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