The Senate’s Get Out of Jail Card for Politicians

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The Houston Chronicle’s Mike Ward is reporting that later today the Texas Senate will take up an ethics bill that, in my opinion, will end almost all ethics prosecutions in the state of Texas.

AUSTIN — A compromise has been reached to allow passage of a controversial Senate ethics bill that would allow state elected officials to be prosecuted in their home counties, rather than in Austin, the bill’s author confirmed Tuesday.

State Sen. Joan Huffman, R-Houston, said she has agreed to remove the Attorney General’s office from having any involvement in the prosecutions of ethics violations, and to allow local prosecutors to handle the cases…

With Sens. Kevin Eltife, R-Tyler, and Kel Seliger, R-Amarillo, and all Senate Democrats opposed to the anywhere-but-Austin prosecution exception for statewide officeholders, lawmakers and lobbyists, Huffman had been unable to get her bill called up for a vote by the full Senate.

Seliger last week had proposed allowing the Texas Rangers to investigate all cases, and to have a special prosecutor appointed by the chief justice of the Texas Supreme Court handle any charges filed.

With the Texas Rangers, lawmakers in the Republican-controlled Legislature generally believe they would get better outcomes in ethics investigations of them than those conducted by the Travis County district attorney’s office run by Democrat Rosemary Lehmberg, who stirred controversy two years for being arrested and serving jail time for drunk driving.


There’s no such thing as a perfect venue for prosecuting the ethics cases of politicians. And I certainly can understand why Republicans don’t want to be prosecuted in Travis County – the so-called Democratic blueberry in the state’s Republican tomato soup. I mean, the forewoman of the jury that convicted former U.S. House Majority Leader Tom DeLay was a Greenpeace activist. DeLay very much wanted to be prosecuted in his home county.

But as we saw just last week with The Dallas Morning News’ call for a special prosecutor to investigate state Attorney General Ken Paxton, local district attorneys are hard to trust as the prosecutor in the case of a local public official. Will Paxton’s friend and former business partner even consider investigating his case? Would Tom DeLay’s hometown prosecutor ever have considered prosecuting one of the most powerful men in Congress who could have the prosecutor defeated at the next election? No.

(Of note here, the Texas Constitution requires statewide elected officials to live in the capital. Some have interpreted that as the greater Austin area. But most live in Travis. Rick Perry lived here since the early 1990s. So this bill still would have left the Perry case in the hands of Rosemary Lehmberg. What the bill really does is give legislators – including the Senators who may vote for this bill – the power to influence cases against them.)

Merely turning ethics investigations over to the Texas Rangers is an almost equally bad idea. The governor appoints Texas Public Safety Commission. The current director of DPS was an aide to Governor Rick Perry before taking the top job at DPS. Through a governor’s influence over the public safety commission, a governor could halt or prompt almost any investigation. Imagine an unscrupulous governor bending legislators to his will by threatening to have their campaign accounts investigated. This is as bad a public policy as leaving ethics investigations in the office of one elected district attorney in heavily Democratic Travis County. Besides, I’d rather have the Texas Rangers chasing drug dealers, murderers and other crimes that endanger the public’s safety.

Seliger’s idea has some merit in that it allows the Supreme Court chief justice to name a special prosecutor, but it still involves the Texas Rangers and the political influence a governor can bring to the case. The federal experience also has shown that special prosecutors don’t seem to believe they’ve done their job unless they indict someone.

Probably the best course would be to finally give the Texas Ethics Commission some real powers to investigate and enforce the state’s ethics laws and election codes. As the Texas Tribune reported last week, at least one member of the commission is frustrated by how little power the commission actually has. 

But if you are looking for a means of spreading the concentration of power involved in ethics investigations, the commission is a pretty good start. The commission consists of two appointees by the House speaker, two by the lieutenant governor, and four by the governor. Properly funded and authorized, the commission staff could investigate complaints and make recommendations for civil or criminal cases to the full commission. The commission could then decide whether to refer criminal cases to the Texas Supreme Court, which in turn could name a special prosecutor. Allow the court to also establish the county of venue for the prosecution, excepting the counties within the district of the accused offending politician.

This may not be the best solution, either. But the bill the Senate is preparing to debate is almost a Get Out of Jail card for politicians.


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