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Earle: Why the Court of Criminal Appeals Should Rehear the DeLay Case

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A confession: When the Court of Criminal Appeals decided in late June, by a vote of 5 to 4, to throw out an indictment against Tom DeLay and two codefendants for conspiracy (regarding an alleged violation of the state’s election laws). I paid little attention to Earle’s press release in which he vowed to pursue a motion for rehearing. Instead, I posted an analysis of the Court’s decision (see “How DeLay Beat the Rap,” posted on July 1). Subsequently, however, the state prosecuting attorney, who represents the state before the Court of Criminal Appeals, filed an amicus curiae brief in support of Earle’s motion for rehearing. (For my analysis of the brief, see “DeLay in the Dock: The Motion for Rehearing,” posted on August 3). I believe that the state prosecuting attorney’s brief makes trenchant arguments for the Court to grant the motion. As I wrote on August 3, any motions for rehearing is a long shot, but the intervention of the state prosecuting attorney may shorten the odds. So I’m going to do what I should have done in June, which is publish Earle’s press release that makes a public policy case for why the Court should reconsider its opinion. As the reader will see, the implications of the Court’s ruling reach far beyond the DeLay case to prevent prosecution of many common types of crimes. I apologize for not posting this in a timely manner.

Today [June 27] a sharply divided Texas Court of Criminal Appeals ruled that individuals can be involved in an ongoing criminal conspiracy to commit certain felony crimes and their conspiracy is perfectly legal.

Criminal conspiracy means three things. It means a person intends to commit a felony. It means that the person agrees that he or his co-conspirators will engage in conduct that would constitute the crime. And it means one of them performs some act in pursuit of the crime.

Under the rationale of today’s majority opinion, the Legislature has blessed these criminal conspiracies as long as the felony they agree to commit is not in the Penal Code. There are many felony crimes that are contained in parts of the law other than the Penal Code.

Of course, it is illegal for them to actually commit the crime, but they can legally conspire to do it all they want.

This is a tortured result.

The public policy considerations surrounding this decision are larger than this case. Criminal conspiracy prosecutions allow for the prevention of the crime before it occurs. Under the Court’s opinion today, law enforcement is powerless to intercept certain felonies before they are actually committed.

For example, under the Court’s opinion, it is legal for people to:

* agree to falsify records related to pollution of our water because that felony crime is in the Water Code.

* agree to conceal and destroy bank records because that felony crime is in the Finance Code.

* agree to generate unlawful oil and gas “waste” because that felony crime is in the Natural Resources Code.

* agree to lie on motor vehicle tax forms because that felony crime is in the Tax Code.

* agree to tamper with vehicle serial numbers because that felony crime is in the Transporation Code.

These crimes are felonies; they are just contained in different books.

Because of the important policy considerations involved in protecting the public from felony criminal conspiracies of all kinds, we will seek a rehearing of this matter before the Court.

Here is what happened in the DeLay case. The Court followed two thirty-year-old cases that interpreted Title 1, Sec. 103(b) of the Penal Code, which reads: “[T]he provisions of Titles 1, 2, and 3 apply to offenses defined by other laws….” The general conspiracy statute is in Title 4. So the Court determined that what Sec. 103(b) really meant was that “ONLY” Titles 1, 2, and 3 apply to Election Code violations, which are defined by laws not in the Penal Code. Therefore, the crime of conspiracy, in Title 4, does not apply to Election Code violations. This is an absurd nd dangerous result that no legislative body could have intended. It is also conceptually flawed. The statute making conspiracy a crime applies to all illegal behavior involving two or more people that meets the definition of a conspiracy, whether the crime is murder, selling drugs, or violating the Election Code.

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