Dallas County judge seeks constable's civil removal

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by KEVIN KRAUSE and ED TIMMS / The Dallas Morning News

wfaa.com

Posted on February 21, 2010 at 11:24 AM

Updated Sunday, Feb 21 at 1:53 PM

Dallas County Judge Jim Foster has called on District Attorney Craig Watkins to oust embattled Constable Jaime Cortes from office through a rarely used civil removal process in state law.

Foster and his allies on the Commissioners Court are seeking a way to respond to the results of an investigative report released last week that accused Cortes of bribery and other misdeeds.

"Based on this report alone, I believe this is enough information to proceed with a removal petition," Foster said. "How much more information do you need?"

A spokeswoman for Watkins said Friday that it would be irresponsible to comment on something that may or may not occur.

Even with the support of Watkins, any attempt to use the so-called removal petition to force Cortes out would not be easy, legal experts say.

Coincidentally, Cortes' attorney, Lawrence Friedman, said his client is planning to file a removal petition against Foster this week on the grounds that he ordered an illegal investigation of Cortes.

"You can't take the law into your own hands. You can't be a vigilante," Friedman said about Foster. "He just decided he was Charles Bronson."

The removal petition process outlined in Texas' local government code is used to force out county officials for incompetence, official misconduct or drunkenness following a jury trial. Such a petition can be filed by any county resident.

When a removal petition is successful, it's usually filed in conjunction with a criminal case. However, petitions have succeeded across the state even when an official hasn't been convicted of any crime.

Foster and Commissioners Maurine Dickey and Kenneth Mayfield have found themselves increasingly frustrated by their limited power – largely confined to budgetary controls – over the activities of the county's five elected constables.

Much of their concern has focused on Cortes, the subject of last week's investigative report. In addition, one of Cortes' top lieutenants has been charged with numerous felonies as part of a continuing criminal investigation by Watkins.

Cortes has remained defiant. For example, he has disregarded a court order the commissioners issued in July instructing him to submit all proposed dismissals to the county's human resources department and the district attorney.

The commissioners' only recourse has been to refuse to fill vacant positions in Cortes' office. To have any real authority over a constable's office, commissioners would have to seek specific legislation.

Foster said he has heard from numerous people who are willing to file a removal petition, possibly as early as this week. "I believe this report is damaging enough. It's time to move forward," he said.

But if Cortes is re-elected and a removal petition fails, commissioners will be left with an expensive report and no authority to act on it. Cortes faces three challengers in the March 2 Democratic primary, which will decide the winner since no Republicans have filed to run.

Danny Defenbaugh, a special investigator the commissioners hired last year, concluded in his report that Cortes' Precinct 5 office is rife with prolific and systemic corruption.

Cortes has not been charged with a crime and denies any wrongdoing, saying he's the victim of a political witch hunt.

Commissioner John Wiley Price, who opposed the county's special investigation, last week called it "$137,000 worth of hearsay."

As of Friday, Defenbaugh has been paid $163,200, county officials say.

Mayfield, who voted for the Defenbaugh investigation, said several options are being considered in terms of what to do with the report but that no decision has been made. He declined to say what the options are.

DA's discretion

Robert Bass, an Austin lawyer who has handled removal petitions, said a district judge must first determine whether there's enough evidence to go forward with the proceeding.

Even if a judge allows the case to go forward, the district attorney has the discretion whether or not to pursue it, Bass said.

Wayne Gordon, an attorney hired by commissioners for the constable investigation, said he has seen cases in which a district attorney decided a removal petition should be dismissed and an appellate court upheld that decision.

If the district attorney takes the case, the petitioners can ask the judge to suspend the public official until trial and appoint a temporary replacement.

Bass said voters should have their decisions overturned only under the "most extreme circumstances." Sometimes, citizens bring petitions because they're unhappy with an elected official's leadership, but that isn't enough, he said.

"The statute is designed to protect the officeholder against frivolous claims," Bass said. "It's an uphill battle to get a removal through. And I think rightfully so."

Larry Gallardo, president of the Justices of the Peace and Constables Association of Texas, said due process is necessary because accusations against an elected official may be politically motivated.

"A lot of that occurs. You don't get along with the commissioner ... and he hunts you out," he said. "You know how politics are."

Even a successful removal petition is not a guarantee that county officials will be rid of a troublesome public official.

Bass handled a successful removal action against a McMullen County commissioner in 2006 who was accused of spending county dollars on personal items. A jury ruled that Tim Teal should be removed from office. However, a little over a year later, voters returned Teal to office, where he remains, Bass said.

Petition's nudge

Several elected officials in Texas have been nudged out the door with a removal petition looming.

Cortes' predecessor, Mike Dupree, was targeted with a removal petition by three of his deputies. The deputies sought to force Dupree from office with allegations that ranged from "gross carelessness" in the discharge of his official duties to sexual misconduct.

Like the Cortes case, county commissioners ordered a civil investigation of Dupree, which produced a 67-page report sustaining sexual harassment allegations against him.

Dupree chose to settle the case to avoid a civil trial, agreeing to plead guilty to a misdemeanor charge and relinquishing his peace officer license. He received a deferred sentence.

And in Jasper County in East Texas, dozens of residents sought Constable Fred Peters' removal from office after he was charged with dealing methamphetamines in 2006. Earlier that year, Peters also was arrested on public intoxication and theft charges.

Former Jasper County Judge Joe Folk said Peters resigned and retired before the civil proceedings went forward.

"It really was taken care of pretty fast," said Folk, adding that he believed the removal petition played a role in the constable's decision.

'Statute is just flawed'

Foster and the commissioners said they are concerned about Cortes retaliating against Precinct 5 employees who may have cooperated in Defenbaugh's investigation.

Such concerns have been raised during efforts to remove other public officials.

Authorities in Hockley County near Lubbock sought the removal of Sheriff David Kinney last summer after two of his subordinates were arrested on federal drug-related charges and allegations were leveled against other subordinates.

Hockley County Attorney Christopher Dennis said there were concerns that Kinney knew or should have known of the crimes. Kinney has not been charged with a crime and is fighting to keep his job. The removal trial is scheduled to begin next month.

Shortly after the petition was filed, a judge ordered Kinney's temporary suspension from office. Dennis said he was concerned about the possibility that sheriff's employees would face retaliation. The judge also ordered Kinney not to contact potential witnesses, he said. That order was lifted late last month.

Rod Hobson, Kinney's attorney, said the judge acted on the removal petition without anyone present to speak for his client – and that points to a serious flaw in the process.

Based on one side of the evidence, he said, a judge "can remove the sheriff or whoever the elected official is." And he said many months can go by before the civil trial to determine whether or not the accusations against an elected official have merit.

"The statute is just flawed, because what it lends itself to is politics," Hobson said. "The Democrats don't like the Republican, so they throw someone out. Or the Republicans don't like the Democrat. ... Because gross incompetence can be virtually anything."

Dennis said pursuing the petition for removal came down to an issue of conscience.

"I have this much information, and it is disingenuous of me to leave him in office," he said.

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