In Austin, TX, District Attorney Ronnie Earle is warning that a narrow Texas appeals court majority is about to create two classes of felony crime through a ruling that would let Tom DeLay escape trial for conspiracy to violate the Texas Election Code.
If he can’t persuade them to reconsider, police and prosecutors would be powerless to bring conspiracy charges in a wide variety of felony crimes, perhaps including the next pair of Columbine-style killers who plot to bring their guns to a Texas school.
Four dissenting judges on the nine-member Court of Criminal Appeals agree that the court is about to make bad law and bad public policy in the course of throwing out a conspiracy charge against DeLay and two accused co-conspirators. Earle is trying, with a motion for rehearing filed Thursday, to persuade at least one more justice to reconsider.
At issue is whether the general crime of conspiracy to commit a felony applies to ALL felonies in Texas, or just to those felonies enumerated in the Texas Penal Code. Texas keeps multiple sets of lawbooks, listing some felonies in the general penal code, but many others in special codes that apply to specific areas of law and segments of society.
Earle and the dissenting minority say that, if the majority’s ruling stands, felonies in the special codes won’t be subject to conspiracy charges. Earle says that because the special codes apply mostly to financial and administrative felony behavior, "blue-collar criminals" can be charged with conspiracy but a special class of white-collar criminals would be free to plot all the felonies they want and could only be arrested after they have actually committed their crimes.
In his motion for rehearing of the majority ruling, Earle cites a variety of special-code felonies that would no longer be subject to conspiracy charges. Altering and destroying bank records, for example, is a felony in the state Finance Code but not in the general penal statues. Likewise, a conspiracy by chemical plant operators to cover up the dumping of pollutants into Texas waterways could escape prosecution because that’s a felony in the state Water Code.
With felonies scattered throughout a host of special codes, however, I don’t think the court’s majority can anticipate how the ruling might tie the hands of law enforcement in the future when the Law of Unintended Consequences weighs in to make a mockery of the short-term result of letting DeLay escape trial for conspiracy.
A simple Google search turns up the felony of "exhibiting, using, or threatening to exhibit or use a firearm" in a Texas school or on a school bus. It’s not a Penal Code offense, though - it’s part of the Texas Education Code. So does the majority intend that if Texas cops uncover an e-mail plot by the next Harris and Klebold to take their guns to school on Thursday, they have to sit on their hands until the Tec-9s come out from under the trenchcoats? Is letting Tom DeLay escape trial on one charge out of three worth imposing that kind of legal restriction?
Not surprisingly, DeLay’s attorney Dick DeGuerin is arguing in favor of special treatment for felonies that appear in special codes like the Election Code, telling an Associated Press reporter, "They are not inherently evil in themselves such as crimes against another person or theft or robbery or fraud."
Court of Criminal Appeals Justice Cathy Cochran, writing the dissent, already has scoffed at that argument as defying common sense.
Are some felonies more felonious than other felonies? More deserving of being deterred and punished before their actual commission? Or are felonies defined in the Penal Code especially heinous "felonies-on-steroids," while their brethren defined outside the Penal Code are puny, half-pint felonies unworthy of being the subject of the crime of conspiracy? I do not think so.
In addition to the Election Code conspiracy charge, two other charges - money laundering and conspiracy to launder money - remain against DeLay and are being argued in another appeals court, with no trial date set yet.
DeLay is accused of funneling $190,000 in illegal corporate contributions to Republican candidates for the Texas Legislature in 2002. After Republicans gained a majority, the Texas Legislature approved a GOP-friendly Congressional redistricting plan engineered by DeLay to increase his power in the US Congress.