Just northwest of Houston, in Brenham – a town known for Blue Bell ice cream – a politician was accused of ethics violations.
Prosecutors brought charges against Robbie Gail Charette, a candidate for a judicial seat in Washington County, for errors related to financial paperwork and political ads. But her attorney, Lewis Thomas, argued her case should have been first reviewed by the Texas Ethics Commission.
“It violates Ms. Charette’s due process. She didn’t have the opportunity – neither the notice or the opportunity – to resolve these complaints administratively prior to indictment,” Thomas said during oral arguments in front of the Texas Court of Criminal Appeals.
Texas’ highest criminal court agreed and threw out her case in September – potentially setting a precedent that the commission has sole authority to enforce certain laws related to campaign finance, political advertising and lobbyists.
In practice, this means prosecutors must go to the commission before filing charges in these cases – at least for now. The Charette case is set to be reheard by an appellate court.
Supporters say the ruling as it stands will curb the actions of rogue district attorneys. But critics argue that the ruling erodes election integrity by making it more difficult for prosecutors to go after politicians and lobbyists who act unethically.
“This from a time perspective, limits criminal prosecutors’ power,” said David Kwok, an associate professor at the University of Houston Law Center. “But if these really are serious issues, we might imagine that the TEC might be prompt about their process.”
Just after the Charette opinion was issued, the ethics commission passed an emergency rule allowing commissioners to bypass comprehensive reviews of ethics complaints. Instead, they can quickly rule on whether to allow prosecution.
“I think it’s pretty seamless, and that’s the reason we did the rule to keep it very efficient where there’s no delay and no impediment to any lawful prosecution,” Commission Chair Randall Erben said.
J.R. Johnson, executive director of the Texas Ethics Commission, said commissioners don’t expect the ruling to significantly impact their workload – and that they have the capacity to quickly process complaints.
“We are confident that we will not be an undue impediment to the enforcement of criminal violations of these ethics laws,” he said.
Implications in Fort Bend County
The Charette ruling has already been invoked in at least one criminal case.
In September, Fort Bend County Judge KP George was accused of working with a staffer to create fake racist attacks against his own campaign.
But Fort Bend County District Attorney Brian Middleton, out of concern the Charette ruling would apply here, pushed off indicting George until the day the statute of limitations was set to expire, waiting on the ethics commission to respond.
Middleton said this is how the ruling can tie district attorneys’ hands.
“When we’re working on short timelines, it’s important that we have what’s guaranteed by the Texas Constitution, which is the full discretion with criminal prosecution,” he said.
When the district attorney’s office didn’t hear back in time from the ethics commission, prosecutors moved forward with criminal charges against George.
They eventually received a referral from the ethics commission and re-indicted George.
His attorney, Chad Dick, argued that George’s due process rights had been violated and that the case should be thrown out.
A district court judge sided with prosecutors. George and his attorney are now bringing the matter before the Fourteenth Court of Appeals.