The 3dr Court of Appeals in Austin has upheld the dismissal of the conspiracy charge against soon-to-be-former Congressman Tom DeLay.
The Sugar Land Republican, who has announced he plans to retire from Congress, still faces money-laundering charges. But the appellate court said Judge Pat Priest was correct to dismiss an indictment accusing DeLay and two associates of conspiring to violate the state election laws.
Priest ruled last year that the state's conspiracy statute did not apply to the election code until Sept. 1, 2005 - long after DeLay was accused of laundering corporate money into political donations for the 2002 legislative elections.
There was no immediate reaction to today's decision, but prosecutors have the right to appeal to the Texas Court of Criminal Appeals.
DeLay's lawyer Dick DeGuerin said he expected prosecutors would appeal: "I wouldn't be surprised if Ronnie Earle (Travis County district attorney) didn't continue to drag this thing out."
One could argue, in fact, that Earle's continued pursuit of DeLay after his resignation announcement, including another round of appeals in this matter, is more evidence that Earle is not motivated by politics in this case. If all Earle wanted was to drive DeLay out of Congress, he's accomplished that goal. He has no further need to go after a conviction he's less likely to get than the ones he ought to get against the TRMPAC Three. Given DeLay's new lame-duck status, I'd say that if Earle dropped the charges against DeLay now, that would be proof of partisan witch hunting. Doggedness in the face of no further political gain would seem to me to be the refutation of that allegation.
UPDATE: Interesting tidbit here in the written opinion:
Were we writing on a clean slate, the State's argument would carry considerable weight because Texas has had a generally applicable conspiracy offense since the nineteenth century. However, we are bound by controlling precedent that limits the applicability of the penal code's conspiracy provision to offenses found within the penal code.