For the first time in a three-year drama, oral arguments related to charges against former Wise County Precinct 4 County Commissioner Terry Ross were heard in a court of law.
A final ruling is still 60 to 90 days away.
Ross’ attorney, David Fielding, and County Attorney James Stainton presented their cases to a panel of judges Tuesday morning in the Court of Appeals for the Second District of Texas.
With the exception of Ross’ family, there was no audience in the Fort Worth courtroom as Fielding appealed Ross’ removal from office before a panel of three judges – Chief Justice Terrie Livingston, Justice Sue Walker and Justice Lee Gabriel.
Ross was removed from office March 19 by a summary judgment issued by District Judge Roger Towery, settling a civil suit filed by retired Texas Ranger Lane Akin of Decatur in June of 2012.
Fielding argued that the removal was wrongful because it was done under a statute that says a county officer can be automatically removed if convicted of a misdemeanor involving official misconduct.
Fielding acknowledged that Ross was convicted of a misdemeanor; his client pleaded guilty to abuse of official capacity greater than $20 and less than $500, which is a Class B misdemeanor.
But he downplayed the action leading to the charge and argued that it didn’t include, by definition, official misconduct.
“He built a treehouse for his grandchildren and wanted to keep it a secret from them for a Christmas present,” he said. “County property … you could argue that he shouldn’t have done that, but he wasn’t thinking about violating rules or laws, he just wanted to get that built for his grandkids. He and his wife were going to build it together.”
He said the definition of abuse of official capacity doesn’t include “official misconduct,” which he said means intentional, unlawful behavior relating to official duties. He also argued that the words “official misconduct” were not used in the indictment.
Judge Gabriel questioned his point.
“… nevertheless, he judicially admitted acting intentionally or knowingly … correct?” she said. “And he judicially admitted that he misused government proerty.
“How is that not a violation of duties?” she asked.
Fielding argued that the prosecutor was also obligated to show willful or evil intent to prove official misconduct, and he said Ross was not guilty of that.
“Maybe he shouldn’t have used that county barn,” he said, “but if you grew up in a small county like I did, you know people use the county barn for all kinds of things … they build parade floats in them … but in this case he was doing it for his grandkids.
“When it was brought to his intention, he felt bad about it,” Fielding said. “He was not guilty of evil intent.”
Stainton argued that Ross did display official misconduct (intentional and unlawful behavior), pled guilty, and said it was related to his official duties because if he was not county commissioner, he wouldn’t have had access to county property, personnel and materials.
“Simply by virtue of saying, ‘This is not official misconduct’ – I don’t think that gets you out of it,” he said.
Stainton also said Ross shouldn’t have the opportunity to re-litigate the facts of the criminal case.
“You don’t get to come in and take two bites of the apple,” he said. “In this case, the appellant was sitting there on the day of trial with 100 people in the courtroom, ready to go to trial … He had the ability to litigate the facts at the time.
“Instead, he chose to waive his right to a jury, admit he was guilty and plead giulty. He’s litigated those and shouldn’t be allowed to re-litigate.”
One of the judges took issue with this point and reminded Stainton that the central question was whether or not this was, in fact, official misconduct.
The county attorney emphasized that official misconduct is a question for the judge, not a jury, as Ross is seeking. He said jury can only determine whether or not certain things are true – not whether something is official misconduct or whether something is wrong or right.
“Even if you got out to that point and say you’re going to have a jury like the appellant wants, all the facts have already been litigated,” he said. “There aren’t any questions of fact left. Those have been established at this point.”
In his rebuttal, Fielding again mentioned the facts of the case, insisting that Ross’ actions were not out of “evil intent.”
“He was charged with building a playhouse for his grandchildren on public property,” he said. “and I’m not even sure that is a violation of the law, but he did it. It is public property. Second, utilizing public employees … Some of the guys would come in at the end of the day … they’d help him chalk a line or hold a board while he nailed it, right at the end of the day when they didn’t have anything to do.”
He was interrupted by one of the judges who reminded him Ross has already admitted to these facts.
“Really the question is whether or not … the plea of true or guilty of the offense of official capacity constitutes official misconduct.”