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 Commissioner Daugherty Won’t Be Prosecuted

Prosecutor filed motion to dismiss criminal complaint
over alleged violations of Texas Public information Act

by Ken MartIn
© The Austin Bulldog 2015
Posted Friday October 23, 2015 3:00pm

Gerald DaughertyGerald DaughertyThe 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 BunchBill BunchBill 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

Billy Ray StubblefieldBilly Ray StubblefieldMorgan, 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

Litigation Challenges Open Government Laws: Attorneys criticize criminal penalties and public access to elected officials private e-mail accounts, April 24, 2013

Social Media’s Impact on Open Government: Few government organizations have dealt with how Facebook, Twitter use affects compliance, April 23, 2013

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