Austin, January 20 – The payments totaling more than $100,000 of County Judge Craig Doyal, Commissioner Charlie Riley, and Commissioner Jim Clark to their criminal defense attorneys are legal but ethically questionable. Doyal, Riley, and Clark filed their statutorily-required semiannual campaign finance reports with County Elections Administrator Suzie Harvey, sister of County Auditor Phyllis Martin, to meet the January 17 deadline.
Doyal paid renowned criminal defense attorney Rusty Hardin $89,430.79 on December 30, 2016, for legal services out of campaign contributions. On July 6, 2016, he also paid Conroe criminal defense lawyer John Choate $9,167.50, out of campaign contributions.
Riley’s campaign filing showed that he paid his defense lawyer, Conroe’s Doug Atkinson, $20,000 out of campaign contributions between September 25 and November 2. Riley is having another fundraiser on February 16 at 5:30 p.m. at Magnolia High School.
East Montgomery County’s Clark revealed that he utilized campaign funds to pay Conroe defense attorney Tay Bond $10,000 on September 16. Clark is planning a fundraiser for March.
Doyal, Riley, and Clark are under indictment for allegedly conspiring to violate the Texas Open Meetings Act related to their efforts to put the November 2015 road bond referendum on the ballot. Former Woodlands Township Chairman Bruce Tough and other county leaders have sharply criticized the claimed procedural irregularities in the manner in which the Commissioners Court approved the November 2015 referendum after a May 2015 road bond referendum had failed. The three indicted Commissioners Court members face charges of “official misconduct” if a jury and judge find them guilty in the criminal trial set to begin on March 27 in Conroe before Visiting District Judge Randy Clapp of Wharton County.
The Texas Ethics Commission’s Advisory Opinion Number 310, issued March 22, 1996, held that an officeholder may use political contributions for legal expenses in defending a public corruption allegation. Although Section 235.035 of the Texas Election Code prohibits an officeholder or candidate from converting political contributions into personal use, the phrase “personal use” specifically excludes “defending a criminal action…brought…against the person in his status as a candidate or officeholder.” Therefore, the actions of Doyal, Riley, and Clark in using political contributions for their legal defense is legal under the Texas Election Code.
But is it ethical?
The propriety of using political contributions for an officeholder’s legal defense for public corruption charges, as discussed in the Texas Ethics Commission Opinion, would seem to turn on the purpose of the contributor’s actions rather than the candidate or officeholder who receives the contribution. If a contributor seeks to buy influence with the candidate – a purpose which faces severe ethical questions – then the officeholder’s use of those funds for a legal defense would not seem to be inconsistent with the ethical purpose of the political contribution. For example, if hypothetical engineer Billy Jack Eastwood contributed $2,500 to hypothetical County Commissioner Jacky Charles Cooper, and Cooper had to defend himself against criminal official misconduct charges, the purpose of the contribution would seem entirely consistent with Cooper’s use of the funds. This analysis does not address the propriety of Eastwood’s conduct or of Cooper’s willingness to accept the contributions under those circumstances. Nevertheless, those who buy influence would seem less likely to care what the officeholder actually did with the money.
On the other hand, if a private citizen chose to make a political contribution because she supported the ideas, virtues, and principles with respect to public matters that a candidate or officeholder espoused during political discourse, the use of such funds to defend the candidate or officeholder against criminal charges of official misconduct would certainly seem to violate the integrity of the political contribution from its inception.
The bottom line? Unless contributors wish to acknowledge that they seek to buy officeholder’s influence with money, the use of political contributions to defend criminal charges is both unsavory and unethical. Right is right. Wrong is wrong. Never the twain shall meet.