Witch Hunters?

In August, during a hearing for the money laundering charge he faces, former U.S. Rep. Tom DeLay said that he plans to “go after” the constitutionality of “a locally elected district attorney that can go after federally elected people in Travis County." He was referring to the Public Integrity Unit, which is funded by the Legislature but operates out of the Travis County district attorney's office. The Sugar Land Republican, whose trial begins in October, is hardly the first to employ the tactic of blaming the politicization of the unit — it has long been talking point No. 1 for an elected official facing an ethic investigation in Texas.

Thanks to a quirk of geography, the chief enforcer of state campaign finance law is the DA in a heavily Democratic county; as such, dismantling the unit, which prosecutes corruption charges against public officials statewide, is a perennial platform plank of the Texas Republican Party. For instance, when newly elected U.S. Sen. Kay Bailey Hutchison faced charges in 1992 that she used state computers for political records and state employees for personal tasks, she called the unit’s prosecution a “political witch hunt.” Ronnie Earle, the DA at the time, decided not to move forward with the charges when a judge declined to rule in a pretrial hearing on whether he would admit critical evidence.

Although the Travis County pedigree galls many in the GOP, the unit has actually targeted more Democrats than Republicans with ethics investigations since its earliest incarnation in 1982: According to Earle, over his nearly 30-year tenure in office, he prosecuted 19 elected officials but just five Republicans. Nonetheless, Cathie Adams, the former Republican Party of Texas chairwoman, filed an equal protection lawsuit over the issue in federal court last year. Her argument: Why should the voters of Travis County get to elect an official who has the power to prosecute offenses statewide? A frequently proposed solution — one that state Sen. Dan Patrick, R-Houston, put forth unsuccessfully during the 2007 legislative session and state Rep. Wayne Christian, R-Center, presented last session — would be to put state corruption probes instead under the statewide-elected attorney general.

The Public Integrity Unit came into being under the tenure of Earle, who won national attention for his investigations into Hutchison and DeLay and became the poster child for what Republicans view as the unit’s politically motivated prosecutions. Earle started the unit in the early ‘80s because, he says, “it made no sense to me to see an aggravated robbery case next to a case about a state employee cheating on travel vouchers.” At the time, he says, the investigation of government malfeasance was “mostly left to the newspapers” because the Travis County DA spent most of the time fighting street crime.

The reason the unit is in Travis County comes down to a basic principle of criminal law, says Gregg Cox, the assistant district attorney who now leads it: “You have to prosecute an offense in the county where the offense takes place.” Since state government largely resides in Travis County, that’s where the bulk of the crimes the unit investigates occur.

What’s more, says Cox, migrating the function to the AG’s office would be unconstitutional. As the state’s civil lawyer, the AG can’t prosecute any criminal charges. That’s because in Texas, the AG’s office falls under the executive branch of the government — not the judicial branch, which handles criminal matters, as is the case in other states. The AG’s office does have specialized units that investigate offenses like Medicaid fraud and online sex crimes, but in those instances, once the AG has discovered the crimes, the responsibility of prosecuting them falls to the local DA. 

To move the AG's office from the executive branch to the judicial branch would require a constitutional amendment, something that Patrick included in the bill that failed last session. Asked whether he planned to pursue similar legislation again, Patrick said in an e-mail that it “must be on the table” because of the budget shortfall — the idea being that if the state stopped funding the unit, existing staff in the AG's office could pick up the slack. A representative for the AG's office said it did not have a position on the issue.

Adams has since dropped her lawsuit. That’s because the Legislature at the time seemed poised to break up the Public Integrity Unit, says Heyward Smith, the executive director of the conservative Everglades Legal Foundation, which filed the lawsuit on Adams’ behalf. He says his group will likely turn to litigation again if legislation fails for a second time. “The Public Integrity Unit was never designed to be the office that it’s now become," he says, adding, “Its occupants have made it into a rogue political office.”

Earle says many of the elected officials he’s prosecuted in the past have made that argument. But he cautions: “That knife cuts both ways. If you have allegations of misconduct, and they're not true, then you want someone to investigate it [who] knows what they are doing."