Indicted state Rep. Dawnna Dukes has delayed her trial on public corruption charges until after the legislative session by invoking a privilege typically used by lawmakers who are attorneys and need to pause their clients’ cases while serving in the Legislature, according to Don Clemmer, a prosecutor in Dukes’ case.
Legislative continuance, as the privilege is called in state law, is intended to ensure that clients of lawmakers aren’t neglected while their attorneys are busy making laws. Dukes, however, is a defendant, not an attorney, and she hasn’t been particularly busy at the Capitol, where she has been absent for 39 of the first 64 days the House has met this year.
While the Austin Democrat’s use of legislative continuance appears to be legal, ethics watchdogs and other lawmakers say she is misusing the privilege.
“It was intended to protect your clients’ ability to choose their counsel. It was intended to protect the separation of powers between the legislative and judicial branches. It wasn’t intended to bail out legislators who are accused of felonies,” state Rep. Matt Rinaldi, an Irving Republican and attorney, said of legislative continuance.
Dukes declined an interview request. Her lawyer, Dane Ball, said in a text message, “The continuance was proper, agreed to by the state, and approved by the judge.”
Now in her 12th term representing parts of East Austin, Pflugerville and Manor, Dukes faces two misdemeanor charges of abuse of official capacity and 13 charges of felony tampering with public records. The maximum penalty for the charges is 28 years in prison and $138,000 in fines.
The 13 felony counts relate to paperwork Dukes signed to request pay for days when the Legislature wasn’t in session. Dukes indicated on the forms that she worked at the Capitol those days, which is required to receive payment, but the indictments allege she wasn’t there.
The misdemeanors stem from two separate incidents. In one, Dukes allegedly gave a raise to a legislative staffer to cover gas money for driving Dukes’ daughter to school. In the other, Dukes allegedly deposited into her personal account two checks from the African American Community Heritage Festival, a nonprofit annual event she co-founded 18 years ago, that should have been deposited in her campaign account for reimbursement.
Dukes has said she is innocent of all the charges.
Clemmer, a Travis County assistant district attorney and former state district judge, said the case won’t proceed until a hearing June 30.
“Rep. Dukes has an absolute right by law to a continuance of any court settings until after the legislative session has been concluded,” Clemmer said. “She has elected to exercise that right, leaving the court no alternative but to continue the case until the June 30 setting.”
Dukes’ trial would have likely begun months ago had it not been for her attempted negotiations with prosecutors during the tenure of former Travis County District Attorney Rosemary Lehmberg, who left office in January.
Prosecutors were ready to bring the case to a grand jury in September. Dukes then offered to leave office in January and asked for the case to be delayed until then.
After new District Attorney Margaret Moore took office, Dukes reneged on her promise to step down and was sworn in to a new term. Prosecutors secured a grand jury indictment a week later, days after the start of the legislative session.
A pretrial hearing scheduled for Tuesday was postponed until after the Legislature finishes its current session at the end of the month. If Gov. Greg Abbott were to call a special session, Dukes could exercise legislative continuance again.
In addition to missing nearly two out of every three days the House has met since the beginning of the session, Dukes has been absent for 26 of the first 33 meetings of the committees she sits on, according to Texas House records.
When she has sought to be officially excused from proceedings on the House floor, the reason she typically gives is “important business in the district.” She has also cited “medical issues,” “illness in the family” and “storm damage.”
In 2015, she missed 84 percent of House votes, as well as 44 out of 50 committee meetings, and blamed her absences on the lingering effects of a 2013 car crash.
Medical issues might again be a factor this year. Dukes typically uses a walker at the Capitol, and in a March 29 meeting of the House Appropriations Committee, she showed up late and, after posing a rambling question, referred to medication she was on.
“I know I’m talking a lot. I’m full of morphine and will be headed out of here soon,” she said.
Appropriations Committee Chairman John Zerwas, R-Richmond, has said that while Dukes has missed many meetings, she has contributed to the committee’s work remotely.
Over the years, lawmakers have abused the privilege of legislative continuance by offering prospective corporate clients an opportunity to delay their cases, said Craig McDonald, director of the left-leaning Texans for Public Justice, which has sued lawmakers in the past to force them to disclose their continuances. In some cases, the lawmakers had little or no experience in the type of law involved in the case and appeared to be hired for the sole purpose of delaying a trial.
McDonald said he has never heard of a lawmaker who is a defendant in a criminal case invoking the privilege, adding that it is an “insult” to the law’s purpose.
“The privilege is to protect the public’s interest, not a lawmaker’s,” he said.
The strategy, however, appears to be legally sound. The Texas Civil Practices and Remedies Code says that judges must delay all civil and criminal cases “in which a party applying for the continuance or the attorney for that party is a member or member-elect of the Legislature and will be or is attending a legislative session.”
McDonald said one reason the law includes parties to cases, and not just lawyers, might have to do with one of the original motivations for creating the privilege in 1929: to stop political opponents of lawmakers who live far from Austin from slapping lawsuits on them shortly before the legislative session, preventing them from casting votes at the Capitol.