Saturday, September 24, 2011

Allegation of jurisdiction – one for the books

Waco – The information wars proceed apace.

Consider the hassle over the replacement of the Jail Magistrate.

A public act of public officials, the information regarding that decision is easily obtainable to certain media such as the daily Waco newspaper. To social media reporters, the story is very different.

No Irish Need Apply, as it were.

As veteran Waco Tribune-Herald courthouse beat reporter Tommy Witherspoon often says, “I still have a job.”

The man is a total credit to his race. He has proven that by speaking harshly to The Legendary over being quoted in news accounts written by your humble correspondent in past decades. Shame of it all.

According to County Judge Jim Lewis' administrative assistant, information regarding the shakeup reached the desk of The Legendary because “the information you requested is not being provided with the understanding that it is subject to the Open Records Act, nor is it a formal opinion.

“It is being provided because Mr. Reyna has reviewed your open records request and indicated that he has no objection to your receiving a copy of the memo,” Ms. Lynne Lockwood wrote in response to an inquiry from Legendary reporter R.S. Gates.

She actually underlined her words. Imagine that.

As it turns, out Criminal District Attorney Abel Reyna had his Appellate Chief look into the matter of whether a public official can legally perform the duties of two offices of emolument simultaneously.

“In turn, the Appellate Chief sent Mr. Reyna a memo on the matter – which he shared with one of the District Judges – who apparently passed the memo along to everyone else.”

Everyone, that is, but The Legendary.

R.S. Gates and The Legendary Jim Parks had to make a formal request in writing. That way, we were sure to get the information many days past the news cycle, when it was no longer newsy news, salient fact, or even all that interesting to people who underline their words in memos to those who ask for public information.

There is a fine line between history and news, as a former administrative assistant to CIA Director Admiral Stansfield Turner was so fond of saying when he was an over-qualified public information officer to the Sheriff – the Lord High Sheriff – of Palm Beach County, Florida. That old boy was a licensed attorney in his own rite. Wore a fez. Had a ring – big old gaudy ring. Liked to get people fired. A power. A force. What a guy.

Yay-us! Palm Beach County. Oh, yes, that's the place where Dub-yah got elected President by a few hundred votes? Or was that the other courthouse, the one in D.C. You know, the Supreme Court. What were the results of that election? Five to Four? Ring a bell?

Emolument – the word just rolls off the tongue with a greasy inflection all its own – is the key to the dilemma presented by Judge Raymond Britten's serving as both a County Jail Magistrate and a municipal judge in three McLennan County jurisdictions – Moody, Bruceville-Eddy, and Riesel.

The three cities are noted speed traps located on arterial highways.

This rather unusual term – emolument - denotes the money paid to an officeholder who acts as an official who exercises “sovereign functions of the government largely independent of the control of others...” Aldine Ind. School Dist. v. Standley, 280 S.W. 2D 578, 583 (Tex. 1955)

According to case law, “Any payment or benefit incident to an office constitutes an emolument.” Willis v. Potts, 377 S.W. 2D 266 (Tex. 1964) Judges have held in numerous cases that “The position of Municipal Judge is an office of emolument.”

Judge Britten, who is not a licensed attorney, has in the past presided as a Justice of the Peace in a now defunct precinct. When the Commissioners' Court eliminated the precinct, they appointed him Jail Magistrate.

The position, which pays only $24,000 per year, involves charging alleged offenders and sometimes reviewing probable cause affidavits that support warrants of search or arrest.

Judge Britten has been especially active in the task of signing off on Personal Recognizance and Surety Bond releases of those unfortunate enough to have been accused of very serious and heinous felony offenses – offenses such as aggravated sexual assault of a child or felony DWI. These fortunate defendants had one thing common. They were not indicted during the 90 day period required by Texas law. The prosecutors declined prosecution, but let the charges stand.

The accused went free.

Of course, the releases were authorized by a District Judge, but Judge Britten, the $24,000 a year non-lawyer, signed the paperwork.

The job is performed through video conferencing. Judge Britten need never leave his office to inform a defendant of the charges lodged against him, or to sign off on legal process.

But there is a catch to which no one paid any attention over the period of 2009 until the present.

The Texas Constitution “prevents an individual from holding civil office of emolument at the same time,” according to Art. XVI, Sec. 40.

He will leave office as Jail Magistrate on January 1 in favor of the appointment of a licensed attorney following a recent act of the Legislature which requires that Jail Magistrates must be admitted to the bar and have privilege to practice law.

He could have been grandfathered and allowed to remain in office, but a committee of State District Judges with jurisdiction in McLennan County decided it would be best to replace him. He is of an age to retire.

The really interesting part of the non-opinion of Mr. Reyna and his Appellate Chief – one envisions a war bonnet and paint sported by a spear-chucking stone age aborigine – is that for the period of his – ah – emolument as a Jail Magistrate at $24,000 per annum, Judge Britten has been quituated from his multiple offices as a Municipal Judge within the confines of those Nutbush City Limits courts by the roadsides made out of rattlesnake hides.

Man, you could almost dance to that, hoss.

I'm on a roll.

What this means, no matter whether you have a card in your pocket that will allow you to file court papers, make promises or take money for legal representation, is that he effectively resigned his multiple positions as a Municipal Judge in the high speed world of misdemeanor adjudications at Moody on State Highway 317, Bruceville-Eddy on I-35, or Riesel on State Highway 6 on the day he accepted his new emolument as the Jail Magistrate.

Question: When offenders forfeited bond or entered pleas of guilt in those fair communities, to whom did they address their communications? According to the law, there was no one there – really. Certainly, there was no judge. He had resigned.

He was busy signing off on personal recognizance releases and bond forms when the pawn brokers and insurance cats went off all those players' bonds and the local gen d'armes had to rearrest them and haul their hides down to the hoosegow.

Such a deal. They call it life on the installment plan. Big money in the wind, many flags unfurled, etc.

I am thereby inspired.

Incidentally, according to cost-conscious Precinct 1 Commissioner Kelly Snell, each and every public information act request generated by Legendary Reporter R.S. Gates and The Legendary Jim Parks costs taxpayers an average of $50.

Oh, dear.

Mr. Snell is a noted efficiency expert.

- The Legendary

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