He’s excused this time. But don’t push it.
Gov. Rick Perry does not have to appear at an Oct. 13 court hearing in his case, but that does not mean he has a pass to skip all future hearings, Visiting Judge Bert Richardson ruled on Friday, according to the special prosecutor in the case.
This week, Perry’s legal team asked Richardson, a Republican, to excuse the governor from the Oct. 13 hearing and every other pretrial hearing. Perry faces felony charges of abuse of official power and coercion of a public official. In that same motion, the lawyers noted that the special prosecutor in the case, lawyer Mike McCrum, had requested that the governor be present in every pretrial hearing. McCrum had responded that there’s nothing in the criminal code that allows a defendant to be excused from every hearing.
On Friday, Richardson notified lawyers in the case that he granted the Perry team’s request that the governor skip the Oct. 13 hearing because it is a status conference or a check-in by both parties. But the judge denied the request that the governor does not have to make any future appearances at pre-trial hearings.
See here for the background. This seems like a reasonable ruling to me, but we’ll see what it becomes in practice. I’m sure at some point Judge Richardson will have to set some guidelines.
In the meantime, this case takes yet another strange turn.
In a criminal complaint sent Monday to the Travis County district attorney’s office, Houston criminal defense attorney David Rushing says special prosecutor Michael McCrum is abusing his official capacity by billing the county $300 per hour, or more than three times the highest possible rate set by a state law.
Travis County’s guidelines for the law, however, make it possible for an attorney in McCrum’s situation to earn less or more per hour if the circumstances are unusual. Perry, who has characterized the case against him as politically motivated, is the first Texas governor to be indicted in nearly a century.
“These attempts of character assassinations against our great governor here is bad enough on its own, but when you really analyze it, it’s not just a political game but lining the defense’s pockets at the taxpayers’ expense,” Rushing told the Chronicle.
The district attorney’s office confirmed it received the complaint but declined to comment further. McCrum did not respond to a request for comment Thursday evening.
Rushing’s argument is based on the Texas Code of Criminal Procedure and Travis County’s guidelines for the Fair Defense Act, a state law dealing with the right to counsel. The guidelines say appointed attorneys should be paid an hourly rate of $70 to $100 for time spent in court and $60 to $90 for time spent out of court. The guidelines also say an appointed attorney can be paid less or more in an “unusual case.”
Acknowledging some may see the complaint as a political ploy, Rushing said he has not been involved in Texas politics for nearly a decade. He served until 2005 as the chairman of the Young Conservatives of Texas, a group of college students that has backed Perry for governor and had him speak at its annual convention.
If the name “David Rushing” sounds familiar to you, this would be why. I’m delighted to know that some things never do change. As for his complaint, I’m not a lawyer, but it seems to me that McCrum’s hourly rate and the invoices he submits will have to be approved by Travis County Commissioners Court, one of whose members is a Republican, and you’d think they might have noticed if McCrum’s fees were illegally high. (Who had his own role to play in this ongoing saga, not that it matters now.) My guess is that the main effect of this complaint will be the need to appoint another special prosecutor, since I’m sure the Travis County DA won’t want any part of this investigation, either. I doubt it gets any farther than that, but who knows? I’m sure we have not seen the last surprise this story has for us.
And then if that wasn’t enough, this happened late Friday.
An Austin lawyer with Democratic ties has sued Gov. Rick Perry and Comptroller Susan Combs, arguing that the Republican leaders had no authority to spend taxpayer money on criminal defense attorneys for the governor, who is fighting an abuse-of-office indictment.
Larry Sauer, an Austin defense attorney who specializes in drug cases, is asking a state district court in Austin to declare the expenditures unlawful and to slap an injunction on the governor’s and comptroller’s offices to prevent future spending on outside criminal lawyers for Perry.
“State law is clear that public officials cannot use taxpayer or other state funds to defend a criminal charge, unless and until the official has been found not guilty,” the lawsuit said. It was filed Thursday and issued a docket number Friday afternoon, an attorney for the plaintiff said.
The lawsuit is being waged by attorneys with deep Democratic connections. Sauer has made numerous contributions to Democrats, according to state ethics records. He also gave $300 to Travis County District Attorney Rosemary Lehmberg, according to a 2008 story in the Austin American-Statesman.
When it comes to paying the legal bills incurred in connection with the grand jury investigation, Perry has never wavered from his argument that he has the right to use taxpayer money to pay for criminal defense lawyers.
After his aides said last month that Perry would pay for the attorneys out of his flush state campaign account, the governor said during a stop in Midland that he decided to use political funds only because people complained about it.
“I look at this as an appropriate defense of a state official,” Perry told reporters, according to news reports. “But just to keep from having folks grouse about it, we’ll pick up the cost as we go forward.” That statement is a central feature of the lawsuit.
Because Perry has asserted a right to tap taxpayer money for the legal bills, the lawsuit says taxpayers have no way to stop it from happening again.
“Governor Perry claims the right to pay criminal defense attorneys fees and expenses out of taxpayer funds at his whim, and Defendant Combs claims she must pay such expenses if Perry makes such a request,” the lawsuit alleges. “This leaves the taxpayer without the ability to prevent them, without judicial review.”
No doubt there are partisan motives here as well, but at least the legal question is more interesting. State Rep. Joe Deshotel requested an AG opinion about what the limits and requirements are for an indicted Governor billing the state for his or her legal fees. According to the Trib story, then-AG John Cornyn opined in 2000 that public servants who bill the government for criminal defense lawyers must be declared innocent first. So whatever the motivation, it seems fair to say that the issue here is not settled. Any thoughts on how this one might play out?