Attorneys for Williamson County District Attorney Jana Duty have filed a motion to have the Removal Case against her dismissed.
Duty’s attorneys argue that the case is not valid because Williamson County Attorney Dee Hobbs has not officially joined the action.
Tuesday Judge John Dietz delayed a hearing on whether or not to certify a complaint against Duty which was filed in June by a citizens group.
The Judge wanted to wait until July 26th to see if Hobbs would join the complaint and become lead prosecutor in the Removal case. In a statement released Tuesday by Hobbs stated he believed the proceeding could move forward without his involvement, at this stage, and was seeking clarification from a state appeals court on the matter.
Along with the status of the County Attorney, Duty’s Motion for Dismissal also listed other several reasons why the case should be thrown out. The points made are as follows:
“The foregoing allegations fail to state grounds for removal for the following reasons:
a. Ms. Duty did not withhold any evidence from the defense in State v. Harmel.
b. To the extent that the failure to disclose the method of accessing the time stamp information constitutes withholding of evidence, such evidence was inculpatory for which there is no obligation to disclose.
c. The gag order issued by Judge Kennon was on its face an unconstitutional prior restraint of free speech.
d. Sending an assistant district attorney to a hearing and writing an arguably disrespectful email is, at most, an error in judgment.
e. Ms. Duty’s contempt conviction was not by a petit jury, which is a statutory requirement for removal for a conviction for official misconduct.
f. The correction of previous erroneous testimony is not official misconduct.
g. Ms. Duty is not vicariously liable for actions of subordinates.
h. Removal for events that occurred prior to her election as district attorney is statutorily prohibited.
i. An allegation on information and belief is insufficient to provide statutorily required sworn grounds for a petition for removal.”
Duty’s attorneys also summarized the complaints against her by stating;
“The actions of Ms. Duty, at worst, reflect an error in judgment in dealing with opposing counsel and responding to the court in that case. Nothing in the petition alleges any actual harm to the people as a whole or any need to remove Ms. Duty to guard the public welfare. Accordingly, the Court should deny the application for issuance of citation and dismiss this case.”
In an e mail to FOX 7 Duty denied she was cited by the State Bar of Texas for withholding evidence in a murder case. That accusation is one reason why the citizen’s group called for her removal.
Legal disputes in the murder case resulted in a confrontation with the presiding District Court Judge who charged Duty with Contempt of Court. She was Booked into the Williamson County Jail in April.
The action by the State Bar occurred in June and involved placing Duty on Probation for violating several rules of Professional Conduct. The rules identified in the judgment are following;
1 June, 2016 State Bar Disciplinary Panel Findings / Jana Duty
Rules Violations: Texas Disciplinary Rules of Professional Misconduct.
4.01 Truthfulness in Statements to Others: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person;
3.04 Fairness in Adjudicatory Proceedings: A lawyer shall not: (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience.
8.02 Judicial and Legal Officials: (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.
8.04 Misconduct: (a) A lawyer shall not: (4) engage in conduct constituting obstruction of justice;
Embattled Williamson Co DA Jana Duty is keeping her job; at least for now. The legal process to remove her from office has been put on hold.
The Tuesday morning hearing before Judge John Dietz came to a quick end with this statement.
"I believe that the safer course is to abate this proceeding until the County Attorney of Williamson Co joins this suit," said Judge Dietz.
The decision gives County Attorney Dee Hobbs one week to decide if he will take the lead in the process to remove from office Williamson County District attorney Jana Duty.
"We would have liked to have the hearing proceed, today but we are ready to go next Tuesday. The County Attorney has told us, unequivocally, that his office intends to go forward and to join the prosecution, and to proceed with the removal," said Plaintiffs attorney Brian Bishop.
District Attorney Duty was not among those in court to hear the judge put the case on hold. For her attorneys' the decision was not a surprise, and the no show by Duty was no big deal.
"We weren’t asked to bring anybody, it was just argument of counsel, so there wasn’t any need for her," said Defense attorney Dan Richards.
The effort to remove Jana Duty from office was launched last month by a group of county officials and local business leaders. At that time Duty had been sanctioned by the State Bar Association for withholding evidence in a high profile murder case. The DA also spent time in jail on a Contempt of Court charge.
From the steps of the old courthouse in Georgetown, June 8th, the group claimed duty was unfit- and incompetent. The leader, Jim Schwertner called on duty to step down by sunset that Friday. The deadline came and went unanswered. When he left court- Tuesday, Schwertner said he wasn't surprised by the delay.
Regardless of any court action, Duty's time in office is running out - she lost her recent reelection bid. Attorney Brian Bishop explained why the group does not want to wait for January when the new D.A. takes over.
"Because there is no guarantee she will not continue to do more damage like she has. There is a short fuse on restoring the integrity and the reliability of the District Attorney's Office after the wounds of the Michael Morton Case; the voters shouldn't have to wait another four or five months to start that rebuilding process."
Before any political make over can begin the judge will first have to decide if the complaint against duty has any legal standing.
Late Tuesday, County Attorney Dee Hobbs issued a statement that he disagreed with the Judge’s decision to put the case on hold. According to Hobbs, the process should start with a Citation from the Judge and then action by the County Attorney. Hobbs is seeking clarification on the matter from the Texas Third court of Appeals.
Williamson County Attorney Dee Hobbs released the following statement:
As the elected County Attorney for Williamson County, I am charged with the responsibility and took an oath to uphold and follow the law. Texas Local Government Code Section 87.016 states that action may not be taken on the petition for removal until citation is issued. The decision on whether to issue citation rests solely with the Court. I believe the motions filed by Mrs. duty's attorney and the hearing set by the Honorable Judge Dietz violate the law in so far as action is being taken prior to the Judge's decision to issue citation in this case. The law further mandates that the Court shall decide whether citation shall issue based solely on the contents of the Original Petition for Removal. To allow motions to be filed and to hold hearings prior to deciding whether a suit to remove an elected official shall proceed, serves to create a chilling effect on any person who otherwise has cause and believes an elected official should be removed from office. Consequently, the County Attorney's Office disagrees with Judge Dietz ruling in Court today to abate the proceedings. As such the County Attorney's Office is seeking redress from the Third Court of Appeals on this point of law and is requesting the Third Court to issue an opinion as to whether the Judge Can Take any action prior to his decision, based solely on the contents of the Original Petition, to issue citation.
Although the County Attorney's Office will not treat the Jana Duty matter differently from any other case, the law regarding a petition to remove an elected official has conditions precedent that must take place prior to the County Attorney's Office getting involved. The Williamson County Attorney's Office stands ready to fulfill its legal obligations pursuant to Chapter 87 of the Texas Local Government Code.