Dallas County constable's computer data seized in predawn raid


by By KEVIN KRAUSE / The Dallas Morning News


Posted on October 14, 2009 at 12:00 AM

Updated Monday, Oct 19 at 6:12 PM

Dallas County Judge Jim Foster said Tuesday that he ordered county staff to enter Constable Jaime Cortes' Oak Cliff offices before dawn and copy his computer's hard drive.

Foster said he gave the order as part of a continuing civil investigation of Cortes and Constable Derick Evans that he and two county commissioners ordered last month.

Cortes' attorney said Foster had no authority to seize the data and called the entry an illegal act.

A former FBI agent hired by commissioners is investigating possible improper employment practices by Cortes and Evans. Foster said he had the authority to copy Cortes' hard drive because it's county property and possible evidence in a continuing investigation.

"If there is not something on that computer that they don't want anyone to know about, then what is the problem?" Foster said. "There is nothing on my computer that I would be embarrassed to share with any investigator."

Officials say a county security officer and a computer technician took data from more than one county computer inside Cortes' Precinct 5 offices.

Meanwhile, a grand jury investigating criminal allegations related to the constables issued a subpoena for Foster about 6 p.m. Tuesday. Earlier in the day, the grand jury also subpoenaed the county's top administrator.

Foster and Darryl Martin will appear before the grand jury this afternoon.

"I think they want to know if there's anything I know that could assist them," Foster said.

Foster said the information taken from Cortes' computer has been turned over to the county's special investigator, Danny Defenbaugh, who will have a computer forensic expert analyze it. Foster said proper chain of evidence procedures were followed.

But Cortes lawyer Domingo Garcia said the operation, conducted at 5 a.m. Tuesday, was ordered without a subpoena and outside of any constitutional authority.

"His personal vendetta has gone amok," Garcia said of Foster. "You're seeing the county judge and his Keystone Kop investigator just throwing the law out the window since no one appears to be paying attention to them."

Bob Schell, chief of the district attorney's civil division, said only that "no one consulted me before that was done."

The district attorney's public integrity unit is investigating criminal allegations involving constables, sources say. But the seizure of Cortes' computer data wasn't done in conjunction with that investigation.

Sheriff's Department spokeswoman Kim Leach said Cortes called the department Tuesday to ask for a criminal investigation "after he discovered that someone had gained access to his office and his computer without his permission."

Leach said sheriff's officers went to Cortes' office to investigate and then learned that the county had sent a computer technician to access the computer.

"So it was determined no criminal violation had occurred," she said.

Garcia said he wrote Foster a letter Tuesday asking him to explain what authority he had to order the seizure of data.

"Normally, if you want to get something from someone's computer, you need to issue a subpoena or warrant that has been reviewed by a neutral party," Garcia said.

Surprise at move

At least two governmental law attorneys said they've never heard of a county judge ordering the seizure of another elected official's computer data.

Marc Hill, the Harris County attorney's first assistant, said that county commissioners in Texas have budget authority over other elected officials but that he hasn't seen any case law or attorney general opinions allowing them to seize data from computers.

"I can't imagine that situation. It certainly violates common sense," Hill said. "If you told me the criminal district attorney did it, that may be something else."

Lance Vanzant, a Denton-based governmental law attorney, agreed.

"That strikes me as odd, without any kind of notice or warning to the official," he said. "I would think you would need some kind of subpoena to do that."

Defenbaugh, who doesn't have subpoena power, has interviewed dozens of current and former constable employees who volunteered to speak with him, county officials said. His investigation is expected to conclude in a few weeks.

Garcia said Foster is showing his client a "basic lack of decency and professional courtesy." He said Foster is upset that Cortes replaced his friend, Mike Dupree, who was forced out of office by county officials in 2007 over allegations of wrongdoing.

"We believe that relationship is clouding his judgment," Garcia said.

Foster, a former reserve deputy constable under Dupree, has been the leading proponent of an investigation into Cortes and Evans, saying their towing practices, for one, have cast a "dark shadow" over the county.

Commissioner Kenneth Mayfield, a supporter of the civil constable investigation, said he supported Foster's order to seize Cortes' computer data. Mayfield said the county's investigation revealed that the computers contained campaign material.

"We don't have to subpoena our own equipment," said Mayfield, a former prosecutor. "You can't use it for campaigning or for any personal business on county time."

Cortes is up for re-election next year.

Authority question

Commissioner Mike Cantrell, who opposed the county's investigation, said he doesn't know what authority Foster acted under.

"Does that mean he can get my computer?" asked Cantrell, a lawyer.

Cantrell said Foster should have consulted with the DA or discussed it with other court members during closed session. He said he wonders whether taking the computer data would interfere in the district attorney's criminal investigation.

But Foster said the DA's office has known for some time about allegations against Cortes by current and former employees.

"They had four months to decide if they wanted those computers," Foster said.

Commissioner John Wiley Price, who voted against the county's special investigation, said any incriminating information that might have been on Cortes' computer has now been compromised and couldn't be used as evidence in a criminal inquiry.

The grand jury last week issued a subpoena to Defenbaugh, who testified for about 45 minutes.

The focus and scope of the grand jury probe are unclear.

Garcia said late Tuesday that Cortes has not received a grand jury subpoena.