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 Daugherty’s Civil Case to Continue

SOS Alliance also seeks a new special prosecutor and
judge to reinstate criminal complaint against Commissioner

by Ken Martin
© 2015 The Austin Bulldog
Posted Tuesday January 5, 2016 2:15pm

Gerald DaughertyGerald DaughertyThe Save Our Springs Alliance won a victory in the form of a December 10, 2015, ruling by District Judge Stephen Yelonosky that will allow a trial on the merits in the civil case against Travis County Precinct 3 Commissioner Gerald Daugherty.

If the case goes to trial the SOS Alliance will seek to persuade the court to order Commissioner Daugherty or Travis County, or both, to change policies enacted last spring regarding retention of and access to public records.

Bill BunchBill BunchBill Bunch, executive director of the SOS Alliance, told The Austin Bulldog he will seek a finding by the court that violations of the Texas Public Information Act did, in fact, occur.

Bunch said such a finding would provide a basis for changing the policies to make sure that no violations like this occur again in the future.

In the beginning the lawsuit was about whether Daugherty had properly complied with the Act by providing all records requested by the SOS Alliance May 31, 2013. In Daugherty’s deposition and a court hearing held July 13, 2015, it was clear that he had not done so, but those records are no longer available. The larger issue for the SOS Alliance was whether it could find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

The case for getting more records is now moot, but Bunch wants to prevent the commissioner and Travis County from ever again failing to retain public records or allowing their destruction.

Criminal case, dead or alive?

Despite the dismissal of the criminal complaint against Daugherty, as reported by The Austin Bulldog October 23, 2015, Bunch has not given up on that either.

On December 7, Bunch wrote letters to Billy Ray Stubblefield, presiding judge of the Third Administrative Judicial Region, and to Visiting Senior Judge James E. Morgan, who dismissed the criminal case by granting the motion filed by special prosecutor Leslie B. Vance of Marble Falls.

Bunch’s letter asked Judge Morgan to reverse his dismissal “and reassign the complaint to a prosecutor willing to consider the complaint on its terms and in accordance with the applicable law.”

Judge Morgan rejected that request. On December 21, he e-mailed Bunch to say, ‘I feel I must respectfully decline, for two reasons.”

“First, I have the utmost respect for Mr. Vance and his ability to consider and prosecute criminal matters. He was the DA here when I started out as a young attorney and he was among the most effective prosecutors I ever worked with, in any capacity.  He was DA in two other jurisdictions besides here. He has also worked for the Attorney General in multiple capacities, including the prosecutors assistance division. I thought he was the perfect person to appoint as special prosecutor when this case was assigned to me. I understand your disagreement as to his competence, but my faith in him is unshaken.

“Secondly, at this point, for me to remove him and appoint another, would cast me in a light of something other than judicial impartiality and I’m not willing to assume that role. To do as you suggest, I believe would give Mr. Daugherty grounds to seek my recusal and I couldn’t in good conscience oppose such a motion in those circumstances. I’m sorry to disappoint you but my decision is final.”

Bunch, however, is nothing if not persistent, and replied to Judge Morgan December 22.

“Your response does not address the evidence, including sworn admissions by Commissioner Daugherty, and the statements by Mr. Vance that make it clear he did not understand the law applicable to this specific case. I have no doubt that he performed admirably for many years working on other matters.

“If recusal would be required upon the appointment of a new prosecutor—done in the context of the information we have provided to you—then it would seem a routine matter for Judge Stubblefield to appoint another visiting judge to preside over this case.  

“Our representative form of democracy cannot function when our elected officials may hide information from the public and otherwise act with impunity despite the clear mandates of the Texas Public Information Act. A jury should decide this case, not a prosecutor unwilling to take the sworn testimony of Commissioner Daugherty at face value.  

“I respectfully submit that the circumstances of this case fully justifies a different outcome.”

New judge requested

Billy Ray StubblefieldBilly Ray StubblefieldBunch’s letter to Judge Stubblefield asked for the assignment of a new judge to reconsider the complaint.

“As the complainant in this case, I find both the decision-making process and the decisions themselves woefully lacking and impeding the course of justice,” Bunch wrote. “As such, I request that you assign another judge to this case and that, if you deem it appropriate, that a hearing be set on this request.”

Judge Stubblefield told The Austin Bulldog on January 4, 2016, that his office is arranging a conference call with both Bunch and Randy Leavitt, who acted as Commissioner Daugherty’s criminal defense attorney.

Stubblefield said the purpose of the call is to hear what arguments the two attorneys present and to “see if I have the authority to do what’s requested.”

Randy LeavittRandy LeavittLeavitt told The Austin Bulldog December 17, that it’s a misnomer to describe this as a criminal case.

“It should not have been given a docket number.”

That happened, he said, when both County Attorney David Escamilla and District Judge Julie Kocurek recused themselves from considering the complaint and asked that someone else to be appointed. “That’s what caused it to be recorded at the courthouse,” he said.

“Everyone is treating this as a criminal case but it never has been. There has been an allegation of criminal conduct.”

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 donation.

Link:

Order on Respondent’s Plea to the Jurisdiction Regarding Declaratory Judgment Action, December 10, 2015 (2 pages)

SOS Alliance Criminal Complaint re: Travis County Commissioner Gerald Daugherty

Related Bulldog coverage:

Commissioner Daugherty Won’t Be Prosecuted: Prosecutor filed motion to dismiss criminal complaint over alleged violations of Texas Public Information Act, October 23, 2015

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

City Hosts Open Government Symposium: Lawyers attending for education credits abound, much of the day had little to do with city practices, April 22, 2013

City Spent $157,636 to Defend Council Violations: Payments for private lawyers for mayor, council members in criminal investigation, April 8, 2013

City Hosting Open Government Symposium: Follows county attorney’s investigation of City Council open meetings violations, March 19, 2013

Deferred Prosecution Ends Open Meetings Investigation: Mayor and five current council members sign agreements waiving the statute of limitations and requiring major reforms, October 24, 2012

Austin Board and Commissions Get E-mail Policy: Fifteen months after City Council ordered changes, board and commission members to be assigned city e-mail accounts, August 23, 2012

Open Meetings Investigation a Year Old Today: County attorney says investigation of whether City Council violated Open Meetings Act is still ongoing, January 25, 2012

City of Austin Moving, Slowly, Toward Greater Transparency in Electronic Communication: New system for board and commission members targeted for first quarter 2012, October 27, 2011

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City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices: City employees, board and commission members still not covered by city policies, July 13, 2011

E-mails Exchanged by Council Members Expose Private Deliberations and Political Maneuvering: More than 2,400 pages of e-mails published here in searchable format, July 6, 2011

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County Attorney’s Office ‘Cannot Determine’ City of Office Committed Alleged Violations: Bulldog’s complaint was the first presented for violation of the Texas Public Information Act, April 22, 2011

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Austin City Council Adopts Policy to Improve Compliance with Texas Public Information Act: Policy does not cover all city employees or all city board and commission members, April 15, 2011

City of Austin and Council Members File Answer to The Austin Bulldog’s Lawsuit: Answer challenges standing and claims requests for open records fulfilled, mostly, April 11, 2011

Call for Public Help in Analyzing City Council Members Private E-mails, Text Messages: Volunteers needed to review correspondence and provide feedback on any irregularities, April 9, 2011

City of Austin’s Records Retention Undermined by Lack of Controls Over Deletion of E-mails: Missing records likely more important than gossipy tidbits, April 6, 2011

Council Member Laura Morrison Releases E-mail on City Business from Gmail Account: Morrison second council member to turn over more e-mails responsive to The Austin Bulldog’s requests, March 30, 2011

Private E-mails About City Business May Be Pulled Into City of Austin Records Retention: City Council votes to consider policy draft at council meeting of April 7, March 29, 2011

The Austin Bulldog Files Civil Complaint Against City of Austin and Council Members: Travis County Attorney David Escamilla has legal authority to force compliance, March 23, 2011

Expired: The Austin Bulldog’s Offer to Settle Its Lawsuit with City, Mayor and Council Members: Does this mean these elected officials want to continue to violate state laws?, March 18, 2011

Council Member Spelman’s City E-mails on UT Account Will Not Be Provided: University of Texas will seek opinion from Texas attorney general to withhold, March 18, 2011

The Austin Bulldog Files Lawsuit to Compel Compliance with the Law: Mayor and city council members not in compliance with statutes for public information, records retention, March 2, 2011

Smoking Gun E-mail Shows Council Aide Advocated Evasion of Open Meetings Act: Provided detailed guide to allow chats with council members on dais but leave no trace, March 1, 2011

Council Member Bill Spelman Goes On the Record About Private Meetings, Fifth in a series of recorded question and answer interviews, February 20, 2011

Council Work Sessions Stir Concern Over Tying Up Staff for Two Meetings: City manager presents summary of options for council consideration, February 15, 2011

Mayor Claims Lawyers Okayed Private Meetings But City Won’t Release Proof: City pledges cooperation with county attorney’s inquiry but is withholding these key documents, February 13, 2011

County Attorney Asks City of Austin for Records Related to Open Meetings Complaint: Former Mayor Wynn and Former Council Member McCracken included, February 9, 2011

Council Member Randi Shade Goes On the Record About Private Meetings: Fourth in a Series of recorded question-and-answer interviews, February 9, 2011

City of Austin Commits $159,000 for Advice in County Attorney’s Open Meetings Act Inquiry: Three attorneys hired for $53,000 each, February 7, 2011

Council Member Chris Riley Goes On the Record About Private Meetings: Third in a Series of recorded question-and-answer interviews, February 6, 2011

Council Member Sheryl Cole Goes On the Record About Private Meetings: Second in a Series of recorded question-and-answer interviews, February 3, 2011

Mayor Pro Tem Mike Martinez Goes On the Record About Private Meetings: First in a series of recorded question-and-answer interviews, February 2, 2011

Will I Said Come On Over Baby, Whole Lot of Meetin’ Goin’ On: Council Member Chris Riley tops the chart with 256 private meetings, January 30, 2011

County Attorney Reviewing Complaint, Brian Rodgers Will Not Run for Council, January 25, 2011

Open Meetings, Closed Minds: Private meetings to discuss public business shows Austin City Council may be violating Open Meetings Act, January 25, 2011

 

 

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