Politicians Pick New Way to Get Prosecuted

State politicians, high court judges and top bureaucrats would get public corruption cases against them moved to their home counties under a controversial bill that cleared the Texas House on Monday, prompting complaints that the Legislature is attempting to rig the game in favor of the politically connected. 

The vote for House Bill 1690 follows similar action in the Senate, which has signed off on giving lawmakers and other top-level state officials even more leeway in determining where they would face prosecution for abusing their positions. The effort stems from Republican leaders' widespread distrust in the Travis County district attorney’s office, which is led by a Democrat and charged with prosecuting public corruption cases that arise in the state capital.

“The flaw that we have today with using Travis County is you have taken the power to investigate and prosecute any state official and any elected official in the entire state and you’ve invested it in one person in one county,” said Rep. Phil King, R-Weatherford, the author of the House bill. “That’s incredibly too much power.” 

With Republicans enjoying a near 2-to-1 majority in the House, King’s bill easily passed on a vote of 94-51, but not before prompting heated debate. It faces another procedural hurdle before it can head to the Senate.

Democrats and at least one Republican, Rep. David Simpson of Longview, complained that King and his supporters were creating an elite group of defendants — which notably includes them — while making everyone else do it the old-fashioned way.

“We’re going to create a special protected class for us as elected officials,” Simpson said. “As Republicans, we stand up and we fight against special classes or groups that are not protected by the Constitution, such as gender or sexual orientation, yet we think it’s appropriate today for us to create a special class for elected officials.” 

Simpson, a libertarian-leaning Republican who doesn't mind bucking his own party leaders, tried to amend the bill to extend the same protection to average Texans, and he was nearly shouting on the House floor as he pleaded with his colleagues not to put themselves “above the laws that we require of others.” 

The GOP majority ignored him and voted his amendment down 93-49 on a mostly party-line vote.

But King accepted a slew of other softening amendments from critics, including one that would leave state employees under the existing system, another allowing cases involving multiple defendants to be tried in the county where the crime occurred and more changes designed to isolate investigations from political influence.

Under the bill as it came off the floor, public corruption complaints against high-ranking state officials would no longer be directed to the Travis County district attorney’s office but instead would go to a new white collar crimes division inside the Texas Rangers, a division of the Texas Department of Public Safety.

The designation of the elite state investigative agency as the repository for complaints against state politicians who oversee their budget prompted Rep. Roland Gutierrez, D-San Antonio, to decry what he saw as a move toward the “fox guarding the henhouse.” 

But King said the Texas Rangers were part of a “world-renowned agency” and were insulated by civil service protection from political heat that might come down from the governor or his appointees on the Department of Public Safety Commission. 

Once the Rangers investigated, any referrals would be sent to the county of residence of this brand new class of defendants. For a legislator, that would mean they would get prosecuted back home in their district.

The bill applies this new distinction uniquely to “state officers,” defined as “an elected officer, an appointed officer, a salaried appointed officer, an appointed officer of a major state agency or the executive head of a state agency.” Examples of public corruption would include offenses such as bribery, misuse of campaign funds and official coercion.

King said the bill would include members of the University of Texas System Board of Regents, the secretary of state and other major appointed state officials. But where they would be prosecuted would depend on where they have established residency. In the case of many major appointed officers who live and work in Austin, prosecutions would still occur in Travis County, he said.

For statewide elected officials, including the governor, attorney general and all statewide judges, their place of residence would be determined by where they lived at the time they filed for their last elected job. 

Critics say the new system would create something akin to a home court advantage for elected officials. In nearly every other crime scenario, defendants are tried in the county where the crime occurred. That will change if King’s bill — or the even more far-reaching Senate version by Sen. Joan Huffman, R-Houston — becomes law. 

“Virtually every single crime that is committed in the state of Texas is prosecuted in the jurisdiction where the crime occurred,” said Rep. Gene Wu, D-Houston. “This bill actually carves out a singular exemption for elected officials and their staffs.” (He spoke before staffers of state employees were stripped from the bill.)

King argued that hometown juries and prosecutors were likely to be far tougher on politicians who ran afoul of the law than a district attorney in another county. He said that was “the last place you want to be prosecuted.”

However, the issue of hometown favoritism arose recently after Collin County District Attorney Greg Willis received a criminal complaint from a liberal group against newly elected Attorney General Ken Paxton, a Republican who is Willis' longtime friend and former business associate. Aides to Paxton, who was fined for violating securities laws, have said he did not run afoul of criminal laws.

Ultimately, Willis asked the Texas Rangers to step in amid reports that a Collin County grand jury independently sought information about the complaint against Paxton.

To deal with a Paxton-like scenario, King accepted an amendment from Rep. Chris Turner, D-Grand Prairie, calling for prosecutors to seek a recusal if they had a current or past “financial or other business relationship with the defendant.”

King said that from his perspective — one that’s echoed by many Republicans in the Legislature — elected officials aren’t getting a fair deal in Democrat-controlled Travis County. By way of example, many have cited the high-profile prosecutions of former U.S. Majority Leader Tom DeLay, R-Sugar Land, who was acquitted after years of appeals, and former Gov. Rick Perry, a Republican, who was indicted last summer and has a blasted his prosecution as a politically motivated "farce." 

“I think the way it’s currently constructed has led to political influence in investigations and prosecutions,” King said. “The best remedy to that is to diffuse that power to as many people as possible, which this does.”