Sumrow receives 15 years, must appeal from prison
By Leslie Gibson
Herald-Banner Staff
DALLAS — Fifteen years in prison. Ray Sumrow of Rockwall received that sentence Wednesday by a Dallas jury, which on Tuesday, had taken 30 minutes to find him guilty of second-degree felony theft in his official capacity as district attorney of Rockwall County.
Sumrow was also suspended as district attorney of Rockwall County in an order written by Senior Judge John Nelms, who heard the week-long case. A notice of appeal was given immediately upon trial’s end, but Sumrow must appeal from prison.
Thus ends the 20-year career of Sumrow as the district attorney for Rockwall County.
Sumrow was convicted with abuse of official capacity, taking $68,000 in the years 2003 and 2004. He paid the money back.
The taking and repayment were never in question. Intent, or knowledge of the deposits, and thus the spending which accompanied them, was the argument.
State witnesses of former and current county employees and an FBI financial expert had verified timelines and documents to convince the jury that Sumrow knew the funds were in his personal account, and spent them knowingly.
Defense attorney James Wheeler of Quitman put Sumrow family members on the stand to testify to Sumrow’s “sloppy bookkeeping” and that they made some of the ATM withdrawals, which had been noted in the state’s evidence.
The jury took 30 minutes to find Sumrow guilty on Tuesday, after five days of testimony, most of that prosecution.
Wednesday, they took an hour and half to return a unanimous sentencing of 15 years in prison. Had the jury given Sumrow 10 or less years, Sumrow could be out on bond.
Before they deliberated, the state had the final closing argument.
Special prosecution for the state, John Schomburger, Collin County assistant district attorney, noted the repayment which had been highlighted by the defense.
“Folks, the money came back because he got caught. It didn’t come back because of a change of heart, a reflection of life,” Schomburger said. “He has not resigned.”
He contrasted that with the fact that one of the state’s witnesses, Sheree Jones, had resigned from Rockwall County Treasurer and pled guilty to theft and repayment of $2,000 from the county. She also had confessed to sheriff’s deputies when they questioned her, she testified during the trial of Sumrow.
“She accepted responsibility,” Schomburger said. “She went out in front of a judge and said, ‘I did it’.”
“Folks, there wasn’t any remorse,” Schomburger added. He cited the fact that a defense witness during the sentencing hearing, Brett Gilbert, the Rockwall County adult probation officer, had not been able to say Sumrow had shown remorse. Schomburger had asked Gilbert if Sumrow had shown remorse, and Gilbert said no.
Gilbert had testified that his long experience in his position supported his personal opinion that Sumrow would make a good candidate for probation.
“I’ve known Ray for a long time,” he said. “He meets all the qualifications in my book. He’s always been up front with me.” Under Wheeler’s questioning, he said remorse is a quality used in determining a recommendation of probation.
Schomburger also discussed the severity of the crime in relation to Sumrow’s position.
“He’s stealing in his capacity of district attorney of Rockwall County.” He said, “This is the man who was responsible for justice in Rockwall County.
“People expect the criminal justice system to be fair, he said. “This calls into question every single decision he made.”
“You can send a loud and clear message, folks, in this case, and that is if you steal from the people, if you use your office in criminal proceedings, you will go to the penitentiary.
“If there is another Ray Sumrow that is tempted, and if there is another one of him out there, he will remember it. That will speak loud and clear.
“If the oath of office he took is not important — probation,” Schomburger said. “Imprisonment is the right thing and the hard thing to do.”
Wheeler had told the jury that Sumrow deserved an opportunity to try probation. Sumrow is suffering, he said, from loss of law license, loss of career, and shame in the community.
“He’ll have to suffer with that the rest of his life,” he said. He added that keeping Sumrow on probation keeps him working and meeting his obligations, not “just being fed at a penitentiary.”
Collin County assistant district attorney Jim Skinner also presented arguments to the jury. “We want to deter others. What message do you send to every public elected official in the State of Texas, and what more, to every district attorney?”
“He still hasn’t resigned as district attorney, don’t be distracted from the emotion in this case,” Skinner said.
Emotion had been shown by Wheeler’s two grown daughters, who, in testifying for the defense, had sobbed at moments.
Thursday, June 12, 2008
Monday, June 9, 2008
another request for the truth
RICHARD L. ELLISON, P.C.
Attorney at Law
327 Earl Garrett, Suite 106
Kerrville, Texas 78028
Phone: (830) 792-5601
Facsimile: (830) 792-5602
Board Certified in Civil Trial Law E-Mail: rellison@richellison.com and Personal Injury Trial Law,
Texas Board of Legal Specialization
June 9, 2008
By fax to 512 481-1992
Original will not follow
Claire V. Morris Sloan
Assistant Attorney General
Office of the Attorney General
Education and Enforcement Section
Open Records Division
P.O. Box 12548
Austin, TX 78711-2548
Re: Ruling Request 316960
Dear Ms. Sloan,
I am submitting this letter to try to expedite the handling of Clint Griffin’s May 27 of this year. Since I have been requesting this information since January, I believe that the request is too late and Mr. Sutton has waived any right to request an opinion. Without waiving my objection, I will make clear that I do not seek information that is confidential under the Public Information Act. Specifically, I do not want to see social security numbers, bank account or credit card account numbers, telephone numbers or addresses of personnel. Nor do I want to see information that would jeopardize an ongoing investigation, or that would reveal information of past criminal investigations.
Mr. Sutton allowed me to review limited information at his office on April 30. This included computer generated account statements for the escrow fund and asset forfeiture fund for the fiscal year ended 8-31-07. Also, the bank statements and cancelled checks for the forfeiture fund for the same fiscal year, and two sets of credit card statements. Mr. Sutton’s assistant, Janet Jones, redacted the account numbers. My review of the documents provided revealed the following:
Claire V. Morris Sloan
June 9, 2008
Page 2
Check date amount to for
2739 08-22-07 $21,475 TIBA Hawaii trip
2530 09-07-06 3,125 cash “office conference”
2546 09-29-06 6,000 cash “office conference”
2632 02-20-07 4,800 cash “office conference”
2702 06-07-07 1,200 cash “office conference”
2729 07-31-07 3,000 E.K. Prohl “South Pacific conference”
I have requested that Mr. Sutton provide additional documentation to explain what these checks paid for. Specifically, I have requested vouchers and receipts to document the use of the money. I have also requested the program brochures for the conferences. I do not object to redacting the account numbers.
While we are waiting for your office’s determination, I request that you direct Mr. Griffin to produce copies of the account statements he let me view, i.e., for the escrow and special fund accounts for fiscal year ended 8-31-07. I will pay the reasonable copy charge in advance.
Finally, I have also requested the annual statements of expenditures from the escrow and forfeiture accounts from 8-3-04 to present. Again, I do not object to the redacting of the account numbers. Since Mr. Sutton allowed me to see the statements for the fiscal year ended 8-31-07, he cannot seriously assert that these records are not public information.
Very truly yours,
/S/
Richard L. Ellison
Cc: Clint T. Griffin
Attorney at Law
327 Earl Garrett, Suite 106
Kerrville, Texas 78028
Phone: (830) 792-5601
Facsimile: (830) 792-5602
Board Certified in Civil Trial Law E-Mail: rellison@richellison.com and Personal Injury Trial Law,
Texas Board of Legal Specialization
June 9, 2008
By fax to 512 481-1992
Original will not follow
Claire V. Morris Sloan
Assistant Attorney General
Office of the Attorney General
Education and Enforcement Section
Open Records Division
P.O. Box 12548
Austin, TX 78711-2548
Re: Ruling Request 316960
Dear Ms. Sloan,
I am submitting this letter to try to expedite the handling of Clint Griffin’s May 27 of this year. Since I have been requesting this information since January, I believe that the request is too late and Mr. Sutton has waived any right to request an opinion. Without waiving my objection, I will make clear that I do not seek information that is confidential under the Public Information Act. Specifically, I do not want to see social security numbers, bank account or credit card account numbers, telephone numbers or addresses of personnel. Nor do I want to see information that would jeopardize an ongoing investigation, or that would reveal information of past criminal investigations.
Mr. Sutton allowed me to review limited information at his office on April 30. This included computer generated account statements for the escrow fund and asset forfeiture fund for the fiscal year ended 8-31-07. Also, the bank statements and cancelled checks for the forfeiture fund for the same fiscal year, and two sets of credit card statements. Mr. Sutton’s assistant, Janet Jones, redacted the account numbers. My review of the documents provided revealed the following:
Claire V. Morris Sloan
June 9, 2008
Page 2
Check date amount to for
2739 08-22-07 $21,475 TIBA Hawaii trip
2530 09-07-06 3,125 cash “office conference”
2546 09-29-06 6,000 cash “office conference”
2632 02-20-07 4,800 cash “office conference”
2702 06-07-07 1,200 cash “office conference”
2729 07-31-07 3,000 E.K. Prohl “South Pacific conference”
I have requested that Mr. Sutton provide additional documentation to explain what these checks paid for. Specifically, I have requested vouchers and receipts to document the use of the money. I have also requested the program brochures for the conferences. I do not object to redacting the account numbers.
While we are waiting for your office’s determination, I request that you direct Mr. Griffin to produce copies of the account statements he let me view, i.e., for the escrow and special fund accounts for fiscal year ended 8-31-07. I will pay the reasonable copy charge in advance.
Finally, I have also requested the annual statements of expenditures from the escrow and forfeiture accounts from 8-3-04 to present. Again, I do not object to the redacting of the account numbers. Since Mr. Sutton allowed me to see the statements for the fiscal year ended 8-31-07, he cannot seriously assert that these records are not public information.
Very truly yours,
/S/
Richard L. Ellison
Cc: Clint T. Griffin
Saturday, June 7, 2008
news article about Ellison testimony to Senate Committee
Senators call for more oversight of forfeiture funds
By Lucretia Fernandez
Courier staff
06/07/2008
Email to a friendPost a CommentPrinter-friendly
AUSTIN -- When District Attorney Michael McDougal came under scrutiny for use of forfeiture funds, voters and politicians debated whether he was spending it properly.
The firestorm occurred before the March Republican primary, and the longtime Montgomery County DA ultimately lost in a runoff to Brett Ligon.
But the forfeiture fallout was not over, and Thursday in Austin the issue was addressed in a Texas Senatorial Criminal Justice Committee hearing.
Sen. John Whitmire, D-Houston, who organized the hearing, campaigned to have 10 percent of forfeiture money go toward supporting drug courts during the 80th legislative session. The bill did not receive support from district attorneys or law enforcement because forfeiture money helps supplement their budgets. The bill did not pass.
On Thursday at the state Capitol, the Criminal Justice Committee, led by Lt. Gov. David Dewhurst, questioned witnesses and listened to comments from the public regarding the use and oversight of forfeiture funds. The main talking points were: who oversees the district attorney and how; whether certain expenditures violate the law; and whether the state can ensure that a district attorney is prosecuted.
"If we're seizing millions of dollars, we need to make sure to use it properly," Whitmire said.
Forfeiture funds are from money and items seized during a criminal investigation. The money is turned over to law enforcement agencies and district attorney offices after a conviction is made in a case. In many counties, the forfeiture money divided between the law enforcement agencies and district attorney with a 70-30 split, respectively, according to testimony.
Law enforcement is directed to use the money for "law enforcement purposes" only, and district attorney offices are to use it for "official purposes," according to the Texas Code of Criminal Procedure.
Dependence on forfeitures
More and more, the offices are leaning on the funds to supplement their budgets because counties and cities stress the need to keep down tax rates, said Rob Kepple, executive director of the Texas District and County Attorneys Association.
"It's this time of year when my district attorneys and county attorneys are pulling together their budgets and people are looking for funding from lots of different sources," Kepple said.
According to Houston Police Chief Harold Hunt, HPD relies on the supplemental funding for overtime, among other things.
"Why the hell should seized funds be used for funds that should be paid for through tax dollars?" Whitmire asked. "Why wouldn't council fund your overtime? These are (forfeiture) funds that you can't count on every year."
However, salaries are being supplemented by the fund in other counties as well.
From 2005-07, the Montgomery County District Attorney's Office spent $60,582 in forfeiture funds on salaries. The Fort Bend District Attorney's Office spent $38,678 on salaries.
A portion of the Montgomery County DA’s Office money spent on "salaries" included annual birthday checks of $100 to employees. But the majority of the money was used to pay part-time help and overtime. Much of the Fort Bend DA's Office "salary" expenditures supported several paychecks, including Social Security and retirement.
The money also is being used to purchase office supplies, computers, training, to run task forces and to maintain drug prevention programs.
Randall Sims, 47th District Attorney, who covers Potter and Armstrong counties, said the rural area of Central Texas, his office depends on the forfeiture money to help move the office forward.
"They are in dire need of the money," Sims said. "Right now, I'm trying to make our county a paperless trail, but that comes with an expensive price tag."
Questionable spending
While he doesn't agree with the forfeiture money being used to support office staffing issues, Whitmire focused on the main issue of the hearing, which was clearing up the law to avoid possible abuses of forfeiture money.
In Montgomery County, McDougal came under scrutiny after copies of Spec's receipts, listing purchases of margarita ingredients, were circulated throughout the community. Although McDougal first denied the receipts being connected to his office, he later learned the receipts were from a credit card purchase by an office investigator, who was reimbursed through the forfeiture account.
McDougal said he and First District Attorney David Bluestein signed off on the reimbursement not realizing it was for alcohol purchases, but merely a reimbursement for supplies used at a charity barbecue in which the office participated.
McDougal, although not summoned by the senatorial committee, attended the hearing Thursday. He did not make comments and did not want to speak with The Courier regarding the matter.
However, two Montgomery County residents voiced their concerns at the hearing.
"Forfeitures are public funds," said Jim Jenkins, reiterating Whitmire's stance that funds seized by public agencies, through the use of tax dollars, are the public's. "The district attorney is not confused, the auditor is not confused, I am not confused; and I'm sure you senators are not confused on the meaning of 'official purposes.'"
Jenkins pointed out an expenditure made by McDougal from the forfeiture account during a golf outing for Precinct 2 Constable Gene DeForest's re-election campaign. McDougal has said he believed the $1,200 check was going toward the Constable's Office, not to the constable’s campaign.
Jenkins said he also disapproved of the more than $50,000 in forfeiture money given to charities.
"I would like to see it returned," Jenkins said. "It is political patronage and politically corrupt."
Montgomery County resident Richard McDuffee stressed the importance of keeping governmental entities in check when it comes to spending.
"Everyone is wanting money, but no one is looking at our paychecks," McDuffee said.
Questionable forfeiture spending is also an issue in Kerr County in the race for the 198th District Attorney's Office. Attorney Richard Ellison is running for the seat in November, and he has questioned current District Attorney Ron Sutton, who is not running for election, on money spent for a conference in Hawaii, which included $14,000 in cash, Ellison testified Thursday.
Oversight
It's the questionable spending that has the senatorial committee asking how the state can create more oversight of the forfeiture account, including enforcement, Whitmire said.
Currently, forfeiture expenditures are supposed to go to county commissioners for approval. In Montgomery County, as in For Bend County, the county auditor reviews each expenditure, and asks for explanation and receipts of any questionable item. However, the final decision on the expenditure is still, in many cases, left to the district attorney, according to testimony.
Each year, audits are to be performed on the accounts and the results are sent to the Texas Attorney General's Office. But the AG’s Office only takes note of audits not submitted. It does not review the line items, said Eric Nichols, deputy attorney general for the Criminal Justice Division of the Attorney General's Office.
"We serve as a repository for the audits," Nichols said.
When asked what the attorney general could do if an alleged improper use of forfeiture funds was brought to the office's attention, Nichols said not much.
"Nothing gives us regulatory authority to do that (prosecute), and we have no criminal jurisdiction if it's such," he said.
The only thing the Attorney General's Office can do is ask the Texas Comptroller's Office to review the audit to see whether there is anything suspicious.
If the comptroller or anyone in the public believes something suspicious is occurring, the only way to bring charges against a district attorney would be to ask the Texas Rangers to investigate, Kepple testified. They could bring charges, such as theft and violation of fiduciary duties if warranted, and the Attorney General's Office could take a case before a grand jury for an indictment.
At that point, a special prosecutor would need to be appointed by a district judge to try the case. Whitmire expressed hesitation about the support a district attorney may have from district judges and questioned whether another political figure, outside local county politics, should be charged with appointing an attorney in such a case.
What’s next
Much of the “gray” areas of the law could be avoided if there were "more bones on the law," giving greater definition to “official purposes,” Kepple said.
Despite Whitmire’s desire to avoid itemizing the law, fearing senators would not be able to think of every worthy cause for the money to be spent, Kepple suggested at least making a list of how the money should not be spent. Kepple also said penalties should be attached for failures to comply with an annual audit.
The question, at the end of the hearing, which remained unanswered, was what agency or office should oversee the forfeiture expenditures. Some testimony suggested the Texas Comptroller's Office.
The issues are expected to be addressed in a bill to be presented during the next legislative session, beginning in January 2009.
©Houston Community Newspapers Online 2008
By Lucretia Fernandez
Courier staff
06/07/2008
Email to a friendPost a CommentPrinter-friendly
AUSTIN -- When District Attorney Michael McDougal came under scrutiny for use of forfeiture funds, voters and politicians debated whether he was spending it properly.
The firestorm occurred before the March Republican primary, and the longtime Montgomery County DA ultimately lost in a runoff to Brett Ligon.
But the forfeiture fallout was not over, and Thursday in Austin the issue was addressed in a Texas Senatorial Criminal Justice Committee hearing.
Sen. John Whitmire, D-Houston, who organized the hearing, campaigned to have 10 percent of forfeiture money go toward supporting drug courts during the 80th legislative session. The bill did not receive support from district attorneys or law enforcement because forfeiture money helps supplement their budgets. The bill did not pass.
On Thursday at the state Capitol, the Criminal Justice Committee, led by Lt. Gov. David Dewhurst, questioned witnesses and listened to comments from the public regarding the use and oversight of forfeiture funds. The main talking points were: who oversees the district attorney and how; whether certain expenditures violate the law; and whether the state can ensure that a district attorney is prosecuted.
"If we're seizing millions of dollars, we need to make sure to use it properly," Whitmire said.
Forfeiture funds are from money and items seized during a criminal investigation. The money is turned over to law enforcement agencies and district attorney offices after a conviction is made in a case. In many counties, the forfeiture money divided between the law enforcement agencies and district attorney with a 70-30 split, respectively, according to testimony.
Law enforcement is directed to use the money for "law enforcement purposes" only, and district attorney offices are to use it for "official purposes," according to the Texas Code of Criminal Procedure.
Dependence on forfeitures
More and more, the offices are leaning on the funds to supplement their budgets because counties and cities stress the need to keep down tax rates, said Rob Kepple, executive director of the Texas District and County Attorneys Association.
"It's this time of year when my district attorneys and county attorneys are pulling together their budgets and people are looking for funding from lots of different sources," Kepple said.
According to Houston Police Chief Harold Hunt, HPD relies on the supplemental funding for overtime, among other things.
"Why the hell should seized funds be used for funds that should be paid for through tax dollars?" Whitmire asked. "Why wouldn't council fund your overtime? These are (forfeiture) funds that you can't count on every year."
However, salaries are being supplemented by the fund in other counties as well.
From 2005-07, the Montgomery County District Attorney's Office spent $60,582 in forfeiture funds on salaries. The Fort Bend District Attorney's Office spent $38,678 on salaries.
A portion of the Montgomery County DA’s Office money spent on "salaries" included annual birthday checks of $100 to employees. But the majority of the money was used to pay part-time help and overtime. Much of the Fort Bend DA's Office "salary" expenditures supported several paychecks, including Social Security and retirement.
The money also is being used to purchase office supplies, computers, training, to run task forces and to maintain drug prevention programs.
Randall Sims, 47th District Attorney, who covers Potter and Armstrong counties, said the rural area of Central Texas, his office depends on the forfeiture money to help move the office forward.
"They are in dire need of the money," Sims said. "Right now, I'm trying to make our county a paperless trail, but that comes with an expensive price tag."
Questionable spending
While he doesn't agree with the forfeiture money being used to support office staffing issues, Whitmire focused on the main issue of the hearing, which was clearing up the law to avoid possible abuses of forfeiture money.
In Montgomery County, McDougal came under scrutiny after copies of Spec's receipts, listing purchases of margarita ingredients, were circulated throughout the community. Although McDougal first denied the receipts being connected to his office, he later learned the receipts were from a credit card purchase by an office investigator, who was reimbursed through the forfeiture account.
McDougal said he and First District Attorney David Bluestein signed off on the reimbursement not realizing it was for alcohol purchases, but merely a reimbursement for supplies used at a charity barbecue in which the office participated.
McDougal, although not summoned by the senatorial committee, attended the hearing Thursday. He did not make comments and did not want to speak with The Courier regarding the matter.
However, two Montgomery County residents voiced their concerns at the hearing.
"Forfeitures are public funds," said Jim Jenkins, reiterating Whitmire's stance that funds seized by public agencies, through the use of tax dollars, are the public's. "The district attorney is not confused, the auditor is not confused, I am not confused; and I'm sure you senators are not confused on the meaning of 'official purposes.'"
Jenkins pointed out an expenditure made by McDougal from the forfeiture account during a golf outing for Precinct 2 Constable Gene DeForest's re-election campaign. McDougal has said he believed the $1,200 check was going toward the Constable's Office, not to the constable’s campaign.
Jenkins said he also disapproved of the more than $50,000 in forfeiture money given to charities.
"I would like to see it returned," Jenkins said. "It is political patronage and politically corrupt."
Montgomery County resident Richard McDuffee stressed the importance of keeping governmental entities in check when it comes to spending.
"Everyone is wanting money, but no one is looking at our paychecks," McDuffee said.
Questionable forfeiture spending is also an issue in Kerr County in the race for the 198th District Attorney's Office. Attorney Richard Ellison is running for the seat in November, and he has questioned current District Attorney Ron Sutton, who is not running for election, on money spent for a conference in Hawaii, which included $14,000 in cash, Ellison testified Thursday.
Oversight
It's the questionable spending that has the senatorial committee asking how the state can create more oversight of the forfeiture account, including enforcement, Whitmire said.
Currently, forfeiture expenditures are supposed to go to county commissioners for approval. In Montgomery County, as in For Bend County, the county auditor reviews each expenditure, and asks for explanation and receipts of any questionable item. However, the final decision on the expenditure is still, in many cases, left to the district attorney, according to testimony.
Each year, audits are to be performed on the accounts and the results are sent to the Texas Attorney General's Office. But the AG’s Office only takes note of audits not submitted. It does not review the line items, said Eric Nichols, deputy attorney general for the Criminal Justice Division of the Attorney General's Office.
"We serve as a repository for the audits," Nichols said.
When asked what the attorney general could do if an alleged improper use of forfeiture funds was brought to the office's attention, Nichols said not much.
"Nothing gives us regulatory authority to do that (prosecute), and we have no criminal jurisdiction if it's such," he said.
The only thing the Attorney General's Office can do is ask the Texas Comptroller's Office to review the audit to see whether there is anything suspicious.
If the comptroller or anyone in the public believes something suspicious is occurring, the only way to bring charges against a district attorney would be to ask the Texas Rangers to investigate, Kepple testified. They could bring charges, such as theft and violation of fiduciary duties if warranted, and the Attorney General's Office could take a case before a grand jury for an indictment.
At that point, a special prosecutor would need to be appointed by a district judge to try the case. Whitmire expressed hesitation about the support a district attorney may have from district judges and questioned whether another political figure, outside local county politics, should be charged with appointing an attorney in such a case.
What’s next
Much of the “gray” areas of the law could be avoided if there were "more bones on the law," giving greater definition to “official purposes,” Kepple said.
Despite Whitmire’s desire to avoid itemizing the law, fearing senators would not be able to think of every worthy cause for the money to be spent, Kepple suggested at least making a list of how the money should not be spent. Kepple also said penalties should be attached for failures to comply with an annual audit.
The question, at the end of the hearing, which remained unanswered, was what agency or office should oversee the forfeiture expenditures. Some testimony suggested the Texas Comptroller's Office.
The issues are expected to be addressed in a bill to be presented during the next legislative session, beginning in January 2009.
©Houston Community Newspapers Online 2008
Wednesday, June 4, 2008
Senate hearings on forfeiture funds
I am testifying tomorrow to the Texas Senate Committee on Criminal Justice, which is holding hearings on forfeiture funds. Below is my letter to the chairman of the committee, Senator John Whitmire.
June 3, 2008
Senator John Whitmire
P.O. Box 12068
Capitol Station
Austin, Texas 78711
\
Re: Lack of accountability and transparency in asset forfeiture funds
(Hearing on Code Crim. Pro. Ch. 59)
Dear Senator Whitmire,
Thank you for allowing me to testify before the Criminal Justice Committee. I have attached copies of relevant documents in the appendix, and have prepared this letter to assure that I cover all the salient points. The gist is that the Attorney General refuses to enforce the audit requirements of Code of Crim. Pro. Ch. 59. Consequently, a district attorney - or a sheriff - can use an asset forfeiture fund however he sees fit, with no oversight.
In the case that I have investigated, that of the 198th Judicial District Attorney Ronald Sutton, he has spent thousands of dollars for questionable uses, e.g., multiple trips to Hawaii, new trucks, and thousands in cash withdrawals. Further, he has threatened to empty the fund if I win in the general election for DA against his chief assistant prosecutor.
Deficits in Ch. 59 of CCP
I have identified the following problems in the oversight of asset forfeiture funds:
- the Code of Crim. Pro. does not define “official uses” that the money can be used for;
- the Attorney General will not enforce the audit requirements;
- the Texas Comptroller will not audit the funds;
- the county commissioners and county judge claim they have no authority to audit;
- The Code does not require local sharing agreements be in writing;
- the Attorney General will not enforce the public information act.
Mr. Sutton’s forfeiture fund contains over $1.5 Million. Although he has refused to provide most of the information I requested under the Public Information Act, I have identified the following questionable expenditures:
$38,475 for Hawaii conference
In the last fiscal year, Mr. Sutton spent $79,000 for “training.” He wrote one check for $21,475 to TIBA (Texas Independent Bar Association) to cover travel, lodging, and seminar fees for a conference in Hawaii. TIBA’s website advertises that it sponsors trips to Hawaii and Cuba. He wrote checks for almost $14,000 in cash for “per diem” money for the same Hawaii trip.
Paying FICA contributions
Checks are written for FICA contributions from the special fund. I do not know any specific information, but this may violate Art. 59.06(d), which states that the state attorney:
… may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney … who is budgeted by the commissioners court … unless the commissioners court … first approves the expenditure.
Mr. Sutton does not submit a proposed budget for the special fund to the commissioners court, as required by CCP 59.06(d).
Paying FICA contributions may also violate IRS regulations.
New trucks
The chief assistant DA is provided with a new truck from the special fund. He maintains an active private practice, and is also running to succeed Mr. Sutton. I believe that he uses the truck for his private practice and his campaign. He is also provided with a credit card for gas, maintenance, etc.
In 2006, the DA bought a new truck for $39,927, and in 2007, another for $35,235. I believe he buys the vehicles from a local dealer in Junction. This raises several issues: does the DA make the best use of the money by buying through the state’s fleet program? Why doesn’t he retain vehicles that the sheriff seizes instead of buying new ones? Since his chief assistant maintains his own private practice, does the DA require him to account for miles put on it for private purposes? Is this an “in kind” campaign contribution?
Miscellaneous
- $8,400 cash for printer
- $404 refund to Ronald Sutton for “camera overpay”
- $1,000 to Garvine Adams (office manager) for “supplement”
- $1,200 cash for Corpus Christi trip by investigator and two prosecutors
- $850 month lease payments to Amos Barton, chief assistant, for branch office (Mr. Barton maintains his private practice and campaign headquarters there)
- $202 for “Hawaii ticket change”
- $410.95 Visa charge to “Gal Galls” in Kentucky
- $541.25 Advanta card charge to J&J Signs and Banners in Kerrville
- $200 charge for coffee pot
- $79,000 for furniture donated to Kimble County, bought from a local Junction store.
Some of these are relatively small amounts, and may be perfectly legitimate; but without an audit it is impossible to say.
I have requested vouchers to show how the $14,000 checks for cash were used, but Mr. Sutton refuses to comply. Further, the information he has provided covers only the last fiscal year. I have been told that the Hawaii trip is an annual event.
Refusal to pay to extradite murderer
Meanwhile, the San Antonio Express news reported that Mr. Sutton has refused to use money from the forfeiture fund to pay for the translation of documents in a murder case, and he has done nothing to extradite a fugitive who murdered a Kerrville woman (Ex. “O”).
Background
I am running as the Democratic candidate for the office of the 198th Judicial District Attorney, which covers Kerr, Kimble, Menard, McCullough and Mason Counties. Ronald Sutton, the current DA, has held that position for close to thirty years. He has endorsed my opponent, who is currently his chief assistant DA.
After I announced my candidacy, I was contacted by several people who suggested that I look into the asset forfeiture fund that Mr. Sutton maintains. I was told that he uses the fund to take his entire staff and their spouses, and others who are not his employees, to Hawaii for seminars. Since 2004 or 2005, when the sheriff seized $2.4 million during a traffic stop, Mr. Sutton’s fund has always had at least $1.5 Million. The most recent report that Mr. Sutton submitted to the OAG, for fiscal year 09/09/06 to 08/31/07, showed a beginning balance of $1,532,428. This is significant amount of money for a small office serving a predominantly rural rural district. Mr. Sutton is its only full time prosecutor.
The fund is replenished regularly, as the sheriff makes major seizures of cash from drug sales being smuggled to Mexico. The DA gets some of that money under a verbal local agreement with the sheriff.
Exhibits
The appendix contains the following exhibits:
A. excerpts from Ch. 59 Tex. Code Crim. Pro. ;
B. Attorney General Opinion No. DM-247, concluding that the county commissioners courts are required to conduct annual audits of multi-district prosecutors’ offices;
C. Holmes v. Morales, 924 S.W.2d 39 (Tex. 1996) - holding that a district attorney’s office is a governmental office subject to the open records laws;
D. My initial FOIA Request to Mr. Sutton (Jan. 9, 2008);
E. Mr. Sutton’s response letter (Jan. 15, 2008) in which he wrote:
1. The Code of Crim. Pro. does not require him to have the forfeiture fund audited because his is a multi-county district.
2. His local agreement with the sheriff is oral.
3. The fund may not be available to his successor.
F. DA’s budget requests to commissioner’s court for his general fund:
1. 2003-04
2. 2004-05
3. 2005-06
4. 2006-07
5. 2007-08
G. DA’s Asset Forfeiture Reports to Attorney General:
1. 9/1/03 to 8/31/04
2. 9/1/05 to 8/31/06
3. 9/1/06 to 8/31/07
H. Sheriff Chapman’s letter response to my FOIA request (March 7, 2008);
I. My letter to the Attorney General requesting it enforce the audit provisions of Ch. 59 (Feb. 13, 2008);
J. Kent S. Richardson’s (Asst. AG) letter refusing to refer matter to Texas Comptroller, on grounds that Mr. Sutton had complied with the audit requirement by submitting his report on the correct form (Feb. 28, 2008);
K. Comptroller letter refusing to audit on grounds that Attorney General said Mr. Sutton had complied, and that it would take legislative action to change anything (May 15, 2008);
L. Attorney General’s letter to me advising that AG “must accept the statement” from Mr. Sutton that he hads complied with the open records act (April 22, 2008);
M. Letter from Kimble County Treasurer that its office has no records re. DA AF fund (Feb. 25, 2008);
N. Excerpts from audited financial reports of Kimble County for years ending
1. Dec. 31, 2003
2 Dec. 31, 2004
3. Dec. 31, 2005
4. Dec. 31, 2004
O. San Antonio Express News article about DA’s refusal to pay for translation of documents for arrest and extradition of murderer.
Discussion
Attorney General refuses to require audits
I filed an open records request with Mr. Sutton in early January of this year. I requested copies of the audited reports and budgets required by Code of Crim. Pro. Art. 59.06, and other public information. Mr. Sutton wrote in response that he does not have his fund audited, because the code does not require it. When I requested the Office of the Attorney General require an audit as required by CCP 59.06, the OAG refused on the grounds that Mr. Sutton was in compliance with the law, even though he had never submitted audited reports. The Comptroller also refused to do anything, on the grounds that the AG said Mr. Sutton was in compliance.
Local officials also refuse to audit
I had no better luck with the local officials. The Kimble County Judge told me that he lacks the authority to require audits of the fund, and he didn’t know what Mr. Sutton did with most of the money. Judge Delbert Roberts told me that Mr. Sutton had donated some furniture to the courthouse for the judges and commissioners, and paid to have some of the courthouse repainted. I believe he told me that Mr. Sutton bought the furniture from a Junction and paid $79,000 for it.
It is my opinion that all these officials have failed to comply with the plain language of Art. 59.06(g)(2), which requires:
All law enforcement agencies and attorneys representing the state who receive proceeds or property under this chapter shall account for the seizure, forfeiture, receipt, and specific expenditure of all such proceeds in an audit, which is to be performed annually by the commissioners court or governing body of a municipality, as appropriate…. The audit shall be completed on a form provide by the attorney general.
The Code requires conformity to accepted accounting and audit standards in at least two other places:
…all forfeited property shall be administered by the attorney representing the state, acting as the agent for the state, in accordance with accepted accounting practices….
“Expenditures are subject to audit provisions established under this article.”
My conclusion is further supported by Attorney General Opinion No. DM-247 (Sept. 3, 1993):
The commissioner’s courts of all the counties of a multicounty judicial district must conduct, separately or jointly, an annual audit of the forfeiture fund of the district attorney or criminal district attorney of that district.
If the DA fails to comply, then the AG is charged with enforcing the audit requirement.
Failure to comply with Public Information Act
I encountered another problem when Mr. Sutton failed to provide me with the bulk of the public information that I requested. All he has produced is limited information for the last fiscal year. He has not produced any documentation to explain the thousands of dollars spent on the Hawaii trip. When I recently requested production of the vouchers for $14,000 in cash withdrawals, Mr. Sutton’s lawyer requested an opinion from the OAG open records division, claiming that it was confidential information. The request for an AG opinion was not only late, it was a stalling tactic. I have made clear that I am not seeking personal information, and I do not object to the redacting of account numbers, social security numbers, addresses, and telephone numbers).
The Office of the Attorney General wrote to me that if a public official claims he has fully complied with a public information request, the OAG must accept the statement as true. This leaves me in the position of having to file a lawsuit to obtain the information that the DA should have produced under the Public Information Act. I will do so, but that does not address the greater issue of the public’s right to know.
Comptroller refuses to audit
The Comptroller, whom the code charges with the responsibility to audit the fund, refused to do so. Martin Cherry, the general counsel, advised that “any changes that would establish different procedures concerning these funds will require legislative action.” (Ex. “K”).
Why audit? - goal displacement, potential for abuse
Public administration and law enforcement experts have argued that in some cases there has been a “goal displacement” that “motivates law enforcement agencies to implement drug enforcement strategies that aggressively pursue civil asset forfeitures as a means of supplementing their budgets rather than as a legitimate tool for decreasing the supply of illicit drugs.”
While asset forfeiture is a legitimate law enforcement activity, it “…has an inherent potential for law enforcement abuse and arbitrary government action.” Further, the temptation and the potential for abuse “are proportionate with personal interest - as personal interest decreases, so does the potential for abuse.” As Shoemaker suggests, “in some cases, asset forfeitures may be sufficient to allow an agency or task force to become self-sufficient, thus, decreasing its accountability to higher authorities.”
The smaller the agency, the more potential for abuse. Federal agencies tend to be more systematically managed, with layers of bureaucracy that discourage misuse of funds. Local agencies are smaller, with less oversight, and therefore present greater opportunity for abuse (Sigler and Vecchi). As stated above, the Texas Attorney General disclaims any duty or authority to require audits, leaving district attorneys and local law enforcement officials free to spend the money as they see fit, with no concern they will be called to account.
The Dallas Morning News reported on March 26 of this year that the district attorney of Rockwall County was convicted of theft by a public servant for his misuse of his office account. The judge who sentenced him to prison said he hoped the case would send a message that those holding elective office cannot be "tempted to feed themselves at the public trough. A public official, like Caesar's wife, must be above suspicion."
All of Mr. Sutton’s uses of the money may be proper, but his refusal to submit to audits and to respond fully to my open records request give the appearance of impropriety, and call into question the integrity of the criminal justice system.
No written local agreement with sheriff
I also discovered that Mr. Sutton and the sheriff’s local agreement is not in writing. Texas allows state law enforcement agencies and district attorneys to enter “local agreements” to divide the locals’ share of the spoils (Crim. Code, Art. 59.06(a)). The code does not require the agreement be reduced to writing.
In Kimble County the sheriff and DEA have a verbal agreement for a “Sheriff’s Office 80%-DEA 20% split.” The sheriff and district attorney divide up the local share. From 1992 through August, 2006, the sheriff and DA split the proceeds 50/50 under a written local agreement (App. “H”). In August, 2006, the sheriff and DA renegotiated their local agreement and “settled on a Sheriff’s Office 70%-DA’s Office 30% split,” by verbal agreement. Id.
CCP Ch. 59 does not define “official purposes”
If there is a local agreement, the state’s attorney and law enforcement agency may retain the assets for “official purposes.” The Code does not define “official purposes” or give examples.
Operation Money Clip
Mr. Sutton maintains a significant asset fund, particularly in light of his small office. As stated, since a major bust in 2004, the fund has maintained a balance in excess of $1.5 Million. In 2004, the sheriff seized $2.4 Million in a bust that started a nationwide law enforcement operation called “Operation Money Clip.”
In the last fiscal year, Mr. Sutton made total expenditures from the forfeiture fund of $573,082. Expenditures included:
- Salaries $ 236,934
- Equipment (includes vehicles, computers, etc.) 112,349
- Supplies 94,709
- Training 79,070
- Miscellaneous fees 10,472
- Donations 8,243
The reports filed with the OAG do no provide any specific information on these broad categories. For example, how did a district attorney’s office with only one full time prosecutor spend $79,070 in one year for “training”? Who went on the Hawaii trip? Has his chief assistant used resources from the special fund for his campaign? What are the FICA contributions paid for, and for whose benefit?
As stated, there may be legitimate explanations for all of these questions, but without access to the records, and an audit, we are left in the dark. This violates the letter and spirit of Criminal Code Ch. 59 and the public information act. My sense is that Mr. Sutton intend to avoid producing any more information until after the general election, when he will be out of office. Then it won’t be his problem.
Conclusions and Recommendations
Texas law on asset forfeiture needs to be strengthened to ensure that local agencies and district attorneys use forfeited assets for legitimate purposes, and properly account for their expenditures. The statute should:
- specify uniform accounting standards and practices for special funds;
- require the commissioner’s courts to discharge their oversight responsibility;
- define “official purposes” for which funds may be spent;
- require the OAG to enforce the audit provisions;
- penalize district attorneys that fail to comply;
- require local agreements be in writing.
I hope this is helpful, and I will be happy to answer any questions.
Sincerely yours,
/S/
Richard L. Ellison
June 3, 2008
Senator John Whitmire
P.O. Box 12068
Capitol Station
Austin, Texas 78711
\
Re: Lack of accountability and transparency in asset forfeiture funds
(Hearing on Code Crim. Pro. Ch. 59)
Dear Senator Whitmire,
Thank you for allowing me to testify before the Criminal Justice Committee. I have attached copies of relevant documents in the appendix, and have prepared this letter to assure that I cover all the salient points. The gist is that the Attorney General refuses to enforce the audit requirements of Code of Crim. Pro. Ch. 59. Consequently, a district attorney - or a sheriff - can use an asset forfeiture fund however he sees fit, with no oversight.
In the case that I have investigated, that of the 198th Judicial District Attorney Ronald Sutton, he has spent thousands of dollars for questionable uses, e.g., multiple trips to Hawaii, new trucks, and thousands in cash withdrawals. Further, he has threatened to empty the fund if I win in the general election for DA against his chief assistant prosecutor.
Deficits in Ch. 59 of CCP
I have identified the following problems in the oversight of asset forfeiture funds:
- the Code of Crim. Pro. does not define “official uses” that the money can be used for;
- the Attorney General will not enforce the audit requirements;
- the Texas Comptroller will not audit the funds;
- the county commissioners and county judge claim they have no authority to audit;
- The Code does not require local sharing agreements be in writing;
- the Attorney General will not enforce the public information act.
Mr. Sutton’s forfeiture fund contains over $1.5 Million. Although he has refused to provide most of the information I requested under the Public Information Act, I have identified the following questionable expenditures:
$38,475 for Hawaii conference
In the last fiscal year, Mr. Sutton spent $79,000 for “training.” He wrote one check for $21,475 to TIBA (Texas Independent Bar Association) to cover travel, lodging, and seminar fees for a conference in Hawaii. TIBA’s website advertises that it sponsors trips to Hawaii and Cuba. He wrote checks for almost $14,000 in cash for “per diem” money for the same Hawaii trip.
Paying FICA contributions
Checks are written for FICA contributions from the special fund. I do not know any specific information, but this may violate Art. 59.06(d), which states that the state attorney:
… may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney … who is budgeted by the commissioners court … unless the commissioners court … first approves the expenditure.
Mr. Sutton does not submit a proposed budget for the special fund to the commissioners court, as required by CCP 59.06(d).
Paying FICA contributions may also violate IRS regulations.
New trucks
The chief assistant DA is provided with a new truck from the special fund. He maintains an active private practice, and is also running to succeed Mr. Sutton. I believe that he uses the truck for his private practice and his campaign. He is also provided with a credit card for gas, maintenance, etc.
In 2006, the DA bought a new truck for $39,927, and in 2007, another for $35,235. I believe he buys the vehicles from a local dealer in Junction. This raises several issues: does the DA make the best use of the money by buying through the state’s fleet program? Why doesn’t he retain vehicles that the sheriff seizes instead of buying new ones? Since his chief assistant maintains his own private practice, does the DA require him to account for miles put on it for private purposes? Is this an “in kind” campaign contribution?
Miscellaneous
- $8,400 cash for printer
- $404 refund to Ronald Sutton for “camera overpay”
- $1,000 to Garvine Adams (office manager) for “supplement”
- $1,200 cash for Corpus Christi trip by investigator and two prosecutors
- $850 month lease payments to Amos Barton, chief assistant, for branch office (Mr. Barton maintains his private practice and campaign headquarters there)
- $202 for “Hawaii ticket change”
- $410.95 Visa charge to “Gal Galls” in Kentucky
- $541.25 Advanta card charge to J&J Signs and Banners in Kerrville
- $200 charge for coffee pot
- $79,000 for furniture donated to Kimble County, bought from a local Junction store.
Some of these are relatively small amounts, and may be perfectly legitimate; but without an audit it is impossible to say.
I have requested vouchers to show how the $14,000 checks for cash were used, but Mr. Sutton refuses to comply. Further, the information he has provided covers only the last fiscal year. I have been told that the Hawaii trip is an annual event.
Refusal to pay to extradite murderer
Meanwhile, the San Antonio Express news reported that Mr. Sutton has refused to use money from the forfeiture fund to pay for the translation of documents in a murder case, and he has done nothing to extradite a fugitive who murdered a Kerrville woman (Ex. “O”).
Background
I am running as the Democratic candidate for the office of the 198th Judicial District Attorney, which covers Kerr, Kimble, Menard, McCullough and Mason Counties. Ronald Sutton, the current DA, has held that position for close to thirty years. He has endorsed my opponent, who is currently his chief assistant DA.
After I announced my candidacy, I was contacted by several people who suggested that I look into the asset forfeiture fund that Mr. Sutton maintains. I was told that he uses the fund to take his entire staff and their spouses, and others who are not his employees, to Hawaii for seminars. Since 2004 or 2005, when the sheriff seized $2.4 million during a traffic stop, Mr. Sutton’s fund has always had at least $1.5 Million. The most recent report that Mr. Sutton submitted to the OAG, for fiscal year 09/09/06 to 08/31/07, showed a beginning balance of $1,532,428. This is significant amount of money for a small office serving a predominantly rural rural district. Mr. Sutton is its only full time prosecutor.
The fund is replenished regularly, as the sheriff makes major seizures of cash from drug sales being smuggled to Mexico. The DA gets some of that money under a verbal local agreement with the sheriff.
Exhibits
The appendix contains the following exhibits:
A. excerpts from Ch. 59 Tex. Code Crim. Pro. ;
B. Attorney General Opinion No. DM-247, concluding that the county commissioners courts are required to conduct annual audits of multi-district prosecutors’ offices;
C. Holmes v. Morales, 924 S.W.2d 39 (Tex. 1996) - holding that a district attorney’s office is a governmental office subject to the open records laws;
D. My initial FOIA Request to Mr. Sutton (Jan. 9, 2008);
E. Mr. Sutton’s response letter (Jan. 15, 2008) in which he wrote:
1. The Code of Crim. Pro. does not require him to have the forfeiture fund audited because his is a multi-county district.
2. His local agreement with the sheriff is oral.
3. The fund may not be available to his successor.
F. DA’s budget requests to commissioner’s court for his general fund:
1. 2003-04
2. 2004-05
3. 2005-06
4. 2006-07
5. 2007-08
G. DA’s Asset Forfeiture Reports to Attorney General:
1. 9/1/03 to 8/31/04
2. 9/1/05 to 8/31/06
3. 9/1/06 to 8/31/07
H. Sheriff Chapman’s letter response to my FOIA request (March 7, 2008);
I. My letter to the Attorney General requesting it enforce the audit provisions of Ch. 59 (Feb. 13, 2008);
J. Kent S. Richardson’s (Asst. AG) letter refusing to refer matter to Texas Comptroller, on grounds that Mr. Sutton had complied with the audit requirement by submitting his report on the correct form (Feb. 28, 2008);
K. Comptroller letter refusing to audit on grounds that Attorney General said Mr. Sutton had complied, and that it would take legislative action to change anything (May 15, 2008);
L. Attorney General’s letter to me advising that AG “must accept the statement” from Mr. Sutton that he hads complied with the open records act (April 22, 2008);
M. Letter from Kimble County Treasurer that its office has no records re. DA AF fund (Feb. 25, 2008);
N. Excerpts from audited financial reports of Kimble County for years ending
1. Dec. 31, 2003
2 Dec. 31, 2004
3. Dec. 31, 2005
4. Dec. 31, 2004
O. San Antonio Express News article about DA’s refusal to pay for translation of documents for arrest and extradition of murderer.
Discussion
Attorney General refuses to require audits
I filed an open records request with Mr. Sutton in early January of this year. I requested copies of the audited reports and budgets required by Code of Crim. Pro. Art. 59.06, and other public information. Mr. Sutton wrote in response that he does not have his fund audited, because the code does not require it. When I requested the Office of the Attorney General require an audit as required by CCP 59.06, the OAG refused on the grounds that Mr. Sutton was in compliance with the law, even though he had never submitted audited reports. The Comptroller also refused to do anything, on the grounds that the AG said Mr. Sutton was in compliance.
Local officials also refuse to audit
I had no better luck with the local officials. The Kimble County Judge told me that he lacks the authority to require audits of the fund, and he didn’t know what Mr. Sutton did with most of the money. Judge Delbert Roberts told me that Mr. Sutton had donated some furniture to the courthouse for the judges and commissioners, and paid to have some of the courthouse repainted. I believe he told me that Mr. Sutton bought the furniture from a Junction and paid $79,000 for it.
It is my opinion that all these officials have failed to comply with the plain language of Art. 59.06(g)(2), which requires:
All law enforcement agencies and attorneys representing the state who receive proceeds or property under this chapter shall account for the seizure, forfeiture, receipt, and specific expenditure of all such proceeds in an audit, which is to be performed annually by the commissioners court or governing body of a municipality, as appropriate…. The audit shall be completed on a form provide by the attorney general.
The Code requires conformity to accepted accounting and audit standards in at least two other places:
…all forfeited property shall be administered by the attorney representing the state, acting as the agent for the state, in accordance with accepted accounting practices….
“Expenditures are subject to audit provisions established under this article.”
My conclusion is further supported by Attorney General Opinion No. DM-247 (Sept. 3, 1993):
The commissioner’s courts of all the counties of a multicounty judicial district must conduct, separately or jointly, an annual audit of the forfeiture fund of the district attorney or criminal district attorney of that district.
If the DA fails to comply, then the AG is charged with enforcing the audit requirement.
Failure to comply with Public Information Act
I encountered another problem when Mr. Sutton failed to provide me with the bulk of the public information that I requested. All he has produced is limited information for the last fiscal year. He has not produced any documentation to explain the thousands of dollars spent on the Hawaii trip. When I recently requested production of the vouchers for $14,000 in cash withdrawals, Mr. Sutton’s lawyer requested an opinion from the OAG open records division, claiming that it was confidential information. The request for an AG opinion was not only late, it was a stalling tactic. I have made clear that I am not seeking personal information, and I do not object to the redacting of account numbers, social security numbers, addresses, and telephone numbers).
The Office of the Attorney General wrote to me that if a public official claims he has fully complied with a public information request, the OAG must accept the statement as true. This leaves me in the position of having to file a lawsuit to obtain the information that the DA should have produced under the Public Information Act. I will do so, but that does not address the greater issue of the public’s right to know.
Comptroller refuses to audit
The Comptroller, whom the code charges with the responsibility to audit the fund, refused to do so. Martin Cherry, the general counsel, advised that “any changes that would establish different procedures concerning these funds will require legislative action.” (Ex. “K”).
Why audit? - goal displacement, potential for abuse
Public administration and law enforcement experts have argued that in some cases there has been a “goal displacement” that “motivates law enforcement agencies to implement drug enforcement strategies that aggressively pursue civil asset forfeitures as a means of supplementing their budgets rather than as a legitimate tool for decreasing the supply of illicit drugs.”
While asset forfeiture is a legitimate law enforcement activity, it “…has an inherent potential for law enforcement abuse and arbitrary government action.” Further, the temptation and the potential for abuse “are proportionate with personal interest - as personal interest decreases, so does the potential for abuse.” As Shoemaker suggests, “in some cases, asset forfeitures may be sufficient to allow an agency or task force to become self-sufficient, thus, decreasing its accountability to higher authorities.”
The smaller the agency, the more potential for abuse. Federal agencies tend to be more systematically managed, with layers of bureaucracy that discourage misuse of funds. Local agencies are smaller, with less oversight, and therefore present greater opportunity for abuse (Sigler and Vecchi). As stated above, the Texas Attorney General disclaims any duty or authority to require audits, leaving district attorneys and local law enforcement officials free to spend the money as they see fit, with no concern they will be called to account.
The Dallas Morning News reported on March 26 of this year that the district attorney of Rockwall County was convicted of theft by a public servant for his misuse of his office account. The judge who sentenced him to prison said he hoped the case would send a message that those holding elective office cannot be "tempted to feed themselves at the public trough. A public official, like Caesar's wife, must be above suspicion."
All of Mr. Sutton’s uses of the money may be proper, but his refusal to submit to audits and to respond fully to my open records request give the appearance of impropriety, and call into question the integrity of the criminal justice system.
No written local agreement with sheriff
I also discovered that Mr. Sutton and the sheriff’s local agreement is not in writing. Texas allows state law enforcement agencies and district attorneys to enter “local agreements” to divide the locals’ share of the spoils (Crim. Code, Art. 59.06(a)). The code does not require the agreement be reduced to writing.
In Kimble County the sheriff and DEA have a verbal agreement for a “Sheriff’s Office 80%-DEA 20% split.” The sheriff and district attorney divide up the local share. From 1992 through August, 2006, the sheriff and DA split the proceeds 50/50 under a written local agreement (App. “H”). In August, 2006, the sheriff and DA renegotiated their local agreement and “settled on a Sheriff’s Office 70%-DA’s Office 30% split,” by verbal agreement. Id.
CCP Ch. 59 does not define “official purposes”
If there is a local agreement, the state’s attorney and law enforcement agency may retain the assets for “official purposes.” The Code does not define “official purposes” or give examples.
Operation Money Clip
Mr. Sutton maintains a significant asset fund, particularly in light of his small office. As stated, since a major bust in 2004, the fund has maintained a balance in excess of $1.5 Million. In 2004, the sheriff seized $2.4 Million in a bust that started a nationwide law enforcement operation called “Operation Money Clip.”
In the last fiscal year, Mr. Sutton made total expenditures from the forfeiture fund of $573,082. Expenditures included:
- Salaries $ 236,934
- Equipment (includes vehicles, computers, etc.) 112,349
- Supplies 94,709
- Training 79,070
- Miscellaneous fees 10,472
- Donations 8,243
The reports filed with the OAG do no provide any specific information on these broad categories. For example, how did a district attorney’s office with only one full time prosecutor spend $79,070 in one year for “training”? Who went on the Hawaii trip? Has his chief assistant used resources from the special fund for his campaign? What are the FICA contributions paid for, and for whose benefit?
As stated, there may be legitimate explanations for all of these questions, but without access to the records, and an audit, we are left in the dark. This violates the letter and spirit of Criminal Code Ch. 59 and the public information act. My sense is that Mr. Sutton intend to avoid producing any more information until after the general election, when he will be out of office. Then it won’t be his problem.
Conclusions and Recommendations
Texas law on asset forfeiture needs to be strengthened to ensure that local agencies and district attorneys use forfeited assets for legitimate purposes, and properly account for their expenditures. The statute should:
- specify uniform accounting standards and practices for special funds;
- require the commissioner’s courts to discharge their oversight responsibility;
- define “official purposes” for which funds may be spent;
- require the OAG to enforce the audit provisions;
- penalize district attorneys that fail to comply;
- require local agreements be in writing.
I hope this is helpful, and I will be happy to answer any questions.
Sincerely yours,
/S/
Richard L. Ellison
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