an investigation into his old friend Judge Don Higginbotham for the allegation of sexual harassment?

2. Did Mr. Gattis file a complaint with the judicial ethics commission against Don Higginbotham?

3. Did Dan Gattis request an investigation into his old friend Mike Davis for his role in improperly billing Williamson County?

4. Did Dan Gattis file a complaint with the bar against his old friend Mike Davis?

Ms. Long, these are for you and Mr. Russell.

1. Is Kerry Russell going to file a complaint with District Attorney John Bradley against Don Higginbotham for official oppression since he stands accused of sexually harassing two employees?

2. Is Kerry Russell going to file a formal complaint against Don Higginbotham with the judicial ethics commission as well?

3. Is Kerry Russell going to file a formal complaint with the bar against Mike Davis for "doctoring" invoices and illegally billing Williamson County?

4. Is Kerry Russell going to file a formal complaint with District Attorney John Bradley against the County Court at Law Judges for destroying or not retaining the letter Duty sent to them?

5. Is Kerry Russell going to file a formal complaint with the Judicial Ethics Commission against the County Court at Law Judges for destroying or not retaining the letter Duty sent to them?

6. Why did Dan Gattis never turn the letter over to DA John Bradley since he stated he's had it for some time?

7. Why did Dan Gattis give the letter to Kerry Russell, someone who has made over $65,000.00 from the county tax payers in a one year span. The same person who has donated thousands and thousands of dollars to the Commissioners and County Judge campaigns.

8. Are you, Ms. Long, going to call for the investigation of Kerry Russell, Dan Gattis Sr., the County Court at Law Judge, or their staff who redacted and released confidential information? (see statutes below)
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+7 #2 Catherine W. 2011-01-18 02:02
One: Whoever redacted the letter is in violation of the first cited statute below.

Two: Whoever released it is in violation of the second. It was labeled confidential and was Attorney / Client privileged info since the judges were Duty’s clients.

Third: Gattis is also in violation of the second since he distributed a private document from an attorney to her clients. Kerry Russell as well.

All three judges have to relinquish the attorney / client privilege. If one gave it up without the others permission, they are in violation. It takes all clients to waive the privilege.

Sec. 552.351. DESTRUCTION, REMOVAL, OR ALTERATION OF PUBLIC INFORMATION. (a) A person commits an offense if the person wilfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine of not less than $25 or more than $4,000;
(2) confinement in the county jail for not less than three days or more than three months; or
(3) both the fine and confinement.
(c) It is an exception to the application of Subsection (a) that the public information was transferred under Section 441.204.

Sec. 552.352. DISTRIBUTION OR MISUSE OF CONFIDENTIAL INFORMATION. (a) A person commits an offense if the person distributes information considered confidential under the terms of this chapter.
(a-1) An officer or employee of a governmental body who obtains access to confidential information under Section 552.008 commits an offense if the officer or employee knowingly:
(1) uses the confidential information for a purpose other than the purpose for which the information was received or for a purpose unrelated to the law that permitted the officer or employee to obtain access to the information, including solicitation of political contributions or solicitation of clients;
(2) permits inspection of the confidential information by a person who is not authorized to inspect the information; or
(3) discloses the confidential information to a person who is not authorized to receive the information.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine of not more than $1,000;
(2) confinement in the county jail for not more than six months; or
(3) both the fine and confinement.
(c) A violation under this section constitutes official misconduct
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+7 #3 Catherine W. 2011-01-18 02:03
9. And last but not least, are you going to have District Attorney John Bradley launch a criminal investigation against each of you for violating the County Purchasing Act? Hiring outside attorneys requires certain protocol you did not follow. You violated the law which also that constitutes official misconduct.
You tout high ethics. The public would be disappointed if you did not lead by example. If not, then you will be viewed as retaliatory as Dan Gattis and just a “good ole girl” covering for her friend.
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+5 #4 Emily T. 2011-01-18 02:22
Can we be any more trivial?
It appears the complaint Gattis had Russell file was not well thought out. Now the CCL Judges are in a heap thanks to Gattis' attempt to soil Duty. Someone should tell Gattis that revenge is best served cold.
PS, Ms. Duty, in the future use the 24 hour rule. We all have fired off an email or said something we wish we could take back. Don't let the good ole boys beat you down. You are obviously a strong woman and I commend you. I support you and will continue to do so. Just do not get in their game of tit for tat or it will diminish your mission. They look trivial and childish. Stay the course and you will be fine
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+4 #5 Eye on Wilco 2011-01-19 01:31
It's the same old song with this group. They tried the same thing with those deputies who sued James Wilson and the County. Mike Davis represented the County in this suit. They couldn't slay the deputies's dragon so they started using smoke and mirrors. Of course the County lost that battle. The 5 deputies, Griffin, Jim Wilson, Ogden, 2 ex-civilian employees, etc. didn't stand up to these people for nothing. There is a gross misjustice going on with Bradley and Gattis. What get's me, up until AustinBullDog, that they could openly keep their game going for this long.... even with those who faught them before Duty. Keep up the GREAT work BullDog. You don't know who much this means!
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+2 #6 JK 2011-01-20 01:20
She didn't keep a letter from two and a half years ago? I say we flog her at the post. Maybe tar and feather her. How ridiculous.
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+2 #7 JK 2011-01-20 19:45
I read this on the statesman blog. Makes sense to me. Why hasn't the DA looked into this? All of those commissioners violated this law by hiring those lawyers without approval.

Sec.A262.034.A CRIMINAL PENALTIES.A (a)A county officer or employee commits an offense if the officer or employee intentionally or knowingly makes or authorizes separate, sequential, or component purchases to avoid the competitive bidding requirements of Section 262.023. An offense under this subsection is a Class B misdemeanor. (b)A county officer or employee commits an offense if the officer or employee intentionally or knowingly violates Section 262.023, other than by conduct described by Subsection (a). An offense under this subsection is a Class B misdemeanor. (c)A county officer or employee commits an offense if the officer or employee intentionally or knowingly violates this subchapter, other than by conduct described by Subsection (a) or (b). An offense under this subsection is a Class C misdemeanor. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1250, Sec. 12, eff. Sept. 1, 1989. Sec.A262.035.AA REMOVAL; INELIGIBILITY.A (a)AAThe final conviction of a county officer or employee for an offense under Section 262.034(a) or (b) results in the immediate removal from office or employment of that person. (b)For four years after the date of the final conviction, the removed officer or employee is ineligible: (1)to be a candidate for or to be appointed or elected to a public office in this state; (2)to be employed by the county with which the person served when the offense occurred; and (3)to receive any compensation through a contract with that county. (c)This section does not prohibit the payment of retirement or workers ’ compensation benefits to the removed officer or employee. Added by Acts 1989, 71st Leg., ch. 1250, Sec. 13, eff. Sept. 1, 1989.
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+4 #8 Mason G. 2011-01-21 02:49
Here's my whole problem with this. Point is, it's not their job as Commissioners to play the “ethics police”. If I think Jana Duty is "unethical", I will vote against her in the next election. Jana Duty on the other hand has an obligation as County Attorney to prosecute criminals and if they so happen to be elected officials, to also remove them. These Commissioners seem to think their sphere of authority and "job descriptions" extend farther than it really does. This is making my Commissioner look very vindictive.
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