Badges? We don't need no stinking badges....
Fri March 23, 2007 5:49 pm

In a free-wheeling conversation late Friday, Jay Kimbrough, the TYC Special Master appointed by Rick Perry, dismissed as "silly" questions about his title and the governor's authority to appoint him to facilitate reforms at the troubled agency.

"He (Perry) gave me a title, which frankly...you can call me Jay, you can call me Ray, you can call me Special Master. I am a state employee trying to coordinate and facilitate gathering information and making recommendations to improve this agency," Kimbrough said. "Looking at the title is silly. The question is what am I doing [to bring about change at TYC]."

Kimbrough made his remarks in response to comments from Senator Eliot Shapleigh, who questioned whether Perry has the legal authority to name a special master (which would have to be granted by the legislative branch) and what powers, if any, can be exercised by a special master. In addition to his legal status, there are also questions about whether Kimbrough -- as a former employee of the governor's office and they attorney general's offices, both of which ought to be under scrutiny for their slowness to respond to the Texas Ranger's report -- can be counted upon to independently determine whether either office dropped the ball on the stalled investigation into sexual abuse by TYC administrators. Kimbrough insisted to me that the Texas Rangers were proceeding with their investigation without interference from him.

"I was in the AG's office (in March 2005, when a Texas Ranger filed a report detailing abuse at state facilities)," he acknowledged. "I was in Dallas on November 22, 1963, too. In fact, I used to hang out at the Texas Theatre where Oswald was captured. I kid you not. Somebody ought to check into this."

Anyone who believes he would "be so stupid as to subject myself to all of this because I was going to cover-up for some politician" doesn't know him, he added.

He repeatedly described his role as "coordinating and facilitating," saying he didn't "flash badges" and gather evidence. That, he said, remains the role of the Texas Rangers. They will develop criminal evidence and take the cases to the appropriate prosecuting attorneys with jurisdiction.

On the other hand, he compared his role to that of Earl Warren, the Supreme Court chief justice who investigated the Kennedy assassination. "Did Earl Warren have police credentials? He did not," Kimbrough said. Yet, Warren directed a criminal investigation, he noted, by coordinating the efforts of law enforcement agencies.

Ironically, though, the Warren Commission did derive its authority from the legislative branch. President Johnson created the commission by executive order, but its powers to issue subpoenas came from a joint resolution adopted by Congress a month after the assassination. It's an imporant point, since Shapleigh and other senators are concerned that evidence will be tainted if it is not gathered by a "special master" specifically empowered by law.

Here's an account of the Warren Commission's legal history, according to a paper written by a former Warren Commission staff member:

The President, by executive Order, appointed a Commission "to ascertain, evaluate and report upon the facts relating to the assassination of the late President John F. Kennedy and the subsequent violent death of the man charged with the assassination." Exec. Order No. 11130, 28 Fed. Reg. 12789 (1963). Congress passed a joint resolution vesting the Commission with power to subpoena witnesses and documents, administer oaths to witnesses, order a witness to answer questions put to him and on his refusal to remit the matter to the Federal court for action, and grant immunity in the event a witness invoked the privilege against self-incrimination. Public Law 88–202, 88th Cong. S–J Res. 137, Dec. 13, 1963.) The President’s Executive Order empowered the Commission to prescribe its own procedures.

That account seems to suggest that authority to conduct investigations does need to be officially bestowed by the executive or legislative branches of government. And, contrary to the constitutional powers of the President of the United States, the Texas governor has limited executive powers -- recently pointed out by Attorney General Greg Abbott in the HPV vaccine controversy.

Nonetheless, Kimbrough passionately described the next steps he will take as special master. His first priority would be the review of all sentences of incarcerated youths that were extended by TYC administrators. If the extensions are not properly documented and appropriate, they will be deleted from a youth's records, he said. "Nothing bothers me more than some kid being in TYC that doesn't belong there," he said. "It's a nightmare to think about."

He noted that he had orchestrated a strategy for the quick review of all records, involving civil rights groups and other stakeholders. "We didn't need a law to do that -- we just did it," he concluded.

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