Turner, Davis set for battle
By CRAIG KAPITAN
Eagle Staff Writer
For the past month, Judge Rick Davis’ Court of Inquiry request to investigate District Attorney Bill Turner has dominated politics inside the Brazos County Courthouse. On Thursday, an outside judge is expected to decide whether Davis’ request has legal merit.
San Antonio-based Judge David Peeples will convene the preliminary hearing at 11 a.m. in the 85th District Courtroom of the courthouse.
The hearing — in which Turner and Davis have been invited to present their assertions in person — originally was scheduled for the smaller 361st District Courtroom, but the venue has been changed to accommodate a larger crowd.
Oral arguments during the hearing will act as a supplement to legal briefs already filed over the past two weeks by Turner and Davis.
On June 30, Davis submitted a document stating that an investigation of Turner and two other public officials is important to enforce laws against fiscal misconduct and ensure honesty in county government.
A week later, Turner responded that Davis’ accusations and legal reasonings were “seriously flawed” and indicated that the judge’s accusations went against 200 years of legal precedence.
Davis first submitted a request for the Court of Inquiry on June 11. The rarely used process is intended to help investigate and possibly bring charges against local officials with the help of an outside judge unbiased by area politics.
In the initial document, Davis accused Justice of the Peace Ray Truelove and Tax Assessor-Collector Buddy Winn of breaking the law in “time card scams” dating back to 2001. Turner also broke the law, Davis wrote, by not prosecuting the two officials.
Davis also accused Turner of dragging his feet during an investigation of missing funds from a victims’ restitution account managed by the district attorney’s office.
About $200,000 is missing from the fund over a 19-year period, the district attorney announced last month, on the same day Davis filed the accusations.
Davis said Turner could be financially and criminally responsible for recklessness in overseeing the funds.
But Turner said the investigation of missing funds was going by the book until Davis stepped in and interfered with the process. As soon as any criminal activity was suspected — which was in February — the Texas Rangers and Attorney General’s Office were called in to take over, Turner said.
The public wasn’t notified because it was an ongoing investigation, and the main suspect had not yet been confronted, he said.
In an attachment to the brief Turner filed Monday, Texas Ranger Frank Malinak testified that he had asked Davis to allow him two or more months to familiarize himself with the accounting process before interviewing the main suspect.
“I told Judge Davis that public disclosure of this investigation would be detrimental to the case as it would alert the suspect to the scope of the investigation,” Malinak wrote.
Davis made the Court of Inquiry request days later, stating that he felt it was his duty to do so.
The request included an attachment from the County Auditor’s Office that named recently retired Brazos County Victims’ Assistance Program coordinator Queen Walker as the suspect.
Authorities have not commented on the validity of the memo, and no arrests have been made.
Both Tax Assessor-Collector Winn and Justice of the Peace Truelove have said the “time card scams” alleged by Davis already were investigated by Turner and that no laws were broken.
In Truelove’s case, a single mother in his office who had just suffered a stroke was paid for 288 hours of comp time as she recovered at home.
Truelove admitted he had not properly documented the overtime the employee was owed and offered to repay the amount. The county was later reimbursed.
“I concluded that Judge Truelove did not knowingly falsify documents,” Turner wrote Monday, adding that the county auditor and county personnel department sometimes have taken different views of proper overtime documentation.
“The repayment of funds more than adequately addressed the problem of failing to keep proper overtime documentation,” he said.
In Winn’s office, Davis claimed the official illegally paid an employee for four months of sick time when the employee was not actually sick. When asked by the county auditor to provide a doctor’s note for the sick employee, Winn refused, Davis wrote.
Winn later responded that the employee was having emotional problems and that as an elected official running the office, the law says he — not the auditor — has discretion to determine what qualifies for sick leave.
The employee, Joachim Bengs, had just been demoted but was needed to assist with an ongoing audit, Turner further explained in his brief. After several months of sick leave, Bengs eventually resigned from the lower position.
“But there is substantial evidence to show that the ‘reassignment’ was in fact a scam, and that Mr. Bengs was simply kept on the payroll so that he could be paid sick leave until ... the end of the county fiscal year,” Davis wrote in his June 30 brief.
“Brazos County policy does not allow employees to take extended sick leave just because they feel bad because they have been fired,” he added.
Davis pointed to a policy that requires a doctor’s note for extended sick leaves. He also said that two attorney general opinions – which Turner cited as justification for not pursuing prosecution – only address officials’ authority to close offices due to things like bad weather and repairs.
“To say these AG opinions mean that a county official can pay an employee three months sick leave when he is not sick stands reason on its head,” Davis wrote.
Turner, however, has argued that the opinions are much more relevant to his decision than that.
He pointed out that one of the AG opinions actually reads, “A county officer’s dismissal of employees for reasons other than bad weather, repairs and the like is within the officer’s authority.”
The opinion later adds, “Improving employee morale may, for instance, be a sufficient public purpose.”
Davis’ reasoning also is flawed, Turner said, in asserting he broke the law by not prosecuting Winn and Truelove. Davis uses as justification a part in the Texas Government Code, which according to Turner only applies to a district attorney’s duty to prosecute when an official has been found to abuse his duty of collecting or safeguarding public funds.
Because the payroll funds are controlled by the treasurer, the law does not apply to the two officials, Turner wrote.
“Judge Davis has accused the prosecutor of a crime for failing to prosecute a case under a statute in which the prosecutor has no authority to act,” Turner wrote.
By requesting the Court of Inquiry proceedings, Davis has attempted to violate the separation of powers between a judge and a district attorney, Turner argued. In essence, he is trying to take on the powers of another elected official by exercising authority over who the district attorney should prosecute, Turner said.
Turner went on to argue that prosecutorial discretion — the ability of a district attorney to decide which cases should and shouldn’t be pursued — also is at stake.
“Prosecutorial discretion is a bedrock principle of the criminal justice system,” he wrote.
“Complaints are regularly made against public officials, especially during election season ... To require each case to be prosecuted without the exercise of judgment would lead only to an unjust system.”
In the time since Davis’ first document was filed, Turner, Winn and Truelove have maintained that the judge has ulterior motives for pursuing the request. The Court of Inquiry is a political move to get back at Turner for a public reprimand last year, the group contends.
Davis was given the highest reprimand possible by the State Commission on Judicial Conduct after Turner complained that the judge had verbally abused a relatively new prosecutor.
In subsequent letters after the courtroom outburst, Davis wrote to Turner that his assistant district attorney “probably has the compassion of an Auschwitz camp guard.”
Davis also accused Turner of invading his relationship with God “as if you have defecated on Mt. Sinai, holy ground.” In addition, the letters contained veiled threats, the commission determined.
The judge appealed the commission’s reprimand, but a special court of review appointed by the state supreme court upheld the decision. The review panel also ordered Davis to spend time with a mentor judge and wrote that the incident would hopefully “cause this obviously talented judge to be less mindful of criticism and more mindful of his ethical obligations.”
In his June 30 brief, Davis told Peeples that there had been “a media campaign implying that my actions are the result of a personal vendetta.” He denied that Turner’s involvement in the reprimand influenced his decision to file the request.
“I do not particularly like wearing the mantle of ‘accuser’ in this present case, but I believe duty requires it,” he said. “The facts of this case exist regardless of who raises the alarm.”
• Craig Kapitan’s e-mail address is firstname.lastname@example.org.