Posted on 15 March 2014.
Suspended Wise County Commissioner Terry Ross next week will be either permanently removed from office or granted a jury trial.
District Judge Roger Towery is scheduled to rule March 19 on Wise County Attorney James Stainton’s Nov. 21, 2013, request for a summary judgment in the civil suit regarding Ross’ removal.
FIGHTING FOR HIS OFFICE – Terry Ross listens intently to one of his lawyers after signing a plea agreement and pleading guilty Sept. 23 to abuse of official capacity, a misdemeanor. Next week District Judge Roger Towery will decide either to permanently remove Ross from office or grant him a jury trial in the civil suit regarding his removal. Messenger photo by Jimmy Alford
The original petition for removal was filed by retired Texas Ranger Lane Akin in the 271st District Court in June 2012, after Ross was indicted for tampering with government records and abuse of official capacity. In the months following the original petition, Ross was also indicted for theft of $500 to $1,500. All of these charges were tied to the construction of a playhouse for his grandchildren in the Precinct 4 barn.
Towery temporarily suspended Ross without pay in August 2012. Following several delays in the criminal proceedings, the commissioner eventually pleaded guilty Sept. 23, 2013, to abuse of official capacity, a misdemeanor. The other two charges, both felonies, were dismissed as part of the plea agreement.
He was also required to make restitution of $500 and sentenced to 180 days in jail, probated for one year.
If Towery grants Ross a jury trial and the jury were to reinstate the commissioner, the county would be required to pay Ross for the time he was suspended. As of March 15, it totals $146,453.12.
If Towery removes Ross from office, it would be for the duration of his current term, which ends Dec. 31, 2014. It doesn’t prohibit him from running again.
In fact, Ross did seek re-election in the March 4 Republican primary but finished third in a three-man race. Ross received 19 percent of the votes, compared to David Stewart’s 21 percent and Gaylord Kennedy’s 59 percent.
Just seven days before the primary election, Ross’ attorney David Fielding filed a response to Stainton’s request for a summary judgment and in an affidavit outlined Ross’ version of the events in the playhouse saga.
In this part of the document, Ross is described as a “loving grandfather,” who wanted only to surprise his grandchildren with a playhouse for Christmas.
He decided to build it in the county barn because the grandchildren live in a home behind him and his wife, Kelly, and this was the only way to keep it a secret from them.
The affidavit says that in December of 2011, Terry and Kelly “went to a couple of stores and bought lumber, plywood, bolts, nuts, wood screws and other items to use in building the tree house …” On the weekend of Dec. 10 and 11, it says they started construction.
“When the county employees who work out of the barn came to work Monday morning, Dec. 12, the structure was already taking shape,” it says. “Ross did not ask any of the employees to work on the tree house, believing that they should handle the county’s business, rather than handling his personal business.”
The affidavit goes on to explain that one employee, Jeffrey Shaw, had been drug-tested and Ross didn’t think he could be allowed to drive heavy equipment until the issue was resolved, so Shaw remained in the barn Dec. 12-14.
According to the affidavit, Ross says he went to Fort Worth on the 12th and doesn’t know what Shaw did that day but doesn’t believe any work was done on the playhouse.
He also claims that although he consulted with Shaw on the electrical work necessary to complete the playhouse, Shaw, on his own, purchased electrical components for the playhouse and “charged it to the county without Ross’ knowledge or approval.”
“When Shaw returned [from purchasing the items], he pitched the sack on the table, and Ross asked him what he was going to do with that stuff because it was not to be used on the tree-house,” the affidavit says.
Shaw told Ross he would use it on the west wall of the county barn. The affidavit says Ross placed the electrical items that Shaw did not use in a box in his office, and after being temporarily removed from office, he took those items to his attorney for safe keeping.
The affidavit says, “Ross does not believe that anything purchased by Shaw on the 13th of December was ever used in the construction of the tree-house.”
It says the invoice that Shaw charged was for $72.89.
The document also says Ross signed the invoice from the 13th believing all of the items were used by Shaw in doing repairs for the county or were set aside for the county’s use.
Shaw resigned Dec. 15.
According to the affidavit, Ross doesn’t know whether Shaw did any work on the tree-house until Dec. 15, after which time he allowed Shaw to help.
The affidavit goes on to explain that at the end of each workday, employees return to the precinct barn to clock out and go home. According to the affidavit, it’s common for employees to reach the barn before their time to clock out, and while they were waiting to clock out each day on the week of Dec. 12, “if they saw Ross or Shaw working on the tree house, they might, on their own volition, lend a hand to hold a board or help chalk a line. Ross never asked any of them to help, but they sometimes did so for a brief period of time while waiting to clock out with nothing to do.”
On Dec. 22, the tree house was finished and loaded on Ross’ personal trailer and erected on his property, according to the affidavit.
On March 10, Stainton filed a response with objections to Fielding’s filing and maintains there is no reason to rehash the details of the criminal case because Ross pleaded guilty.
“The affidavit filed by the respondent is a sham affidavit that attempts to create a fact issue where none exists in this case,” Stainton says.
The county attorney says in his response despite the fact Ross admitted otherwise and signed under oath a judicial confession in district court to the allegations, he is attempting to claim now that he didn’t do it.
“(Ross) has displayed a consistent pattern of denying the allegations of criminal activity then later admitting to them,” he says in the response. “When questioned by Texas Ranger James Holland on Jan. 26, 2012, (Ross) initially denied ever using county property or personnel during the construction of the playhouse. Later on in the interview, Holland testified that (Ross’) story changed, and he admitted to using county materials on the playhouse.
“The same pattern of denying wrongdoing then later admitting to it continues in his response and affidavit. Respondent Ross pled guilty, was convicted, but now would like this court to believe he ‘didn’t do it.’”
Fielding says Stainton’s request for summary judgment brings up the following question: Can a county commissioner be removed from office for “official misconduct” without a jury trial when he was not convicted of “official misconduct,” but instead has pleaded guilty to a lesser offense?
In an amended petition for removal filed in October, Stainton says Ross’ guilty plea and misuse of government property “constitutes official misconduct,” which can result in removal from office according to Local Government Code 87.013.
The code says “conviction of a county officer by a petit jury for any felony or misdemeanor involving official misconduct operates as an immediate removal from office.”
Although Ross was not convicted by a jury, Stainton’s motion contends the guilty plea is enough to warrant the removal.
In the response filed by Fielding, Ross says when negotiating with the prosecutor Robert Gill last fall, he was “informed there was no evidence of the commission of any felony, and that if he accepted a plea bargain to the misdemeanor charge, he would be allowed to continue to hold public office.
“In fact, he engaged in negotiations with the prosecutor that, if successful, would have resulted in his reinstatement with full back pay at the time of his conviction,” the document says.
In Stainton’s response, he disputes this information and includes an affidavit by Gill stating such.
“I did not represent to Mr. Ross that he would be able to continue to hold public office,” Gill’s affidavit says. “I did not engage in negotiations with Ross that represented to him that he would be reinstated and/or that he would receive any back pay.”
Gill also says in the affidavit that he did not discuss the cases with Ross. All communication was through his attorney at the time, Jerry Loftin. Gill also noted that his discussions with Loftin were about only the criminal case, not the civil removal case.
Stainton included objections to most of what Fielding filed. In Stainton’s response, he asks the district court to strike Ross’ affidavit from Fielding’s response because it is an “attempt to introduce otherwise inadmissible information into this case without supporting affidavits.” Stainton says most of Ross’ affidavit is written in third person and does not indicate Ross has any personal knowledge of the information included.
“The entirety of the affidavit, each and every paragraph, covers issues which have been previously litigated … The affidavit is an attempt to create a fact issue in the civil case from facts previously litigated in the criminal case,” Stainton adds.
Since Ross pleaded guilty, Stainton says those facts should not be questioned or considered again in a court.
As of Friday, it was unknown if Towery would travel to Wise County to rule on the summary judgment or do so from his office in Henrietta. Information regarding the ruling will be posted on wcmessenger.com as soon as it’s available.