New ally in pursuit of DeLay

Web Posted: 08/01/2007 08:32 PM CDT

R.G. Ratcliffe
Houston Chronicle Austin Bureau

AUSTIN — In an unusual move, the state prosecuting attorney has joined Travis County prosecutors in asking the Texas Court of Criminal Appeals to reverse itself and reinstate an indictment against former U.S. Rep. Tom DeLay, R-Sugar Land.

State Prosecuting Attorney Jeffrey Van Horn filed a friend of the court brief saying the court erred in not upholding a conspiracy indictment against DeLay.

Van Horn, holding a position appointed by the Court of Criminal Appeals, usually represents the state in appeals brought from counties with smaller, understaffed district attorney's offices.

He said it's unusual for the appeals court to grant rehearings once it has decided a case.

"It's a matter that they've considered and made a record over, so it's naturally difficult to get the court to grant a rehearing," Van Horn said.

DeLay's lawyer, Dick DeGuerin of Houston, was unavailable for comment.

In a 5-4 ruling in June, the state's highest appeals court for criminal cases refused to reverse a district judge's decision to throw out an indictment against DeLay accusing him of conspiracy to violate the Election Code.

To rule against DeLay would have required the court to overturn decisions that had been issued in 1976 and '77 regarding how the state's conspiracy law applied to other statutes.

A lower court, the Third Court of Appeals, had agreed with arguments by Travis County District Attorney Ronnie Earle that the earlier rulings misinterpreted the conspiracy statute. But that court said only the Court of Criminal Appeals could reverse the decisions.

After considering the case for 13 months, the Court of Criminal Appeals, whose justices are all Republicans, shot Earle down on the narrow vote.

Two of the judges who ruled against Earle said they did so because the earlier case law was what existed at the time of DeLay's alleged crime.

That shouldn't matter in this case, Van Horn told the court, because conspiracy requires the people involved to commit a felony, not just a conspiracy. If DeLay and two co-defendants knew their actions violated the felony code, Van Horn said, then the conspiracy statute should also apply.

In an interview, Van Horn said he gave the court a brief in support of Earle's request for a rehearing because the ruling would affect many areas of criminal law.

He said under the court's ruling, the conspiracy statute will apply only to crimes that have been specifically designated by the Legislature as having a conspiracy element.

DeLay and two associates, John Colyandro and Jim Ellis, were accused of using a political action committee, Texans for a Republican Majority, to illegally spend corporate money on 2002 Texas House races. DeLay has claimed Earle's prosecution of the case is politically motivated.

State District Judge Pat Priest of San Antonio threw out a conspiracy to violate the Election Code indictment in December 2005 on grounds that the Legislature did not apply the conspiracy statute to the election law until a year after the alleged crimes.

Priest upheld indictments against the men alleging money laundering and conspiracy to commit money laundering that stem from how $190,000 in corporate money was sent to the Republican National Committee en route to legislative candidates.

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