Who has the jurisdiction?
The Statesman takes a look at the question of jurisdiction over Tom DeLay, a question that I've ruminated about a few times.
State law generally prohibits spending corporate money on campaigns. But [Travis County DA Ronnie] Earle always has faced a high hurdle, due to the jurisdictional issues within state law, in trying to indict DeLay. He cannot just accuse him of accepting or giving corporate money as campaign donations as he did [Warren] Robold and [John] Colyandro.
The election code gives the authority to prosecute campaign-related crimes to local prosecutors where the defendant lives, not to Earle's Public Integrity Unit. Earle has jurisdiction only over suspects living in Travis County or outside Texas.
To make a case against DeLay, Travis County prosecutors would have to look outside the election code, to the criminal code.
They did that when the grand jury indicted Colyandro and [Jim] Ellis on charges of money laundering.
Colyandro, who directed Texans for a Republican Majority from Austin, and Ellis, who was DeLay's Washington-based eyes and ears for the Texas committee, are accused of exchanging $190,000 of corporate money for the same amount of money from individuals that could be legally given to Texas candidates.
The prosecution of the money-laundering case will be more complex and difficult than just pursuing charges of accepting or making illegal campaign donations. In essence, prosecutors will have to prove two points: that Colyandro and Ellis laundered money and that the cash was illegal corporate campaign donations.
Austin lawyer Bill White, a former prosecutor under Earle who represents DeLay, first raised the jurisdictional issue last summer as part of DeLay's efforts to convince the national media that he would not be indicted.
White acknowledges the jurisdictional issue is not a free pass for his client.
"There are a whole lot of possibilities out there having nothing to do with the election code," he said.
White said the money-laundering charges against Ellis and Colyandro are trumped up and DeLay was nowhere near the transactions.
"He doesn't play down at this level," White said. "He's way too busy a man. His fingers aren't really in every pie."
White insists that DeLay will never be indicted for anything he did in the 2002 elections.
"I know that Ronnie Earle, whom I've known for 25 years, if he had evidence against Tom DeLay, he'd indict him," White said. "And he hasn't."
Of course, Earle has not cleared DeLay, either. Earle, who declined to comment for this story, routinely refuses to speculate about where his investigation might end.
White does not question Earle's motives.
"I don't think it's a political prosecution," he said. "He believes in what he's doing."
But White also said Earle had to show some results after putting so much effort into investigating the Republicans.
"If you spend taxpayer money for two or three years, you have to indict somebody," he said. "You'd look like a fool if you didn't."
It's certainly possible that in the end, Ronnie Earle will not get any indictments against Tom DeLay. It's also possible that he'll find more than enough evidence to charge him with electoral code crimes. I have always believed that if Earle can't bring charges himself, he'll hand the evidence off to whoever can - in this case, the Fort Bend County DA - and if that person fails to act for whatever reason, he'll make what he's got public and let the chips fall where they may. If a consensus forms that Earle's evidence is more than sufficient to sustain the relevant charges against DeLay, then questions about partisan motives will be raised against the guy who isn't pursuing those charges. Is Fort Bend DA John Healey, Jr, up to that kind of pressure? Maybe we'll find out some day.
In the meantime, there's the cases against the DeLay Three, plus the civil lawsuits, whose discovery efforts have uncovered documents which may eventually lead to charges against Tom Craddick and maybe others, Abramoff and Scanlon and Reed, all the other insults to ethical behavior on DeLay's part that have come to light lately. Who knows, maybe indictments in Austin would be overkill.
Posted by Charles Kuffner on April 04, 2005 to Scandalized!
Tom DeLay, Go Home
posted by Sean Sirrine @ 4/4/2005 01:20:00 PM 0 comments
I think it is time for House Majority Leader Tom DeLay to go home and take care of his own community. There has been a lot of hype in the media following his statements following the death of Terri Schiavo. DeLay claims that the judiciary is responsible for the mishandling of the Schiavo case, and that these judges may need to be impeached.
I was directed to a story by RapNews.net, which I’m sure some of you have seen. Findlaw reports that the death of Sun Hudson came about two weeks before Terri Schiavo’s death, but where was the outcry from DeLay? This case seems to me to be every bit as important as the Schiavo case, and it even happened in Texas:
Sun Hudson had been diagnosed with a fatal genetic disorder called
thanatophoric dysplasia, a condition characterized by a tiny chest and lungs too
small to support life. He had been on a ventilator since birth.
Wanda Hudson unsuccessfully fought to continue her son's medical care. She
believed he needed time to grow and could eventually be weaned off the
"I wanted life for my son," Hudson said Tuesday. "The hospital gave up on
him too soon."
Texas law allows hospitals to end life support in cases such
as this but requires that families be given 10 days to find another facility to
care for the patient. No hospital was found to take the baby.
So, DeLay is up in arms about the decisions of some judges over in Florida, but back in Texas we see that it is okay to allow people to die based on the decision of the hospital. I thought this was all about a “culture of life”, not about who could afford the medical care.
Now, I obviously disagreed with Congress’s actions involving the Schiavo case, but I would expect that even those that disagree with me politically would have a hard time swallowing the garbage that DeLay is throwing around these days. At least in Florida someone that had no vested interest in the parties to the case made the decision. In Texas, a hospital that doesn’t want to provide care anymore can legally disconnect their patients regardless of the wishes of the patient.
I believe in the rights of the patient, or in the case of Sun Hudson, the rights of the mother to decide whether or not to cut life support. The Schiavo case came about because there was some argument as to who should be making the decision for Terri. There was no such question in the Hudson case, the hospital made the choice.
Why isn’t everyone more upset at this? Do you want the hospital that is providing your care to decide if you should live or die?
These laws can be found in Chapter 166 of the Texas Health and Safety Code. The particular issue at hand is found in § 166.001, also known as the Advance Directives Act, which was signed into law in 1999 by then Governor George W. Bush. Interestingly, at least three Montgomery County state and federal legislators believe the law deserves a second look according to The Courier, but where is DeLay?
§ 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A
DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of
the following categories, in the following priority, may make a treatment
decision that may include a decision to withhold or withdraw life-sustaining treatment:
(1) the patient's spouse;
(2) the patient's reasonably available adult children;
(3) the patient's parents; or
(4) the patient's nearest living relative.
(f) The fact that an adult qualified patient has not executed or issued a
directive does not create a presumption that the patient does not want a
treatment decision to be made to withhold or withdraw life-sustaining
treatment. (g) A person listed in Subsection (b) who wishes to challenge a
treatment decision made under this section must apply for temporary guardianship
under Section 875, Texas Probate Code. The court may waive applicable fees
in that proceeding.
So, we see that there are very similar issues in Texas as were found in Florida. The husband is the priority decision maker, but the parents could have tried to wrestle that decision away in the courts. Should the courts get involved? They have to, it’s the law. Also, I’d like to note that the law in Texas doesn’t presuppose that the patient wants to stay alive. Now, if I understand correctly, the argument that Congress made was that there should be a presumption of life. Texas explicitly denies this concept.
§ 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR TREATMENT
DECISION.(e) If the patient or the person responsible for the health care
decisions of the patient is requesting life-sustaining treatment that the
attending physician has decided and the review process has affirmed is
inappropriate treatment, the patient shall be given available life-sustaining
treatment pending transfer under Subsection (d). The patient is
responsible for any costs incurred in transferring the patient to another
facility. The physician and the health care facility are not obligated to
provide life-sustaining treatment after the 10th day after the written decision
required under Subsection (b) is provided to the patient or the person
responsible for the health care decisions of the patient unless ordered to do so
under Subsection (g). (g) At the request of the patient or the person
responsible for the health care decisions of the patient, the appropriate
district or county court shall extend the time period provided under Subsection
(e) only if the court finds, by a preponderance of the evidence, that there is a
reasonable expectation that a physician or health care facility that will honor
the patient's directive will be found if the time extension is
If the patient cannot find a place to be moved after the hospital decides to end life sustaining activities, the patient is unable to challenge the hospital’s decision. Maybe this it what DeLay wants though, at least you don’t have the judiciary making decisions on issues like what the patient might want.
§ 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE(b) The attending
physician does not have a duty to verify that the agent's directive is
consistent with the principal's wishes or religious or moral beliefs.
This is the most ominous portion of the code. Not only can the hospital make decisions for patients, if an agent of the patient decides against life, the hospital doesn’t even have to consider whether or not this was the wish of the patient. Here, we see that Texas code gives little value to patients’ rights. I think there are enough problems with the code in Texas that Tom DeLay could get involved if he truly cares about this issue.
So, Tom DeLay, please go home and fix your own problems. It is much easier to point the finger at someone else’s mistakes than fix your own, but we all know we’ll see you in the media shortly decrying this outrageous injustice.