One year ago Wednesday, fifty Democratic state legislators caused a political earthquake by breaking quorum in an attempt to derail a redistricting bill that had suddenly been fast-tracked. One day after the anniversary of that event, an appellate court has ruled that the issue of whether the Department of Public Safety illegally destroyed records pertaining to their search for those legislators is still an open question which must be decided by a lower court.
Also up for review is whether the Department of Public Safety has the power to arrest members of the Texas Legislature who defy their leaders and break a quorum, as the "Killer Ds" did a year ago.
The decision stems from a lawsuit filed last year by state Rep. Lon Burnam of Fort Worth, one of the Democrats who went to Ardmore, Okla., last May. Burnam sued after the DPS disclosed that it had destroyed records gathered during its attempts to arrest the Democrats at the direction of state Republican leaders.
The appeals court said DPS' assertion that it had not improperly destroyed records was "self-serving and remains an open fact question." That sends the issue back to the trial court, which had ruled that part of the lawsuit moot on the grounds that the destruction had ceased after judicial remedies were sought.
"The big point we're trying to make is the government can't destroy records and get away with it," said Catherine Mauzy, Burnam's attorney. "Just because you don't like what's in government documents doesn't mean the department can destroy them."
The seeds of the controversy were planted soon after the Democrats boycotted the House and temporarily prevented action on a congressional redistricting plan. The new Republican-friendly map has since become law.
Hours after Republican leaders decided to call off the search for the Democrats -- a search that involved some 300 troopers and Texas Rangers -- top DPS officials ordered subordinates to destroy records.
A DPS e-mail obtained by the Star-Telegram last year, addressed to "Captains," said: "Any notes, correspondence, photos, etc. that were obtained pursuant to the absconded House of Representative members shall be destroyed immediately. No copies are to be kept ..."
Burnam, who filed a request for DPS records under open government laws, later went to court seeking an injunction against further document destruction, which the department denied it was doing.
Destroying records subject to such a request or tampering with the availability of government records is a crime.
A Travis County grand jury that met to consider whether the DPS broke the law by destroying the records decided not to issue any indictments last year.
The only real civil remedy the trial court could issue at this point -- besides telling DPS it erred -- would be awarding legal fees to Burnam, Mauzy said.
In another ruling, the appeals court said the lower court erred on procedural grounds when it ruled that the DPS did not have the power to arrest the wayward lawmakers, as Burnam argued. That issue, too, was sent back to the lower court for review.