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God, that title sounds boring, doesn't it? Well, this is for the legal wonks out there.  Most of you have probably heard by now that DeLay's lawyer, Dick DeGuerin, filed a motion arguing for dismissal of last week's indictment for conspiracy to violate the Texas Election Code because, allegedly, the crime of conspiracy wasn't made applicable to the Election Code until 2003 -- i.e., after the events alleged in the indictment (which took place in September 2002) -- and can't be applied retroactively to make that conduct criminal.  I thought I'd provide a little bit of the actual statutory law involved so you can understand why this argument is probably bogus (in addition, of course, to the fact that it is Tom DeLay making it).  

Some caveats before we get started.  First, I apologize if I'm repeating information here, but I looked for diaries on this and only found this one by FLS, which had some good discussion, but not much detail.  

Second, I'm a lawyer, but I'm not a Texas lawyer.  I'm just gleaning what I can from the relevant statutory history.  I also haven't looked at Texas case law to see if this issue has been discussed in the Texas courts.  I will add, however, that in the FLS diary above (and in the TPM link before the jump) there are quotes from some Texas law professors who reach the same conclusion I do. I'm just trying to give you folks a little more detail on why we reach that conclusion.  If any persons more knowledgeable than I on Texas law want to chime in and add or correct something I've said, please do so.

OK, let's go.  First thing you need to know is, Texas statutes are scattered among several "codes", each on a different topic.  There's an Agriculture Code, an Education Code, a Da Vinci -- no, not quite -- and many more, including my favorite, the Alcoholic Beverage Code.  You can find them all here.  The two relevant codes to the DeLay indictment are the Election Code and the Penal Code.  (Fans of Kentucky Fried Movie will remember a courtroom scene with a prosecutor holding up a dildo and asking the witness if he was "aware of the Penal Laws of this state!")

The indictment (the first indictment, of course), charges DeLay and his codefendants (John Colyandro and James Ellis) and an unindicted coconspirator, TRMPAC, with conspiring to "engage in conduct that would constitute the offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Texas Election Code, a violation of sections 253.003 and 253.094 and 253.104 of the Election Code...."

Now, although the object of the conspiracy was a violation of the Election Code, the crime of conspiracy itself is defined as a violation in Title 4 of the Penal Code:

(a)A person commits criminal conspiracy if, with intent that a felony be committed:
(1)he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense;and
(2)he or one or more of them performs an overt act in pursuance of the agreement.

Well, so far, so good: the indictment charges the defendants with an agreement to engage in conduct that would constitute "the offense" -- i.e., the "felony" that is intended to be committed.  The question is, is the violation of Subchapter D of Chapter 253 of the Election Code a "felony" as defined by the Penal Code?  Here's the definition, from Penal Code 1.07(a)(23):

"Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary.

Well, let's turn to the Election Code, then.  Is the violation of Subchapter D of Chapter 253 designated as a felony? Sure is.  Election Code 253.003 (referenced in the indictment) says:

(a)A person may not knowingly make a political contribution in violation of this chapter.
(e)A violation of Subsection (a) or (b) is a felony of the third degree if the contribution is made in violation of Subchapter D.

So, unless the term "offense" under the Penal Law is supposed to only mean offense defined in the Penal Law itself, it's pretty clear it applies.  And there is plenty of evidence that the Penal Law does not so limit itself.  To wit (as we lawyers say):  

  1.  The definition of "law" (remember, a "felony" is one so designated by "law") is "the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute." (Penal Code 1.07(a)(30).)

  2.  The Penal Code also says (mirroring the above definition of "law") that "Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute." (Penal Code 1.03(a).)

Now, here's the provision that comes closest to giving DeLay some comfort, Penal Code 1.03(b):

The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.

Notice, DeLay will say, that Title 4 -- which includes conspiracy -- is not mentioned. Aha! So doesn't this mean, he'll say, that by implication, anything other than Titles 1, 2, and 3 is therefore not applicable to "offenses defined by other laws" -- i.e., including those defined by the Election Code?  Now, this line of reasoning -- also known as expressio unius--can be valid.  But not so much here.  Titles 1, 2 and 3 lay out general principles -- definitions, principles of culpability, and punishment -- that apply to all offenses, while Titles 4 forward each define specific offenses.  So talking about Titles 1-3 as a group (and not including the other titles) makes logical sense, and any inference one could draw about the remaining titles from their absence is extremely weak.

Notice, also, that it doesn't say that Titles 4+ don't apply.  And notice also that it Section 1.03(b) clearly contemplates that an "offense" may be "defined outside this code."  Taken as a whole, then, I'd say the plain language of the Penal Code contemplates that a conspiracy to commit an offense defined outside the code is punishable, and far outweighs any weak contrary inference that can be drawn from 1.03(b).

Now, the foregoing all deals with the language that was in place prior to 2003 -- i.e., when DeLay committed his crime.  Sorry, "alleged" crime.  But in 2003 the Texas Legislature amended the Election Code to specifically state that Title 4 would apply to Election Code offenses:

In addition to Section 1.03, Penal Code, and to other titles of the Penal Code that may apply to this code, Title 4, Penal Code, applies to offenses prescribed by this code.

(This was added by HB 54; ch. 393 of the 2003 Acts.)  The effective date of this statute was 9/1/2003.  So clearly it does not apply to DeLay.  But as we've seen, one doesn't need it to find DeLay culpable.  The language of the pre-2003 statutes already made conspiracy to violate Subchapter D of Chapter 253 of the Election Code a crime.  So why did Texas add this?

Well, it's possible that, for the reasons we already stated, there was some doubt among the legislators in the 2003 Texas leg as to whether conspiracy applied to the Election Code as written.  It's even possible that they thought it clearly didn't apply.  But none of that is terribly important.  What's important is what the courts think the Penal Code said, and for that they will look to the language, and possibly to the legislative history when that language was passed, but what they really will not find terribly persuasive are the (implied) opinions of later legislatures.  

Given all of this, I certainly don't blame Ronnie Earle for adding the new indictment yesterday, just to be sure.  But I think his original indictment was on pretty solid ground.  He's a smart prosecutor, and he wouldn't have made as serious an error as DeLay and DeGuerin are claiming.

Originally posted to Glenn in NYC on Tue Oct 04, 2005 at 08:42 AM PDT.

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Comment Preferences

  •  Tip jar (4.00)
    If you're so inclined and so kind.  Comments, brickbats, flames all welcome too.
    •  Also isn't it normally true (none)
      that conspiracy to commit a felony is presumed to be covered by the statute forbidding the underlying Felony as well, even absent a conspiracy statute.  

      For example, a person who attempts a murder can be charged with attempted Murder, even if there is no seperate statutory crime by that name  because they were attempting to commit a felony.  

      In other words the Law is not required to let an evil act occur, just to be able to charge the person who acted with the intent to commit that act.  Similarly if the Conspiracy involved Overt acts to further a scheme that was intended to violate the law, can'the also be charged with a conspiracy count that is presumed to emanate from the underlying criminal statute?

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Tue Oct 04, 2005 at 09:05:46 AM PDT

      [ Parent ]

      •  I'm not sure about that. (none)
        Been a while since I took Crim Law, you could be right although most jurisdictions have created a conspiracy crime by statute now so I'm not sure such a common-law presumption (if it exists) is still valid.  Interesting question, though.
  •  I don't get it (none)
    So is he basically make public admission that he conspires to launder money?
  •  I heard DeLay talking about this... (none)
    He was laughing about how stupid the charge was, because it wasn't a crime at the time.  Does the man have any clue how arrogant that sounded?

    "Mr Pres, what's your opinion on Roe vs Wade?" "I don't care how they get out of New Orleans!"

    by Leggy Starlitz on Tue Oct 04, 2005 at 08:53:49 AM PDT

  •  texas case law (none)
    You're comments on this seem apt; I ran a search on Westlaw and wasn't able to find any Texas case law that were on point with the issues raised.  This may well be a case of first impression.
    •  Thanks... (none)
      I didn't have the Westlaw access I needed to run the search.  Given that you had a prof from UT saying that conspiracy applied to the Election Code pre-2003, I figured there must not be anything too on point or he surely would have known about it.
  •  What About The "Intent" Argument? (4.00)
    Congressman DeLay makes the corollary argument that you can't have criminal intent if you consult your lawyer first.  What do you make of this?
    •  the Most ridiculous thing i've ever heard (none)
      There are a whole lot of Mafia consigliere 's  who'd love to be able to make that argument on brhalf of their clients

      "your Honor, Joey Sixtoes here didn't have any criminal intent when he whacked Vinne The Lips, I mean after all, he consulted with me prior to the Hit...."

      People often consult with their lawyers not to find out how to avoid breaking the law, but to find out what their chances are of getting away with it and what the consequences are if they get caught.

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Tue Oct 04, 2005 at 09:14:05 AM PDT

      [ Parent ]

      •  Apparently, I Should Turn The Snark Sign On (none)
        On the one occasion when I was called by a U. S. Attorney, he asked if I had told my client it was OK to loot a pension plan.  I said that if I had any conversations with the client, I was required to raise attorney client privilege and needed a waiver from the client before I could discuss any conversations with a client.

        The more interesting question is whether by asserting that all decisions were made with legal advice, the attorney-client privilege effectively has been waived as to whether the client followed the advice given by the attorney.  

        •  oooooh VERY good (none)
          remind me to settle any case I have against you BEFORE trial....

          I'd say if that is merely a public statement the privilege wouldn't be waived as its too important to be so casually waived.  However if that were formally made part of the defense, or testified to at the grand jury, or told to investigators,  then it gets much more interesting.   And the of Course is the hoary old chestnut that ACP doesn't apply when the conversation is part of a conspiracy to commit a crime.   And given what Tommy is charged with.....

          Knowledge is power Power Corrupts Study Hard Be Evil

          by Magorn on Tue Oct 04, 2005 at 09:40:36 AM PDT

          [ Parent ]

    •  good question (none)
      I haven't seen Tom DeLay's comments about consulting a lawyer first, but I think that eafredel asks a good question.

      I agree with those who have pointed out that lots of criminals consult lawyers, so that they can get info that might help them break the law more efficiently.

      However, there are also plenty of people who go to lawyers because they are genuinely confused about how the law applies to them. Politicians often consult lawyers about campaign finance law.

      If someone seeks professional advice because he or she wants to comply with the law, but gets bad advice and ends up breaking the law instead--what then?

      Of course, the defendant should waive privilege so that the lawyer can tell the prosecutor that he/she did indeed give such-and-such advice to the client.

      Would a prosecutor normally be more lenient, or even dismiss the charges, if it appears that the defendant had, in good faith, relied on bad advice?

      Personally, I don't see this defense working for Tom DeLay, because it seems to me that he is someone who would have a very thorough understanding of campaign finance laws. Still,  the argument may resonate with people who have who have tussled with, say, the IRS.

  •  Great diary. (none)
    Bookmarked. Recommended. Tipped.  All that.

    Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty..." - Lincoln

    by Georgia Logothetis on Tue Oct 04, 2005 at 09:19:49 AM PDT

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