Investigation of Dallas County constables proved difficult to initiate

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by By ED TIMMS and KEVIN KRAUSE / The Dallas Morning News

wfaa.com

Posted on August 30, 2009 at 12:00 AM

Updated Monday, Oct 19 at 5:53 PM

When Dallas County Judge Jim Foster tried to persuade someone to investigate alleged wrongdoing involving constables, the response was less than overwhelming.

He said he first met law enforcement officials from an agency he won't name about a year ago. In recent months, he said, he tried to get the Dallas County district attorney's office interested but was not satisfied with the response.

Foster went to Austin to seek help from the Texas attorney general's office and was told that its staff couldn't intervene without an invitation from the local district attorney. He contacted the Texas Rangers, who, he said, indicated that his concerns were outside their purview.

That prompted Foster and two county commissioners - Maurine Dickey and Kenneth Mayfield - to announce last week that they would appoint an independent investigator to determine whether Precinct 1 Constable Derick Evans and Precinct 5 Constable Jaime Cortes, or members of their staffs, have violated any laws.

The Dallas Morning News revealed last month that the constables have towed thousands of vehicles without accounting for them. Foster's announcement created a new flurry of political maneuvering and posturing.

The controversy highlights the unique and evolving nature of constables. They are elected officials in constitutionally established positions who have quietly expanded the size and scope of their law enforcement operations with relatively little internal or external oversight. And they are so far down the ballot on election day that they may be all but invisible to many voters.

"The way these offices are created ... presents some major challenges to correct or rectify a problem with an elected official," Foster said.

DA's duties

For example, the Dallas County DA's office provides a variety of legal services to constables. The office advises the constables on legal matters and represents them in lawsuits and open records requests, and often handles asset forfeitures involving constables.

The DA's duties include prosecuting cases of wrongdoing by public officials. Sources say the office is investigating the constables, although the scope and vigor of that investigation is unclear. Some current and former deputy constables said they were contacted only last week by the DA's office regarding information they had provided months earlier.

If a DA has represented elected officials in civil matters, then is called upon to conduct a criminal investigation, there might be, at the very least, the appearance of a conflict of interest.

"Probably the safe play is just to get a special prosecutor and be done with it," said Dan Hagood, who was appointed as a special prosecutor in 2003 to investigate allegations that fake drugs were planted on suspects by Dallas undercover officers. "The overarching goal of any lawyer ... is to avoid the appearance of impropriety."

In 2003, District Attorney Bill Hill appointed a special prosecutor from another county to investigate allegations against former Sheriff Jim Bowles.

"My office has an ongoing relationship with Sheriff Bowles and his staff, including representing the Sheriff in litigation in state and federal court," Hill wrote. "By entrusting the investigation to an outside office, we will assure a neutral, impartial, and objective review of all the circumstances."

In 2007, when allegations of sexual harassment were made against Precinct 5 Constable Mike Dupree, commissioners hired former appeals court judge Maryellen Hicks as a special investigator. Hicks said her charge was to determine whether Dupree had created a hostile work environment, but "criminal matters came up." District Attorney Craig Watkins' office then allowed the attorney general's office to conduct a criminal investigation.

The DA's spokeswoman at the time told the Dallas Voice that the decision to bring in the attorney general was made to avoid a conflict of interest. Trista Allen noted that the DA's civil division was representing Dupree in lawsuits and "it's hard for us to do both things."

Last week, Watkins declined an offer by the attorney general's office to look into the allegations involving the two constable precincts.

Watkins said Friday that the Dupree case was different because he was only in office six months at the time and was still getting policies and procedures in place.

Probe unconfirmed

He still wouldn't confirm that his office is investigating the constables. But he said that if circumstances change in any investigation that would create an appearance of a conflict, he would be willing to appoint a special prosecutor to "maintain the credibility of this office."

University of Houston law professor John Douglass, who served as dean of the National College of District Attorneys for two decades, said it appears that Watkins may have his own precedent to live down.

"When you've done it once, it's awfully hard now to back away," Douglass said.

Whether a special prosecutor will be brought in is still uncertain, but an independent investigator is likely to be appointed by commissioners next week. Danny Defenbaugh, a former FBI agent with more than three decades of experience with the federal agency, is expected to be considered for the job.

Complications

Whoever gets it may face some complications.

Hicks noted that when she was looking into the allegations against Dupree, she did not have subpoena power, and if he had chosen not to, "Dupree did not have to talk to me."

Foster said that if potential crimes are uncovered, he is prepared to ask a district judge to appoint a special prosecutor, a process known as a court of inquiry.

Although rare, that process was used most recently in Harris County to investigate problems related to the Houston police crime laboratory. In that 2003 case, officials didn't want the district attorney involved in the investigation.

Such a move - going around a DA - would be extremely rare in Dallas County, perhaps unprecedented.

But Foster says it may be necessary.

"I've tried everything I could think of in order to work around this system," he said.

Commissioner John Wiley Price said he doesn't favor a court of inquiry, based on legal advice he and other commissioners were given.

"We've been told that there's another agency investigating matters," he said, not referring to the district attorney. "I don't want to be involved in anything that gives the appearance of interfering in an investigation."

Some county employees and others have provided information to the FBI, which would not confirm or deny its involvement.

Hicks said that what she learned during her investigation "was the tip of the iceberg" - and that more oversight of constables is needed.

"There needs to be some reform," she said.

etimms@dallasnews.com;

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