BREAKING NEWS: DA Ligon decides not to pursue criminal charges against Doyal over “Video-Gate”

BREAKING NEWS! EXCITING TIMES FOR THE FORCES OF CORRUPTION, THANKS TO COUNTY JUDGE CRAIG DOYAL’S WORK!!! FIRST, HE GETS THE TEXAS OPEN MEETINGS ACT DECLARED UNCONSTITUTIONAL, SO SECRECY MAY REIGN IN COUNTY GOVERNMENT. SECOND, IT’S NOW A “FREE-FOR-ALL” AS FAR AS USING PUBLIC FACILITIES FOR POLITICAL CAMPAIGNS!

Left to right: campaign filmer Nathan Arrazate and Craig Doyal during a 2016 film shoot inside of Doyal’s County Office.

Conroe, June 9 – District Attorney Brett Ligon and the Public Integrity Division of the District Attorney’s Office announced today that they would not pursue criminal charges against Montgomery County Judge Craig Doyal arising out of the “Video-Gate” scandal. Ligon told The Golden Hammer, “Rusty Hardin [Doyal’s criminal defense attorney] and I went back and forth about these issues. I ultimately decided that the law didn’t support bringing criminal charges against Doyal.”

Section 255.003 of the Texas Election Code establishes a Class A misdemeanor, punishable by up to 1 year in jail, for any officer or employee of a political subdivision who knowingly spends or authorizes the use of public funds for political advertising. The statute explicitly contemplates that the Texas Ethics Commission may render written opinions regarding conduct regulated under the Section.

In Texas Ethics Commission Advisory Opinion Number 443, the Texas Ethics Commission clarified that Section 255.003 specifically prohibits the use of facilities not open to the public for political advertising of the sort which Doyal filmed for the video. Doyal’s office is not a public forum open to everyone, so it is clear that he violated the criminal statute by using his office for the advertisement.

In Ethics Opinion 443, the Commission discussed the use of a teachers’ lounge in a school for the filming of a political advertisement and determined that such use of the lounge was prohibited and a violation of the penal law. Several Ethics Commission opinions have later supported the conclusion of Opinion 443 that political advertising in a non-public forum, such as a private office, within a public facility is clearly a violation of the Texas Election Code.

The press release of Ligon and Special Crimes Bureau Chief Tyler Dunman, which the District Attorney’s Office released this morning follows:

“An investigation by the Montgomery County Sheriff’s Department and the Montgomery County District Attorney’s Office has revealed no criminal conduct by Montgomery County Judge Craig Doyal for having filmed campaign spots in his office. The allegations of criminal conduct were raised by local attorney Eric Yollick and were posted on his webpage, The Golden Hammer, on May 21, 2017. The investigation revealed that the videos were taken in the office of Montgomery County Judge Craig Doyal on or about May 20, 2017, and were subsequently posted on the Facebook accounts of Montgomery County Life Style and Conroe City Limits, both hosted by Mr. Nathan Arrazate.

“The focus of the Sheriff’s Department inquiry was to determine if any additional facts were present other than those readily apparent from the video. Their review discovered no additional facts and we feel confident in their results. Although it would have been very easy for the Legislature to prohibit all political activities upon the premises of government facilities, it has not done so. Instead, it has specifically prohibited the expenditure of “public funds” for political advertising (Section 255.003 of the Election Code) and the use of an internal mail system to distribute political advertising (Section 255.0031 of the Election Code). Furthermore, the Legislature has generally prohibited the misuse of governmental property contrary to a statute, an agreement or a contract, or the limited purpose for which the property was delivered or received (Section 39.02 of the Penal Code). None of those statutes apply to merely using Montgomery County office space to record a political advertisement without using county recording equipment, working on county time, or depleting any county resource.

“This investigation did not focus on or make any recommendations regarding whether or not the filming of these spots violates Montgomery County’s newly enacted Ethics Code of Conduct. That question is not within the purview of the Montgomery County District Attorney’s office, whose sole role is to determine the applicability of criminal statutes. Those allegations are more properly reviewed by Montgomery County’s Ethics Review Committee, the Texas Ethics Commission, and the State Commission on Judicial Conduct as those bodies review administrative or civil violations of conduct.

“This investigation is hereby closed.”

 

The Texas Ethics Commission issued its Ethics Advisory Opinion Number 443 on May 10, 2002, in which it determined that merely placing campaign literature inside of a teachers’ lounge in a public school was a violation of Section 255.003 of the Texas Election Code. The question before the Ethics Commission was whether use of the teachers’ lounge in that manner specifically involved an “expenditure of public funds” for a political campaign or advertisement. The Ethics Commission stated that it was a violation.

The entire Ethics Advisory Opinion Number 443 of the Texas Ethics Commission follows:

“The Texas Ethics Commission has been asked about the application of section 255.003 of the Election Code to a situation in which a school district allows any candidate for election to the school district’s board of trustees to have campaign flyers placed in a teachers’ lounge that is not accessible to the public.

“Section 255.003 of the Election Code prohibits an officer or employee of a political subdivision such as a school district from spending or authorizing the spending of public funds for political advertising.  The question presented raises two separate issues:  whether the situation described involves the “spending” of public funds and, if so, whether the public funds would be spent “for” political advertising.

“In a 1992 advisory opinion, we concluded that the “spending” of public funds included the use of school district employees’ work time as well as the use of existing school district equipment.  Ethics Advisory Opinion No. 45 (1992).  Because the situation described in the request letter involves the placement of campaign flyers in an area of a school restricted to school employees, the placement presumably requires school district employees to transport the flyers to the restricted area on work time.  Furthermore, in our opinion, for purposes of section 255.003, the “spending” of public funds includes the use of facilities maintained by a political subdivision.  Therefore, the placement of campaign flyers in a teachers’ lounge would involve the “spending” of public funds for purposes of section 255.003 of the Election Code.

“The remaining question is whether, in the situation described in the request letter, public funds would be spent “for” political advertising.  Individual campaign flyers are, in most circumstances, political advertising.  See Elec. Code § 251.001(16) (defining “political advertising”).  The use of school district resources to disseminate political advertising is a use “for” political advertising.  The requestor argues, however, that the restriction in section 255.003 should not apply in a case in which any candidate has the same opportunity to make use of school district resources for the dissemination of political advertising.1  That interpretation assumes that the only purpose of section 255.003 is to prevent a political subdivision from favoring one candidate or one political point of view over another.  It is likely that prevention of such favoritism was at least one purpose of section 255.003.  The broad language of section 255.003, however, applies to any use of a political subdivision’s resources for political advertising, and there is no language to suggest that a political subdivision may use public resources for political advertising if the political subdivision itself does not show a preference for political advertising from a particular source.

“We note that this opinion is not intended to address the use of the facilities of a political subdivision in a situation in which the facilities function as a “public forum.”  See generally International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (cases discussing permissible restrictions on use of public forum).  Whether a particular area of a school or other public facility is a public forum is a fact question, but in this case it is clear from the request letter that the teachers’ lounge in question is not a public forum.

“SUMMARY

“For purposes of section 255.003, the “spending” of public funds includes the use of facilities maintained by a political subdivision.

“The prohibition in section 255.003 of the Election Code applies to any use of a political subdivision’s resources for political advertising.

“This opinion does not apply to the use of the facilities of a political subdivision in a situation in which the facilities function as a public forum.

 

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