The oft-delayed trial of suspended County Commissioner Terry Ross has been delayed again.
On Monday, District Attorney Greg Lowery made the difficult decision to recuse himself and his office from the case after being reminded that he represented Ross in a criminal matter 16 years ago.
The trial was scheduled to start with jury selection Tuesday morning. Now, it could be several more months before it goes to court.
District Judge Roger Towery will appoint a special prosecutor and reschedule the case for trial.
Lowery said if the discovery had been made earlier, he could have recused just himself and not the entire office.
“If you catch it early enough, you can do a ‘Chinese Wall’ which means you don’t discuss it. We wouldn’t discuss the case,” he said. “Since we didn’t discover this until three days before the trial, we had already done all that… It’s been discussed ad nauseum.”
Ross faces charges of tampering with governmental records, theft of $500 to $1,500 by a public servant, and abuse of official capacity greater than $20 and less than $500.
In preparation for the trial, Assistant District Attorney Tim Cole last Wednesday filed a notice of extraneous offenses and intention to introduce evidence of other crimes.
The notice detailed four instances in which Ross had brushes with the law. One of them occurred in February of 1997, when Ross was arrested for aggravated assault family violence with a deadly weapon.
The filing said Ross had been out drinking and when he returned home, he began yelling at his wife, Kelli. The notice said he threw her against a wall, choked her and spit in her face. Ross also brandished a gun in the assault, which prompted their daughter to call 911. But the notice concludes with the statement that “The charge was dismissed at the request of Mrs. Ross.”
On Friday, Ross’s attorney, Jerry Loftin of Fort Worth, filed a motion advising the court that Lowery had represented Ross in a previous criminal matter – the 1997 assault case.
Lowery told the Messenger Tuesday that he had no recollection of the matter.
“I don’t remember ever representing him,” he said. He added that although his office could have still tried the case, he didn’t want to risk a potential ethics violation that could affect his law license and membership in the State Bar of Texas.
Lowery said there is nothing on file in his office related to the incident.
“All our computer said is the case was rejected by the D.A.,” he said, which would indicate that then-District Attorney Jana Jones did not send it to the grand jury.
Loftin said he and his client are ready to resolve the case.
“We all look forward to getting the matter tried and over with and the district attorney … to his credit … there was a conflict and so there will have to be a new attorney appointed,” he said. “Until that time I don’t know much about what will go on until we can confer with that individual.”
The charges against Ross stem from an investigation that began in late 2011. He was indicted on two charges – tampering with government records and abuse of official capacity – in May 2012 and in August 2012 he was temporarily suspended without pay by Towery pending the outcome of his criminal trial. It was then scheduled to start Oct. 30, 2012.
About a week before the trial was to start, another charge – theft of $500 to $1,500 by a public servant – was filed against Ross. He was indicted on that charge in December, and the trial was delayed to Feb. 19. February rolled around, and the trial was delayed again, set for this week.
The three other extraneous offenses in the notice Cole filed last week include two from 2011 and one in 2012.
The notice says:
- In October of 2011, Ross allegedly “allowed or instructed a county employee to build a metal smoker from materials owned by the county.” The smoker was built with the intention of giving it to then Precinct 4 Foreman Roy Teague as a retirement gift, but after the county auditor’s office received an anonymous tip, the smoker was declared to be county property and put on the inventory for Precinct 4.
- Also in October of 2011, Ross allegedly “allowed Precinct 4 employees to construct a metal tank to hold diesel in the back of his personal vehicle, using metal and supplies belonging to Wise County.”
- In January of 2012, Ross allegedly “purchased with county money a welding hose set from Praxair Distribution Inc. in Bridgeport.” The notice says he signed documents saying the hose was for the use of his department, but “Ross took the item and kept it at an unknown location until it returned to Precinct 4 around Oct. 1, 2012.”