Appeals court to hear Ross case

Former County Commissioner Terry Ross will get yet another day in court.

Or at least, his case will.

Terry Ross

Terry Ross

The Second Court of Appeals in Fort Worth will hear oral arguments in Ross’ appeal of his removal from office at 10:30 a.m. Tuesday, Oct. 14. The case will be heard by a panel of three judges – Chief Justice Terrie Livingston, Justice Sue Walker and Justice Lee Gabriel.

Ross’ attorney, David Fielding, requested an oral argument in an appellant brief filed July 14, which summarizes Ross’ version of the facts and contends the summary judgment in his removal case was unwarranted.

Wise County Attorney James Stainton also requested an oral argument in a brief filed Aug. 12, and on Sept. 3, the court set the date for oral arguments.

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.

That suit was filed in the midst of an investigation into Ross’ use of county money and employees, on county time, to build a playhouse for his grandchildren in the county barn.

Ross was eventually charged with tampering with governmental records, theft of $500 to $1,500 by a public servant, and abuse of official capacity greater than $20 but less than $500. After multiple delays, he was scheduled to go before a judge and jury Sept. 23, 2013, but instead accepted a plea deal.

Ross pled guilty to abuse of official capacity, a misdemeanor, and got $500 restitution and 180 days in jail, probated for one year. As part of the agreement, the two felony charges were dismissed.

Ross claims in the appellant brief that “at the time of the plea, (he) understood that he could be reinstated to his position with the county with full back pay.”

He contends that he did not waive his right to a jury trial in the removal case just because he waived it in the criminal case by pleading guilty. He also claims that his misdemeanor conviction did not involve official misconduct and therefore was not subject to a summary judgment and removal. His lawyer also said in the brief that conviction of a Class B misdemeanor does not permit his removal from office under the “immediate removal” statute.

In Stainton’s response, he says “the facts leading up to (Ross’) removal from office should not be in dispute.” He also writes that “according to the judgment of conviction, (Ross) pled guilty ‘as alleged in the indictment’ and agreed that his actions constituted an abuse of official capacity.”

The summary of Stainton’s argument says: “… Ross is prohibited from re-litigating any issues in this case, which were previously litigated in the criminal case. Further, regardless of (Ross’) intent, he was automatically removed from office upon his plea and conviction for misdemeanor abuse of official capacity. Thus, the trial court’s order granting summary judgment in this matter should be affirmed.”

Both sides will present an oral argument next month in the Appeals Court – and those proceedings are open to the public. The Second Court of Appeals is in the Tim Curry Criminal Justice Center, 401 W. Belknap, Suite 9000, in Fort Worth.

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Ross continues argument in appeals court

David Fielding, attorney for former Precinct 4 County Commissioner Terry Ross, filed a brief July 14 in a continued effort to appeal his removal from office.

Terry Ross

Terry Ross

The appellant brief, filed in the Second Court of Appeals in Fort Worth, summarizes Ross’ version of the facts and contends the summary judgment in his removal case was unwarranted.

District Judge Roger Towery issued the judgment, removing Ross from office March 19 to settle a civil suit filed by retired Texas Ranger Lane Akin of Decatur in June of 2012.

That suit was filed in the midst of an investigation that Ross had built a playhouse for his grandchildren in the county barn, using county money and employees on county time.

Ross was eventually charged with 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. After multiple delays, he was scheduled Sept. 23, 2013, to go before a judge and jury, but instead accepted a plea deal.

Ross pled guilty to abuse of official capacity, a misdemeanor, and got $500 restitution and 180 days in jail, probated for one year. As part of the agreement, the two felony charges were dismissed.

Ross claims in the appellant brief that “at the time of the plea, (he) understood that he could be reinstated to his position with the county with full back pay.”

Fielding outlines in the brief that Ross’ removal should be reversed based on the following three arguments:

  • Ross’ conviction of a Class B misdemeanor does not permit his removal from office under the “immediate removal” statute.
  • The misdemeanor conviction did not involve official misconduct, and therefore Ross’ case was not subject to a summary judgment and removal.
  • Ross did not waive his right to a jury trial in the removal case just because he waived his right to a jury trial by pleading guilty to the criminal charge.

County Attorney James Stainton must file a response by Wednesday, Aug. 13. A three-judge panel will eventually rule on the appeal.

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Ross files appeal

Even after being judicially removed from office March 19, former Precinct 4 County Commissioner Terry Ross isn’t ready to give up.

Terry Ross

Terry Ross

Ross appealed the decision to the Second Court of Appeals in Fort Worth and filed the paperwork Thursday in the 271st District Court in Decatur.

County Attorney James Stainton said it could be late summer before a ruling is issued.

Ross was removed from office last month whnen District Judge Roger Towery issued a summary judgment in the civil suit filed in June of 2012 regarding the commissioner’s removal. The judgment was issued at the request of Stainton.

Last fall Ross pleaded guilty to abuse of official capacity, a misdemeanor charge tied to the construction of a playhouse for his grandchildren in the Precinct 4 barn. Two felony charges were dismissed as part of the agreement, which gave him $500 restitution and 180 days in jail, probated for one year.

Stainton said Thursday that Ross’ appeal will be heard by a three-judge panel. The appeal is related only to his removal – the ruling will not affect the outcome of the recent primary (in which he was defeated) or the appointment April 3 of a new, interim Precinct 4 commissioner.

“I maintain what I’ve said all along that when one person is convicted of a criminal offense related to their office, they shouldn’t get to hold their office,” Stainton said. “That’s what I argued in my summary judgment, and that’s what the judge reviewed in removal. He saw that it had merit then, and I believe that will be the case again.”

Ross did not return calls by press time Friday.

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County taps Hughes as interim judge

Glenn Hughes resigned from one county job Thursday and was named to another one Monday.

Wise County commissioners appointed Hughes interim county judge at their regular meeting this week.

Glenn Hughes

Hughes, the county’s special project manager, had been serving as temporary Precinct 4 commissioner since Terry Ross was suspended in August 2012. He was appointed to that post by District Judge Roger Towery but resigned last week after Towery filed an order removing Ross from office.

The county judge’s seat has been vacant since the death of Judge Bill McElhaney in October. Precinct 2 Commissioner Kevin Burns had fulfilled those duties the last five months.

Precinct 1 Commissioner Danny White was the first to speak up in favor of Hughes, recommending him for the post.

“I feel like we have people that are willing to help the county, and I appreciate that, but my thought is I would like to see someone who is knowledgable about what we’re doing in the county.

“We have several things that we have to get resolved as soon as possible, so I feel like knowledge is more important than qualifications,” he said. “I don’t want to say anyone is overqualified or under-qualified. I feel like we could put Glenn Hughes in there, if he’s willing to accept it, and he’s knowledgeable about what we as commissioners are doing right now.”

White asked other commissioners to speak up if they knew of anyone “knowledgable or more knowledgable.” Burns noted that two other men seeking to secure the appointment were also present – Don Alexander of Decatur and Bridgeport Index reporter Charles Duke.

Although Precinct 3 Commissioner Harry Lamance didn’t endorse Alexander or Duke, he was not convinced Hughes was the best choice.

“While Glenn has done a swell job, I think it’s our duty to be above reproach on any aspect and in the perspective of appointing someone to this … I don’t know. I have mixed feelings …,” he said. “I hate to be in this position. I wish Judge Bill was still here. It’d be a lot easier on us.

“How the public perceives what we do is important,” he said. “Whatever it is … it’s how they perceive it.”

Although Lamance never mentioned a specific concern, he and Hughes did run against each other in the 2012 Republican primary seeking the Precinct 3 commissioner job. Lamance easily won, 571-335.

Public Works Director Tom Goode spoke up in favor of Hughes and said since he had worked closely with McElhaney, Hughes would be able to move forward with some of McElhaney’s plans.

“I think Glenn is going to continue as Bill would have done,” he said. “That set us all back, him passing. I think this will enable us to continue with the plans that we had made. I feel like it will be OK … Him being in there will be a continuation of what we got started and what we’ve got going.”

Sheriff David Walker echoed Goode’s sentiments.

“I agree with Tom. When Glenn was helping the judge do stuff, he had an office down there with ours, and he knew what we were working on,” he said. “I think Glenn would keep continuity with the court.”

Burns then gave the floor to Alexander and Duke, who was also covering the meeting for the Index.

Alexander said he’d been a resident of Wise County for 26 years. He worked for Denton County 19 of those years, most recently as elections administrator, a job he held from 1999 to 2009, when he retired. Prior to that he held a position working closely with the county judge. He worked on county budgets throughout his tenure.

“I’ve always kept up with things in Wise County,” he said. “I couldn’t be involved in politics here, but I kind of stayed in the background. I have expertise in doing the job, and I’m currently retired. The only thing I would have to adjust is my RV schedule.”

Duke said he’d been an absentee landowner in Wise County since age 9 when his family bought property on Lake Bridgeport. He’s now living on that property. He also cited experience with budgets during his corporate career.

“I think that’s where I was coming from with the court … as far as being able to work with budgets,” he said. “But in light of Glenn Hughes and the situation here, I really don’t know if you can do better than that.”

White said all three were qualified but stuck with his original recommendation of Hughes. He also noted the two are not brothers-in-law, as some people think. (In fact, White’s brother-in-law is Lowell Hughes, Glenn’s brother. Lowell is married to White’s sister, Brenda.)

Burns said he didn’t know of anyone more qualified than Hughes to handle the current issues facing county commissioners.

“Charles brings the most business expertise to the court,” Burns said. “Don has the best record as far as being a former county employee and responsible for budgets, but I will also say that Judge Bill picked Glenn to fill a position and then hired him.”

McElhaney appointed Hughes to temporarily fill the Precinct 3 commissioner job in 2009 when Mikel Richardson died, and later hired him to be the county’s special projects manager.

Burns noted a decision didn’t have to be made at Monday’s meeting, but it did need to be done before work started on the budget for fiscal year 2015.

“A commissioner can’t do the budget. Somone else has to, an appointed officer,” he said. “I’ve been honored to get to do (the judge’s job), but I’m not doing a good job at either place, (my precinct barn) or the courthouse. I’d really like to do one or the other and would like to go back to what I was elected to do, the sooner, the better.”

Hughes spoke, addressing Lamance’s concern, before the vote.

“I know these other gentlemen are probably smarter than me, but no one is more open and honest than me,” he said. “If the public ever questions anything, they’ll never find that I’ve done anything dishonest or illegal. I feel like my honesty will carry us through anything we need to face if there’s an issue in that department.”

Commissioners approved appointing Hughes 2-1, with Lamance being the lone vote in opposition.

Hughes said Judge McElhaney’s loss left a big void in Wise County government, and he hoped to continue some of his plans.

“I appreciate the confidence,” he said, “and Kevin, we all appreciate what you’ve done.”

Hughes will be county judge until either Republican J.D. Clark or Democrat Jim Stegall is elected in November. Since the office was vacated at the death of Judge McElhaney, the winner will take office as soon as the votes are canvassed instead of waiting until January 2015.

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Terry Ross removed

Precinct 4 County Commissioner Terry Ross was legally removed Wednesday from the job he’s been suspended from performing for more than two years.

Terry Ross

Terry Ross

The action by District Judge Roger Towery ends a two-year saga revolving around a child’s playhouse.

Judge Towery granted County Attorney James Stainton’s request to issue a summary judgment in the civil suit regarding the commissioner’s removal. The order, filed in the clerk’s office of the 271st District Court, reads:

“The court finds that (Ross) was convicted of a misdemeanor involving official misconduct during the time he held public office. Pursuant to Local Government Code 87.031, the court orders that Terry Ross is immediately removed from the office of Wise County commissioner, Precinct 4.”

Stainton said it’s “the right result.”

“It fits the law. When you plead guilty to a criminal offense tied to your elected office, you shouldn’t expect to stay in office,” he said.

Ross pleaded guilty Sept. 23, 2013, to abuse of official capacity, a misdemeanor, which was tied to the construction of a playhouse for his grandchildren in the Precinct 4 barn. Two felony charges were dismissed as part of a plea agreement, which gave him $500 restitution and 180 days in jail, probated for one year.

The removal was the result of a civil suit filed by retired Texas Ranger Lane Akin of Decatur in June of 2012. The civil suit was filed four months after the playhouse was seized from the Ross home as the result of an investigation that started in late 2011.

UNDECIDED ON APPEAL

Ross now has 30 days in which to appeal the ruling on his removal. Friday he told the Messenger he hadn’t yet made up his mind.

“I haven’t even talked to my attorney,” he said.

At stake is close to $150,000. If Ross gets the job back, the county would be required to pay him for the time he was suspended, which totaled $146,453.12 as of March 15. His removal does not affect his retirement.

Ross, 53, has worked for the county for 11 years and was serving his third term as county commissioner.

Despite being temporarily suspended, he ran for re-election in the March 4 primary but was defeated soundly by Gaylord Kennedy, 981 to 319. A third candidate, David Stewart, received 351 votes.

Ross said, “It was kind of hard to [win] with the press,” and doubts that he’ll seek public office again, although his removal doesn’t prohibit it.

“It just depends on what I start right now and get into doing,” he said.

Ross’ attorney, David Fielding, did not return the Messenger’s call.

Stainton said Towery had reviewed the pleadings and had made his decision when he arrived in Decatur Wednesday morning to file the order.

“The lawyers agreed to submit everything without argument,” Stainton said. “It was about as simple as it can be.”

The county attorney said he’s glad to be moving forward.

“It’s taken a significant amount of time from my office,” he said. “But I believed in it from the beginning. When former Texas Ranger Lane Akin brings something to you, you pay attention.”

Stainton said he believes the ruling shows that if a person is entrusted with taxpayer money, he or she will be held accountable for it.

“When you choose to plead guilty, you choose to accept the consequences,” he said.

HUGHES STEPS DOWN

On Thursday, interim Precinct 4 Commissioner Glenn Hughes resigned. He was appointed to the position by Towery in August 2012 at the time of Ross’ suspension. Hughes is also the county’s special project manager.

His resignation leaves two vacancies on commissioners court – the Precinct 4 post and the county judge position, which was left vacant following the death of the late County Judge Bill McElhaney.

Wise County commissioners will discuss appointing an interim county judge at Monday’s commissioners meeting, and the newly appointed judge will later appoint someone to fill the Precinct 4 position.

The meeting starts at 9 a.m. in the third-floor conference room of the courthouse in Decatur. The public is welcome.

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Ross ruling expected Wednesday

Suspended Wise County Commissioner Terry Ross Wednesday will be either permanently removed from office or granted a jury trial.

Terry Ross

Terry Ross

District Judge Roger Towery is scheduled to rule on Wise County Attorney James Stainton’s Nov. 21, 2013 request for a summary judgment in the civil suit regarding Ross’ removal.

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 totaled $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 would not prohibit him from seeking the office again.

Ross finished third among three candidates for the Republican nomination for his old job in the March 4 primary, effectively eliminating him from contention in this November’s election.

As of press time Tuesday, it was unknown if Towery planned to issue a ruling in the 271st District Courtroom or from his office in Henrietta. His decision will be posted on wcmessenger.com as soon as it’s released.

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Dueling affidavits: Hearing Wednesday means removal, or trial, for Ross

Dueling affidavits: Hearing Wednesday means removal, or trial, for Ross

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

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.

ROSS’ VERSION

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.’”

OFFICIAL MISCONDUCT

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.

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Ross seeks jury trial

Suspended Precinct 4 Commissioner Terry Ross is seeking a jury trial instead of a summary judgment in the civil suit regarding his removal from office.

Terry Ross

Terry Ross

Ross’ attorney, David Fielding, on Monday filed a response to the motion for summary judgment, which Wise County Attorney James Stainton had filed in the 271st District Court.

Fielding says in the response that the motion raises 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?

Ross pleaded guilty Sept. 23 to abuse of official capacity, a misdemeanor, which was tied to the construction of a playhouse for his grandchildren in the Precinct 4 barn. Two felony charges were dismissed as part of a plea agreement, which gave him $500 restitution and 180 days in jail, probated for one year.

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 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,” it says.

Fielding says in his response that a respondent, in this case Ross, “should not be deprived of his day in court if there is the slightest doubt to any of the issues” … in the motion for summary judgment.

Ross, who has been suspended from office since August 2012, is seeking re-election in the March 4 primary. His opponents are Gaylord Kennedy and David Stewart. The winner of the Republican primary will face Democratic challenger Kristina Kemp in the November general election.

On March 19, District Judge Roger Towery is scheduled to hold a hearing for the motion for summary judgment. If Ross is removed from office, whether by Towery or jury trial, it will be for the duration of his current term only. It does not affect a new term if he’s elected or prohibit him from running again.

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Petition filed to reinstate Terry Ross

Citizen A.C. Archer filed a voters motion just before Christmas asking the 271st District Court to reinstate suspended Precinct 4 Commissioner Terry Ross.

Terry Ross

Terry Ross

In the motion filed Dec. 19, Archer also requests that County Attorney James Stainton’s motion for summary judgment be denied.

Along with the motion, Archer filed a voter petition asking the court to “dismiss the temporary removal of our good and honerable (sic) county commissioner Terry Ross. That Mr. Ross be returned to the job that we the voters elected him to do.”

The petition also states that “we the voters in Precinct 4 are sure our voter rights have been violated.”

It appears there are 93 signatures on the petition, but the names are not numbered and some are difficult to read.

Archer did not return a call by press time Friday.

Just one day after Archer filed his petition, Stainton filed a second amended petition for removal, which is a follow-up to the amended petition for removal he filed in October.

In this document filed Dec. 20 with the district clerk, Stainton reinforces his argument that Ross should be removed from office without a jury trial, and he requests that Ross remain suspended until the case is resolved.

In addition to arguments previously made, he outlines another that says issues already decided by a court should not be re-litigated. He says Ross shouldn’t be allowed to “subvert the appeal process and use this civil matter to contest those issues already decided by his plea of guilt and conviction.”

“Allegations of misconduct pled in this matter are identical to those alleged by the state in the criminal case,” the petition states.

Stainton requests that Ross be stopped from “challenging or re-litigating any issue, at trial, through discovery or otherwise,” which is related to his Sept. 23 criminal conviction.

Last fall Ross pleaded guilty to abuse of official capacity greater than $20 and less than $500. The plea agreement required $500 restitution and 180 days in jail, probated for one year. The agreement also dismissed two felonies.

Stainton said in October “the game changed dramatically with the conviction.” He was unavailable for comment Friday.

After both of these documents were filed, District Judge Roger Towery on Dec. 23 set the motion for summary judgment hearing for March 19, 2014.

Ross has filed for re-election and will face challengers Gaylord Kennedy and David Stewart in the March 4 Republican primary. Towery’s ruling will have no impact on the election results.

If Ross is removed from office, whether by Towery or jury trial, it’s for the duration of his current term only. It does not affect a new term if he’s elected or prohibit him from running again.

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Top Stories of 2013 #3: Ross pleads guilty, runs for re-election

Top Stories of 2013 #3: Ross pleads guilty, runs for re-election

Suspended County Commissioner Terry Ross pleaded guilty to abuse of official capacity in September, and just two months later decided he’d give it another go and run for re-election.

Suspended

SUSPENDED – Commissioner Terry Ross turns and grins at his wife, Kelli, after District Judge Roger Towery announced Ross’ temporary suspension. Messenger photo by Joe Duty

The suspended Precinct 4 boss remains defiant after a run-in with the law that started two years ago.

In February 2012, Texas Rangers seized a child’s playhouse from the Ross home as the result of an investigation that started in late 2011. The commissioner faced charges related to its construction with materials and labor paid for by the county, and since then, the case has bumped along through the court system.

Ross was suspended by District Judge Roger Towery in August 2012 after a citizen filed a petition for his removal citing incompetency and official misconduct. The petition came on the heels of indictments for abuse of official capacity greater than $20 and less than $500, a Class B misdemeanor, and tampering with governmental records, a felony.

In October 2012, Ross was indicted on a second felony, theft of $500 to $1,500 by a public servant.

Done Deal

DONE DEAL – 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. As part of the agreement, two felony charges against Ross were dismissed. Messenger photo by Jimmy Alford

As 2013 opened, a Feb. 19 trial date loomed, but it was seven months later before Ross actually went to court. The February date, rescheduled from October 2012, was pushed to April. The April date was bumped to Sept. 23 when District Attorney Greg Lowery had to recuse his office at the last minute after being reminded that he represented Ross in a criminal matter 16 years earlier.

Assistant District Attorney Robert Gill out of Tarrant County was appointed as prosecutor, and along the way Ross parted ways with lawyer Barry Green and took up with Jerry Loftin of Fort Worth.

On the morning of Sept. 23, almost 100 potential jurors and more than 20 possible witnesses filled the first and second floors of the Wise County Courthouse in Decatur. They waited in the hallways and various courthouse offices for more than an hour before being released when Ross signed a plea agreement just before 10 a.m.

He admitted guilt on the misdemeanor charge of abuse of official capacity greater than $20 and less than $500, and the other two charges, both felonies, were dismissed.

The plea agreement required $500 restitution and 180 days in jail, probated for one year. If Ross had been convicted by a jury of either felony, he would have been automatically removed from office and disqualified from running again.

Instead, the outcome of a civil suit will determine if he remains in office or is removed.

County Attorney James Stainton has filed a motion for summary judgment, requesting that Towery remove Ross from office without a trial. Just last week, Towery scheduled a hearing on that motion for March 19, 2014. Assuming it is not delayed, he will either issue a ruling removing Ross from office, or decide that a jury trial is necessary.

While his latest attorney, David Fielding of Fort Worth, familiarizes himself with the case, Ross has a campaign to run. He faces Gaylord Kennedy and David Stewart in the March 4 Republican primary.

Towery’s ruling on the summary judgment has no impact on the results of the election and if he is removed, it’s only for the duration of his current term. If Ross is not removed from office, the county will owe him back pay, which totals $125,453.12 as of Dec. 31.

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Ross ruling expected next year

Suspended Precinct 4 County Commissioner Terry Ross will keep his job for at least three more months.

Terry Ross

Terry Ross

District Judge Roger Towery Monday set the motion for summary judgment hearing for March 19, 2014.

On that date, he will rule on County Attorney James Stainton’s motion, which requests that Ross be removed from office without a trial.

This stretches the timeline of the Ross case to more than two years. In February 2012, Texas Rangers seized a child’s playhouse from the Ross home as the result of an investigation that started in late 2011. The commissioner faced charges related to its construction with materials and labor paid for by the county, and since then, the case has bumped along through the court system.

Towery met with Stainton and Ross’ attorney, David Fielding, behind closed doors in the county courthouse Monday morning. Fielding had requested a scheduling conference to create a timeline for discovery, depositions, and the like, but Stainton said it was decided there would be no additional discovery until the judge rules on the motion for summary judgment.

In the meantime, Ross has a campaign to run. He filed for re-election and is facing two competitors – Gaylord Kennedy and David Stewart – in the March 4 Republican primary.

Towery’s ruling on the summary judgment has no impact on the results of the election. If Ross is removed from office, it’s only for the duration of his current term, which ends Dec. 31, 2014.

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Attorney requests pre-holiday conference

The Terry Ross courtroom drama will have one more act before Christmas.

A scheduling conference has been set for 10 a.m. Monday, Dec. 23, at the request of Ross’ attorney, David Fielding. Fielding is the third attorney hired by the Ross family since the Precinct 4 commissioner found himself facing charges in 2012 related to the construction of a child’s playhouse with materials and labor paid for by the county.

Although Ross pleaded guilty Sept. 23 to a criminal charge, the civil suit regarding his removal from office is still unresolved. Ross is seeking a jury trial, b’ut Wise County Attorney James Stainton wants District Judge Roger Towery to issue a summary judgment in the case and remove Ross from office.

Last month, Stainton filed a motion for summary judgment in the 271st District Court, and last week Fielding submitted his request.

“I think (the scheduling conference) is unnecessary at this point because I think the summary judgment covers it,” said Stainton. He explained that scheduling conferences generally allow the lawyers and judge to create a timeline for discovery, depositions and paper discovery, but Stainton doesn’t feel this is needed because Ross already pleaded guilty.

“Everything has already happened,” he said. “All the facts of the case have already been resolved with Ross’ guilty plea.

“It wasn’t my desire to have a scheduling conference, but it is common in civil cases.”

Although it was previously reported in the Messenger that Towery would rule on the summary judgment within 21 days of its filing, that was incorrect.

There is no set timeline in which the case will be resolved, but Stainton is hopeful Towery will soon set a time for a summary judgment hearing.

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Ross runs again

Precinct 4 Commissioner Terry Ross, who has been suspended for more than a year, filed Tuesday for re-election.

He’ll be seeking a fourth term in the March Republican primary.

Terry Ross

Terry Ross

Despite pleading guilty Sept. 23 to abuse of official capacity and previously facing felony charges, Ross claims he still has a base of support.

But when asked why voters should re-elect him, he hesitated.

“Well, let’s not get into that …” he said.

Ross was suspended in August 2012, two months after former Texas Ranger Lane Akin, acting as a citizen, filed a petition for his removal citing incompetency and official misconduct. The petition came on the heels of indictments for abuse of official capacity greater than $20 and less than $500, a Class B misdemeanor, and tampering with governmental records, all of which was tied to the construction of a playhouse in the Precinct 4 barn. It was a gift for his grandchildren.

Tampering with governmental records, and a second felony – theft of $500 to $1,500 by a public servant – on which he was indicted in October 2012, were dismissed as part of the Sept. 23 plea agreement. His punishment for the misdemeanor was $500 restitution and 180 days in jail, probated for one year.

If Ross had been convicted by a jury of either felony, he would have been automatically removed from office and prohibited from running again.

When asked what he might say to voters who feel betrayed by him, he paused again before simply responding, “Good question …”

“I just stand for what I believe in, and I don’t believe I really did anything that constituted all of this,” he said. “And the whole story’s not out there.”

Ross, who was represented in the criminal case by Jerry Loftin of Fort Worth, said pleading guilty “was his attorney’s deal.”

“I don’t know why [I pleaded guilty],” he said. “I couldn’t even go and sit and talk to my lawyer [the day of the trial]. We’d asked for a place to go meet, but they had jurors stuck in every room.”

Ross said Loftin’s main concern was to get the felonies “out of the way.” He said Prosecutor Robert Gill, a Tarrant County district attorney, said there wasn’t enough evidence to make the felonies stick.

“That was my big question. How’d I get charged with them?” said Ross. “How did our crew get it through the grand jury then? I know how they did it, but I’m not going to say right now.”

Ross finally admitted that he had likely lost some voters but said it was folks that have only heard one side of the story.

“I’ve done what voters have asked me to do. I got their roads paved and lowered their taxes,” he said. “We even got the other commissioners picking up their feet and paving roads.

“I’ll keep serving voters like I always have,” he said.

Ross’ suspension will remain in place until the civil suit regarding his removal from office is resolved. The commissioner is seeking a jury trial, but County Attorney James Stainton wants District Judge Roger Towery to issue a summary judgment in the case and remove Ross from office.

Stainton filed a motion for summary judgment in the 271st District Court Nov. 21, and Towery will issue a ruling within 21 days.

Even if Ross is removed from office, he is still eligible to run for another term.

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Ross removal: Stainton says ‘trial not necessary’

The wheels of justice continue to slowly turn in the case against suspended Precinct 4 County Commissioner Terry Ross.

Terry Ross

Terry Ross

Although he pleaded guilty Sept. 23 to a criminal charge, the civil suit regarding his removal from office is still unresolved. Ross is seeking a jury trial, but Wise County Attorney James Stainton wants District Judge Roger Towery to issue a summary judgment in the case and remove Ross from office.

Last Thursday Stainton filed a motion for summary judgment in the 271st District Court, and Towery will issue a ruling within 21 days.

Stainton said if a jury trial is held, the only question that goes to the jury is “Do you find that the allegations of this misconduct are true?”

“The acts alleged are already found to be true,” said Stainton. “There’s no spin to this. It’s just what the facts are. If you want to ask what the acts of misconduct are, they’re there … in the plea transcript and guilty plea …

“Why do we need a jury if (Ross) already agreed that (he’s) engaged in the acts?” he asked.

Two months ago Ross pleaded guilty to abuse of official capacity, and two felony charges were dismissed as part of a plea agreement, which gave him $500 restitution and 180 days in jail, probated for one year.

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 argues in the motion that his guilty plea is enough to warrant the removal.

The motion for summary judgment says: “The evidence is undisputed that [Ross] pleaded guilty and was convicted of abuse of official capacity on Sept. 23, 2013. As part of the plea, he admitted to taking and using Wise County property unlawfully in his capacity as Wise County commissioner as alleged in the indictment. [Ross] also waived his Constitutional right to have a jury determine his guilt or innonence.”

Stainton says that since Ross waived his right to a trial through his guilty plea in the criminal case, a jury trial shouldn’t be required for the civil case.

“Ultimately, it is the conviction that operates to remove an elected official from office,” he says in the motion. “The limited cases on this issue indicate that when an official chooses to waive his Constitutional right to a jury, he necessarily chooses to waive his right to a jury in the civil statutory right as well.”

Stainton references a 1978 case in El Paso County where then-Sheriff Michael Sullivan Jr. pleaded guilty to two counts of misdemeanor official misconduct and waived his right to jury. As part of the case, several felony counts were dismissed and the court entered an order stating that the sheriff would not be removed from office.

The motion says the El Paso Court of Appeals held that the plea “did indeed result in immediate removal and that since the sheriff ‘chose to waive that valuable right, he may not now complain that the findings of official misconduct were made by the judge hearing the case rather than a jury.’

“The court concluded that the conviction for misdemeanor official misconduct results in automatic removal and that by pleading guilty the sheriff necessarily chose to accept the loss of office under the removal provisions.”

Along with the motion, Stainton filed copies of the judgment against Ross and the three indictments against him to illustrate the fact that he admitted to wrongdoing.

The original petition for removal was filed by citizen Lane Akin in June 2012 when Ross was under indictment by a grand jury 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.

“It’s been a big, painful thing for our county as a whole, and it needs some finality,” said Stainton. “And if we have to have a jury trial, then we’ll have a jury trial, but you can see in my motion that I think it’s not necessary.

“If the guy involved has already, by his own words, determined the facts, why are we burdening the county any more?”

Ross’ attorney, David Fielding with Fielding Parker and Hallmon in Fort Worth, refused to comment.

According to his secretary, “he does not normally talk to reporters.”

Jerry Loftin represented Ross in the criminal proceedings.

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Affidavit: Ross used county funds, labor for personal project

A playhouse is usually the center of children’s games, but one in Wise County is now the focus of a theft investigation involving Precinct 4 County Commissioner Terry Ross.

The playhouse was seized from the Ross home in Boonsville when Texas Rangers executed a search warrant Tuesday afternoon.

Terry Ross

Although Rangers Jim Hicks and Jim Holland could not comment, they say in the search warrant affidavit that Ross admitted to using taxpayer dollars to purchase construction materials for the playhouse and that county employees worked on the playhouse on county time.

The affidavit says it could be considered theft by a public servant, a state jail felony, punishable by 180 days to two years in jail and a maximum fine of $10,000.

Ross, who’s serving his third term as county commissioner, refused to comment in a phone call Thursday morning and said he “would have [his attorney] call.” Ross is being represented by Barry Green, former district attorney for Wise and Jack counties.

Green did not call by press time Friday, and he didn’t return Messenger calls to him Wednesday or Thursday.

According to the affidavit, “… Commissioner Ross stated he utilized supplies purchased by himself and a county employee using Wise County funds to build a playhouse intended for his grandchildren. Ross and multiple county employees stated the playhouse was built in the Wise County Precinct 4 county-owned barn.

“During the interview, Ross admitted that county employees completed the work on the playhouse while being paid by Wise County.”

Rangers say in the affidavit that supplies purchased included 2-by-6 treated wood boards, screws, plywood, electrical wire and switches. The amount of money in question is not mentioned in the affidavit, and requests for copies of the associated receipts were denied because it is an ongoing investigation.

When the playhouse was seized, a string of law enforcement vehicles and trucks hauling equipment from the county’s Public Works Department arrived about 2:30 p.m. at the residence just off Farm Road 920, on County Road 3741.

Public Works employees and an inmate work crew dismantled the exterior features of the camouflage structure, which was located under a tree.

The 10×13 building sat on stilts and had a ladder, balcony and climbing wall. Investigators removed a paintball gun and small refrigerator from inside before using a front-end loader to remove the playhouse from its stilts.

It was loaded on a trailer and hauled from the site.

Ranger Hicks’ report will be submitted to District Attorney Greg Lowery who will review it and decide if a criminal act has occurred.

If he makes this determination, the case will go to the grand jury for possible indictment.

Ross was first elected in 2002. He defeated two-term Democratic incumbent Paul Wood. In 2006, Ross defeated Democrat Kenneth Fuqua.

Wood changed parties and ran against Ross in the 2010 Republican primary. Ross won that election 944 to 862.

Green was district attorney in Wise County when a similar case was prosecuted in 1999. Mikel Richardson, who was county auditor at the time, was indicted in June of that year for theft by a public servant for using county money to purchase $895 in construction materials that were used to build a personal storage building.

Green reduced the charge to a misdemeanor, theft more than $500 and less than $1,500, as part of a plea deal. Richardson served two years probation and 80 hours community service.

County auditor is an appointed position, and Richardson was permanently removed from that post in September of 1999 following the plea deal.

Because Richardson was not convicted of the original felony charges, he was able to run for Precinct 3 county commissioner in 2000. He was serving his third term when he died in November 2009.

Email Kristen at ktribe@wcmessenger.com. Follow her on Twitter @WCMtribe.

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Commissioner investigated for theft

Commissioner investigated for theft

STRUCTURE SEIZED - A child's playhouse is loaded onto a trailer at the residence of Precinct 4 Commissioner Terry Ross Tuesday afternoon. It was seized after a search warrant was issued about 2:30 p.m. Messenger photo by Joe Duty

A playhouse was seized at the home of Precinct 4 County Commissioner Terry Ross Tuesday afternoon as part of a theft investigation.

Terry Ross

Texas Rangers executed a search warrant at the Ross home, just off Farm Road 920 on County Road 3741, in Boonsville and according to the warrant, it was built with materials paid for by Wise County taxpayers.

The Messenger acquired the warrant, which is public record, Wednesday morning.

Texas Rangers James Hicks and Jim Holland interviewed Ross, and according to the warrant, Ross admitted that materials were billed to Wise County and that county employees worked on the playhouse on county time.

The warrant says, “During the interview, Commissioner Ross stated he utilized supplies purchased by himself and a county employee using Wise County funds to build a playhouse intended for his grandchildren. Ross and multiple county employees stated the playhouse was built in the Wise County Precinct 4 county-owned barn.

“During the interview, Ross admitted that county employees completed work on the playhouse while being paid by Wise County.”

Tuesday afternoon a string of law enforcement vehicles and trucks hauling equipment from the county’s Public Works Department arrived about 2:30 p.m. at the commissioner’s home.

No one answered the door, and Ross had not returned a call seeking comment as of noon Wednesday.

Public works employees and an inmate work crew dismantled exterior features of the camouflage structure, which was located under a nearby tree.

Neighbors’ dogs barked as a climbing wall was pulled from the side. Investigators removed a paintball gun and a small refrigerator from inside before using a front-end loader to remove the structure from its stilts.

It was loaded on a trailer and hauled from the site.

The search warrant was filed with the district clerk’s office. Investigators on scene declined to comment.

Ross was first elected in 2002. He defeated two-term Democratic incumbent Paul Wood. In 2006, Ross defeated Democrat Kenneth Fuqua.

Wood changed parties and ran against Ross in the 2010 Republican primary. Ross won that election 944 to 862.

The Messenger will post more details as they are available online at WCMessenger.com.

Affidavit, page 1

Affidavit, page 2

Affidavit, page 3

Email Kristen at ktribe@wcmessenger.com. Follow her on Twitter @WCMtribe.

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