An Austin lawyer with Democratic ties has sued Gov. Rick Perry and Comptroller Susan Combs, arguing that the Republican leaders had no authority to spend taxpayer money on criminal defense attorneys for the governor, who is fighting an abuse-of-office indictment.
Larry Sauer, an Austin defense attorney who specializes in drug cases, is asking a state district court in Austin to declare the expenditures unlawful and to slap an injunction on the governor’s and comptroller’s offices to prevent future spending on outside criminal lawyers for Perry.
“State law is clear that public officials cannot use taxpayer or other state funds to defend a criminal charge, unless and until the official has been found not guilty,” the lawsuit said. It was filed Thursday and issued a docket number Friday afternoon, an attorney for the plaintiff said.
The lawsuit is being waged by attorneys with deep Democratic connections. Sauer has made numerous contributions to Democrats, according to state ethics records. He also gave $300 to Travis County District Attorney Rosemary Lehmberg, according to a 2008 story in the Austin American-Statesman.
Sauer's lawyers are Buck Wood, a Democratic campaign lawyer, and Philip Durst, a former top official in Democratic Attorney General Jim Mattox’s administration.
A call placed to a Perry representative was not immediately returned Friday. Combs spokesman Chris Bryan said the comptroller's role was confined to processing payments that Perry's office had already approved.
The lawsuit comes a little less than a month after the office of the governor acknowledged it has billed taxpayers $133,000 to hire lawyers to represent Perry and his aides in the wake of an investigation by a Travis County grand jury. Perry was indicted on two felony counts of coercion of a public official and abuse of official capacity related to his threatening to veto state funding for the Travis County district attorney’s office. Perry had called for Lehmberg, the Travis County DA, to resign after her drunken driving conviction. He vetoed funding for the public integrity unit, housed in the DA’s office, after Lehmberg refused to step down.
A hearing in Perry’s case is scheduled for Oct. 13.
The governor has called the indictment a “farce” and says he will be exonerated.
When it comes to paying the legal bills incurred in connection with the grand jury investigation, Perry has never wavered from his argument that he has the right to use taxpayer money to pay for criminal defense lawyers.
After his aides said last month that Perry would pay for the attorneys out of his flush state campaign account, the governor said during a stop in Midland that he decided to use political funds only because people complained about it.
“I look at this as an appropriate defense of a state official,” Perry told reporters, according to news reports. “But just to keep from having folks grouse about it, we’ll pick up the cost as we go forward.” That statement is a central feature of the lawsuit.
Because Perry has asserted a right to tap taxpayer money for the legal bills, the lawsuit says taxpayers have no way to stop it from happening again.
“Governor Perry claims the right to pay criminal defense attorneys fees and expenses out of taxpayer funds at his whim, and Defendant Combs claims she must pay such expenses if Perry makes such a request,” the lawsuit alleges. “This leaves the taxpayer without the ability to prevent them, without judicial review.”
Perry submitted the legal bills to the comptroller's office, which then paid them. The comptroller's office acts as the steward of taxpayer money in Texas.
Bryan, the comptroller's spokesman, could not comment on the lawsuit directly because he said his office had not seen it yet. But he told The Texas Tribune that the chief accountant for the state does not decide whether or not such requests for payment submitted by the governor's office are appropriate or legal.
"There’s no, like, button where we hit approve of this stuff," Bryan said. "As long as the governor's office is not going over their appropriated funds, it’s not really up to the comptroller to approve or disapprove of anything.”
The lawsuit does not mention Attorney General Greg Abbott, who is the Republican nominee in the race to succeed Perry. But the flap over the legal fees could throw Abbott into the fray just as his campaign is entering the final stretch.
Abbott’s office is charged with representing state elected officials when they get sued in civil cases in their official capacity. Also, state Rep. Joe Deshotel, D-Beaumont, has asked Abbott to issue a legal opinion about whether the governor has authority to spend money on outside lawyers. Abbott hasn’t issued the opinion yet.
Abbott spokesman Jerry Strickland said Abbott's office had not received the lawsuit and therefore could not comment.
But Abbott's predecessor, John Cornyn, now a U.S. senator, suggested in 2000 that public servants who bill the government for criminal defense lawyers must be declared innocent first.
In the opinion, Cornyn interpreted a state law, found in Chapter 104 of the Civil Practices and Remedies Code.
“The person must be found not guilty after a trial or appeal, or the complaint, information, or indictment must be dismissed without a plea of guilty or nolo contendere being entered and it must have been dismissed because it was based on mistake, false information, or a similar error,” Cornyn wrote. “Thus, section 104.0035 is directed at indemnifying only the innocent public servant for attorney's fees incurred in defending a criminal action.”
Sauer's lawyers cited the opinion in the lawsuit, arguing that it means government is barred from paying for criminal defense attorneys for a public official unless it's clear there is no conviction.