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The Austin Court of Appeals is scheduled to hear oral argument Wednesday in State v. DeLay. The specific question before the court is whether conspiracy to violate a criminal provision of the Texas Election Code was a crime prior to 2003.
This case involves the alleged illegal use of corporate funds during the 2002 campaign. According to the indictment, on or about September 10, 2002, a certain check was sent to the Republican National State Elections Committee (“RNSEC”) by Texans for a Republican Majority PAC (“TRMPAC”). John Colyandro, TRMPAC’s executive director, signed the check. The check was made payable to RNSEC in the amount of $190,000. The indictment states that this check was sent to RNSEC via Jim Ellis, who was the executive director of Americans for a Republican Majority PAC (“ARMPAC”). Colyandro and Ellis are also defendants in this case. TRMPAC presumably received these particular funds directly from several corporations. (A prior indictment alleged that TRMPAC had accepted contributions from several corporations.)
The indictment further states that on or about October 4, 2002, RNSEC sent seven checks to seven different Republican candidates for the Texas House of Representatives. The amount of each check varied, but the sum of the seven checks was $190,000.
Under Texas law, it is illegal to use corporate money for individual political campaigns. Further, corporations are prohibited from contributing to political parties. The law creates an exception allowing a corporation to contribute money to a political party for administrative expenses, but this exception does not apply during the 60-day period preceding a general election. These provisions are contained in Subchapter D of Chapter 253 of the Texas Election Code. A violation of these provisions is a third degree felony.
The indictment charges DeLay, Colyandro and Ellis with conspiracy to violate Subchapter D of Chapter 253 of the Texas Election Code, and with conspiracy to commit money laundering. The indictment contains a second count charging each defendant with money laundering.
DeLay filed a motion to quash the indictment. State District Judge Pat Priest dismissed the conspiracy charge insofar as it alleged a conspiracy to violate the election code. Judge Priest otherwise denied DeLay’s motion. The State (through Travis County DA Ronnie Earle) appealed the dismissal.
The basic question is whether the criminal conspiracy statute, which is part of Title 4 of the Texas Penal Code, applied to Election Code offenses in 2002, when the events underlying this case occurred. (In 2003, the Texas Legislature amended the Election Code to provide that Title 4 of the Penal Code applied to Election Code offenses.)
Section 15.02 of the Penal Code states that:
(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.
In Texas, most criminal offenses are listed and defined by the Penal Code. Some crimes, however, are defined in other codes. For example, the Texas Transportation Code contains the relevant statutes concerning the crimes of driving with a suspended license and failure to stop and render aid. Further, the Texas Health and Safety Code contains the Texas Controlled Substances Act, which contains the State’s criminal laws related to the possession, manufacture, and/or delivery of illegal drugs. Clearly, section 15.02 would apply to a conspiracy to commit any felony offense that is part of the Penal Code. Would 15.02 apply to a conspiracy to commit a felony that is defined by a separate code?
DeLay’s lawyers cite Baker v. State in support of the contention that the criminal conspiracy statute did not apply to the Election Code prior to 2003. In Baker, the Texas Court of Criminal Appeals ruled that section 15.02 did not apply to the Controlled Substances Act. The defendant in that case had been charged and convicted of “conspiracy to sell marihuana.” The court noted that section 1.03(b) of the Penal Code provides that Titles 1, 2 and 3 of the Penal Code (which contain definitions and other general provisions) apply to offenses defined by other laws. The Penal Code, however, does not expressly provide that Title 4, which contains the conspiracy statute, applies to offenses defined by other laws. This appears to be the basis of the Baker opinion.
Baker may not be directly on point, since it deals with the Controlled Substances Act and not the Election Code, but from DeLay’s point of view, it provides a solid analogy. The same reasoning would seem to apply. Thus, even though it was a crime in 2002 to conspire to commit a felony, and even though it was a felony in 2002 to violate Subchapter D of Chapter 253 of the Election Code, case law supports the view that it was not a crime in 2002 to conspire to commit a violation of the Election Code.
I’m generally loath to predict how a court will rule in a case, but I won’t be surprised if the court of appeals affirms Judge Priest’s ruling. We still have the money laundering charges, however, and those charges carry a greater range of punishment.
The Houston Chronicle has various documents related to this case here.
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