How DeLay Beat the Rap
Sun July 1, 2007 11:10 am

All nine judges on the Court of Criminal Appeals are Republicans. This fact might lead a cynical reader -- or a cynical blogger -- to conclude that the Court's decision to uphold lower court rulings quashing a conspiracy indictment against Tom DeLay (as well as aides John Colyandro and Jim Ellis) indicates that the fix was in for the former U.S. House Majority Leader. I do not believe that this was the case. Unlike the Texas Supreme Court, which is ideological and political to an shameful degree, and beholden to big donors, the Court of Criminal Appeals is not a political court. The CCA's traditional shortcoming has been a propensity toward hypertechnicality, with the result, in the distant past, that the guilty went free and, more recently, that the possibly innocent were punished. The question in the DeLay case had nothing to do with whether he actually conspired to make an illegal political contribution to a candidate for the Texas House of Representatives in the 2002 election cycle. Rather, the case turned on whether the state's general criminal conspiracy statute applied to violations of the Election Code at the time DeLay's alleged criminal activity occurred. To resolve this issue, the Court had to decide whether to follow or abandon a precedent that had been roundly criticized at its inception, in 1976. In a rather tortured opinion, the majority decided to follow the much-criticized precedent. What DeLay did or did not do in the 2002 election cycle had nothing to do with the outcome. All that mattered was: Did the general conspiracy statute apply?

The ultimate decision was 5-4 in favor of DeLay. But the raw numbers don't fully indicate how close the decision was. Of the five judges in the majority, one, Tom Price, wrote a concurring opinion expressing sympathy with the position of the four dissenting judges. This was the Court doing what it does best, or worst, which is delving deeply into the hypertechnicalities of the law.

The case that the CCA followed was Moore v. State. Moore was convicted in 1975 of attempting to violate the Controlled Substances Act. The Controlled Substances Act is a separate law that is not incorporated in the Texas Penal Code. The Penal Code specifies that only the first three titles (sections) apply to felony offensies that are not incorporated in the Code. The general "criminal attempt" law is in Title Four. The majority agreed with Moore's contention that the indictment was defective because the general "criminal attempt" provision of the Penal Code did not apply to the Controlled Substances Act. A few months later, in another Controlled Substances Act case, Baker vs. State, the Court reached the identical conclusion about the state's "criminal conspiracy" law, which is also in Title Four. The Election Code itself did not include a conspiracy provision until 2003, after DeLay performed his alleged criminal actions. Therefore, the majority concluded, conspiracy to violate the Election Code was not a crime at the time when the State said DeLay committed his illegal acts.

I attended the oral arguments before the Third Court of Appeals in Austin, and it was evident that the Court bought the State's argument that Moore and Baker were wrongly decided and should be distinguished or overturned. Nevertheless, as an intermediate appellate court, it was bound to follow precedent. In doing so, and affirming the quashing of the indictment by the trial judge, the Court said of Baker, the conspiracy case: "[It] appears to be based on questionable reasoning and is arguably in conflict with the history of the criminal conspiracy offense in Texas as well as the growing legislative trend to [create new felony offenses outside the Penal Code]." The appellate court concluded by saying that it was unlikely that the Legislature intended to eliminate criminal liability for conspiracy for all felonies outside the Penal Code.

The State's argument, presented by the Travis County District Attorney's office, was that even if the Election Code did not specifically include a conspiracy provision, it didn't have to, because the conspiracy language in Title IV made conspiracy to commit any felony a crime. In response, the majority opinion, by Judge Michael Keasler, asks, "Were we remiss in ... failing to take into consideration the criminal conspiracy statute ...?" The opinion then segues into a long discussion of legislative intent (from which I will spare you), the gist of which is that by subsequently amending the Controlled Substances Act to add a criminal conspiracy provision, the Legislature essentially ratified Baker by, in effect, admitting that the general conspiracy statute in Title IV did not apply. And when it added criminal conspiracy to the Election Code in 2003, it did the same. The opinion reaches this conclusion:

[T]hese legislative acts establish that, over the course of the past thirty years, the Legislature has repeatedly approved of our interpretation of ... the Penal Code that was rendered in Moore and Baker. From this we conclude that our prior construction ... was correct. Overruling that construction now would be unjustified; we would impermissibly launch ourselves into the role of super-legislators, disturbing the State's legislatively established laws.

The dissenting opinion, by Justice Cathy Cochran, is much more straightforward:

In this case we are asked if any and all felony offenses, whether defined in the Penal Code or in some other Texas statute, may form the basis of a conspiracy charge under [the general conspiracy statute in the Penal Code]. Were it not for two wayward 1976 and 1977 opinions written ... over the strong dissent by Judge Douglas, the answer to this question would be obvious. Yes, any felony offense is subject to the Penal Code conspiracy provision. Thus, a person may be prosecuted for conspiring to commit any felony offense, whether that felony is defined in the Penal Code or elsewhere in Texas law. The plain language of the conspiracy statute requires this result. The structure, legislative intent, and history of the 1974 Penal Code all require this result. Common sense requires this result. Public policy requires this result. Only two poorly reasons opinions from the mid 1970s ... stand in the way of reaching the right result.

Cochran goes on to say, "In construing the meaning of any statute, we look first to the plain language of that statute....[I]f the literal text of the statute is clear and unambiguous, we must ordinarily give effect to that plain meaning. The first rule of statutory construction is to presume that the Legislature meant what it said and said what it meant. On its face, the conspiracy statute plainly applies to all felony offenses."

Indeed, the statute is very clear. It reads: "A person commits criminal conspiracy, if, with the intent that a felony be committed, he agrees with one or more persons" to engage in conduct that would constitute the offense; and he and one or more of them perform an overt act in pursuance of the agreement."

Nowhere does the statute say that "a felony" is restricted to felonies defined in the Penal Code. This leads Cochran to write, "[DeLay] would have us believe that the Legislature intended to make it perfectly legal to conspire to commit all of these felonies but illegal only to actually carry them out. On the contrary, it strains credulity to think that the Legislature intended that persons who conspired to commit these felonies are immune from prosecution for that conspiracy."

What are we to make, then, of the statutory language relied upon by the majority, that only the laws in Titles 1, 2, and 3 apply to felonies defined outside the Penal Code?

Cochran relies on Judge Douglas's dissent in Moore: "[T]his Court should effectuate the full legislative intent. We should find that the Penal Code and the Controlled Substances Act are complementary and have no difficulty in construing the statutes together." That is consistent with what I learned in the class on Legislation that I took in law school. Courts should presume that the legislature did not intend to create a conflict that leads to a result that, in Cochran's words, "strains credulity."

I have tried to avoid arguments that make my head spin, much less yours, but this is the key language in Cochran's dissent:

"[The majority in Baker] posed the issue thus: 'The question before us is whether the criminal conspiracy provisions of the new Texas Penal Code apply to the Controlled Substances Act. We hold that they do not.' [They] posed the wrong issue. [They] should have posed it thus: 'The question before us is whether a felony defined in the Controlled Substances Act qualifies as 'a felony' for the purposes of the crime of conspiracy.' The crime of conspiracy does not 'apply' to other crimes .... But any felony crime, whether defined inside or outside of the Penal Code, may form the basis of the crime of conspiracy." The majority's mistake in Baker (and repeated in the DeLay case), Cochran says, was to think that "conspiracy" was a general legal principle rather than a specific penal offense complete in itself.

The strength of Cochran's dissent is evident from a concurring opinion by Judge Tom Price. He turned out to be the swing vote in the case. Price was swayed to the majority view by Judge Keasler's argument that the legislature had impliedly ratified the construction of the Penal Code adopted in Moore and Baker. At the risk of opening a new can of worms when I ought to be packing up the fishing gear, I will say that I was not so persuaded. The Legislature's action, after the decision in Baker, to add a conspiracy provision to the Controlled Substances Act could just as easily be interpreted as a repudiation of the decision, rather than a ratification; indeed, Cochran did so interpret it.

Price left no doubt that he agreed with Cochran on the legal issues:

"Were we writing on the proverbial pristine slate, construing the statutory scheme for the first time, I would be persuaded by Judge Cochran's dissenting opinion to a different view. She makes a compelling case why Moore and Baker were wrongly decided. But, in the final analysis, it should take more than an argument ... that precedent is wrong to justify overruling it.... This is especially true ... with respect to construing penal provisions, in which context the necessity for notice and predictability is paramount. The holdings of Moore and Baker are not so unreasonable and outlandish that we should have expected [DeLay] to realize that they could not rely upon them in gauging the lawfullness of their conduct. Having said that, I would not rule out the possibility that, on some future occasion, the Court might justifiably overrule the questionable precedents. Our various opinions on the case should arguably serve to notify the public that future reliance upon the holdings of Moore and Baker to justify engaging in a conspiracy to commit a felony not ennumerated in the Penal Code would be, at best, unwise."

Only the judges themselves know whether the presence of Tom DeLay as a defendant in this case had an effect upon the outcome. It is clear that the central issues in the case had nothing whatsoever to do with DeLay's conduct. They depended upon principles of statutory construct that are sufficiently elastic that judges can interpret to their liking. The majority, as majorities often do, focused on the little picture of remaining consistent with precedent. The dissent, as dissents often do, focused upon the public policy consequences of the majority's ruling. But there was one aspect of the case in which the presence of a prominent defendant may have played a role: due process. This was the theme of Presiding Judge Sharon Keller's concurring opinion, which Price also cited as a reason for joining the majority:

"[E]ven if the dissent were correct in concluding that Baker and Moore should be overruled, the new interpretation could not be applied to these defendants. Due process prohibits a court from retroactively applying a more expansive interpretation of a criminal offense provision that is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.' Baker and Moore were the law at the time the defendants engaged in the conduct for which they were indicted. Retroactive application of a contrary and more expansive interpretation of the conspiracy statute would violate the defendants' right to fair warning of what constitutes criminal behavior."

It is possible that the CCA might have overruled Moore and Baker had the alleged lawbreakers been low-profile criminals -- Keller in particular is notorious for her lack of sympathy with defendants -- but did not venture to do so in this case because of its high-profile nature. DeLay surely would have taken his fight to the federal courts, and the CCA might have faced an embarrassing reversal.

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