Editor's note: This story has been updated throughout.
A Harris County judge has dropped one of the criminal charges against an anti-abortion activist who was indicted after making undercover recordings of a Houston Planned Parenthood facility.
David Daleiden, one of the videographers who infiltrated Planned Parenthood Gulf Coast, had been charged with the very crime he tried to secretly catch Planned Parenthood committing — a misdemeanor charge for offering to sell or buy fetal tissue. But that charge was dismissed on Monday, according to the Harris County District Clerk website.
In her ruling, Judge Diane Bull said her court lacked the jurisdiction to take up the case because of a technical problem with the indictment filed by prosecutors. Prosecutors failed to "negate" an exception in the penal code related to the charge against Daleiden, voiding the indictment, she wrote.
"One down and one to go before our job is complete," Daleiden's lawyer Terry Yates said in an email.
Daleiden still faces a second-degree felony charge for tampering with a governmental record, which carries a punishment of up to 20 years in prison. He is accused of using a fake California driver’s license to enter the Planned Parenthood facilities where he recorded staff discussing the costs of providing fetal tissue for research.
As part of a criminal investigation launched at the urging of Republican Lt. Gov. Dan Patrick into the women’s health organization, a Harris County grand jury in January instead handed up charges against Daleiden and fellow activist Sandra Merritt.
Daleiden’s team in April asked the judge to dismiss his indictments, alleging they were a result of improper proceedings by prosecutors and that the grand jury — originally asked to investigate Planned Parenthood, not the videographers — exceeded its authority.
In a statement Tuesday, Harris County District Attorney Devon Anderson said the judge’s ruling was not based on Daleiden's motion to quash the indictments.
“The basis for the judge’s ruling was not raised by the defense at any time,” Anderson said. “We do not intend to appeal the judge’s decision. Our office remains focused on the felony charge pending in the 338th District Court.”
County prosecutors in February offered both abortion foes pre-trial diversion, a form of probation offered to many first-time, nonviolent offenders. But Daleiden rejected the offer, vowing to fight the charges. It's unclear whether Merritt will follow suit.
Melaney Linton, president and CEO of Planned Parenthood Gulf Coast, on Tuesday pointed out that the judge's dismissal did not clear Daleiden of wrongdoing.
“The people behind this fraud lied and broke the law in order to spread malicious lies about Planned Parenthood to advance their extreme anti-abortion political agenda," Linton said in a statement. "It's become totally clear that the only people who engaged in wrongdoing are the criminals behind this fraud, and we will allow the court to hold them accountable.”
Disclosure: Planned Parenthood has been a financial sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.