August
31, 2006
"No Probable Cause"
By Jack D. McNamara
What
we call “news”
here in America fills the air. We are currently pounded by grand scale
news such as the commemoration of the Katrina hurricane simultaneously
with that of the “9/11” tragedy five years ago.
Closer to home, Marfa was prominent again in the New York Times with a
story by Whitney Joiner, “Hollywood Stampedes a Texas Town, and
Tranquility Rides into the Sunset.” The movie is a violent drama about
border life from a recent novel by the reclusive Cormac McCarthy. The
movie story includes roles played by Marfa banker W. E. Love and other
Marfa residents.
Our personal favorite news story last week was about the ethics hearing
in Austin of Texas Supreme Court Justice Nathan Hecht, on the court
since 1988. Justice Hecht is charged with alleged improprieties for his
promotion of the prospects of Harriet Miers for appointment to the U.S.
Supreme Court several months ago. His attorney Chip Babcock claims
Justice Hecht’s constitutional right to free speech in his defense.
These and other narratives prominent in our press come together
somewhere and give us the “meaning” of our times — but rest assured
that we will not be sermonizing thereupon today.
Indeed, it is unlikely that the great world will note last week’s truly
splendid news coverage of our scenic backdrop by the Big Bend Sentinel.
Major local stories were published concerning the city of Marfa “Quorum
bust …” The landfill issue, and a comprehensive series of news stories
covering the controversies at the Alpine-Marfa gas board.
Coverage of such local issues is the principal purpose of our local
newspapers. It is their duty alone because the news media providing
wall-to-wall coverage of 9/11 are not going to come here and sit
through a gas board meeting for any reason with the possible exception
of a simultaneous explosion of all the gas lines some day (we don’t
want to elaborate on that fantasy because we might then hear the knock
of the Homeland Security Thought Police at our door).
We, meaning the Big Bend, are a scenic country, an imposing vista, and
a mythic evocation of the western frontier. We are perfect for a
three-minute photo opportunity. But the history and political
tensions
at the gas board are unromantic stuff, the trench warfare of the news
beat.
All of which is context for an action decided on August 17. That was
the day three Texas judges in the Eighth Court of Appeals in El Paso —
Justices David Wellington Chew, Ann Crawford McClure, and Judge David
G. Guaderrama decided the case of "In Re K.E.L."
The appeals court justices have been considering the case since last
May. The issue is the “expunction,” that is, the removal, of the record
of the Brewster County grand jury indictment of Katie Elms-Lawrence for
the Class B misdemeanor offense of violating Section 551.144 of the
Texas Open Meetings Act (TOMA).
That is the section which prohibits local officials from meeting
secretly in numbers of a quorum and deciding issues outside a public
meeting.
Mrs. Elms was elected to the Alpine City Council in May 2003. She
fought hard to open up the city’s budget process and also to fix the
scandalous cover-up of preferential water distribution in this city.
This issue involves millions of dollars now, in the past, and in the
future. Getting, distributing, and selling water is the core function
of the city of Alpine. Her efforts — along with those of Avinash
Rangra, Anna Monclova, and Manuel Payne — were rewarded with the
indictment a few months before the 2005 election. Avinash Rangra, also
up for reelection, was also indicted.
The message was clear. Cross the Brewster County Courthouse Gang and
you will get indicted.
The story is known through the exclusive coverage by the Big Bend
Sentinel. Katie Elms retained Rod Ponton and Rangra retained Dick
DeGuerin. The indictment was dropped on the motion of 83rd District
Attorney Frank Brown. Rangra and Elms demanded a trial to clear their
names nevertheless, but were refused. Elms and Rangra moved for
“expunction” which was granted by their respective judges, 394th
District Judge Ken DeHart and visiting Judge Peter Peca of El Paso.
But DA Frank Brown appealed the expunction. This appears to be the only
appeal of an expunction in the history of Brewster County in the 83rd
District. As his representative Steve Houston said in May at the case
hearing in El Paso, the DA might want to reindict Elms or Rangra any
time before the statute of limitations expired in October 2006 — his
“prosecutorial discretion.”
On August 17 the Appeals Court refused DA Brown and upheld Elms’
expunction.
Rangra will have to refile due to a small technical error in his
submission, but it is the same case.
The El Paso Eighth Court of Appeals writes that “there was no probable
cause to support the indictment” at the time it was presented nor at
the time it was dismissed.
The news, covered only here at the scene, is that public officials
attempting to do their duty were indicted with “no probable cause” in
the unanimous opinions of five Texas judges.
Rumors in Alpine are that DA Brown will appeal to the Texas Supreme
Court, adding to the cost of this litigation. It is a cost which our
readers in Presidio, Jeff Davis and Pecos counties will share, of
course.
"In Re K.E.L." in the Texas courts is different entirely from that
being pursued in the federal courts by Avinash Rangra and Anna
Monclova. They are asking U.S. District Judge Robert Junell to declare
the TOMA unconstitutional because the Act limits and “chills” the free
speech rights of local officials. To prove their case they are suing DA
Brown and the Texas Attorney General. Judge Junell’s opinion is due
some time in September or later.
Katie Elms-Lawrence is no longer a member of the Alpine City Council.
She did not run for the Ward 3 position in 2005. She did run for mayor
in 2006 and received about 40% of the vote.
In small towns life goes on. The Alpine City Council is sliding back
into the old share-the-boodle style which Elms and her fellow grand
jury suspects for a time stymied.
If Texas Supreme Court Justice Nathan Hecht will vigorously defend his
First Amendment rights, can we do anything else? •
(Also
published by the Big Bend
Sentinel of Marfa, Texas August 31, 2006.)
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