On Sept. 6, as they were preparing for their corruption trial against state Rep. Dawnna Dukes, a group of Travis County prosecutors went to the Capitol to meet with witnesses they believed were on their side, an official with knowledge of the case recounted.
The first meeting was with Steve Adrian, the director of the House Business Office who previously had told a state investigator and a prosecutor in separate meetings in 2016 that lawmakers are not allowed to collect travel reimbursement pay between legislative sessions unless they go to their offices in the Capitol. That rule is the basis of a 12-count felony indictment against Dukes that alleges the 12-term Austin Democrat tampered with government records by submitting travel reimbursement forms for days that she did not go to the Capitol in 2013 and 2014.
The second meeting was with Rep. Charlie Geren, a Fort Worth Republican and chairman of the House Administration Committee. The prosecutors assumed Geren would corroborate what Adrian had said about the rules in the past.
After all, the House Policy & Procedure Manual is clear: Lawmakers can claim the reimbursement up to 12 times per month if they travel “to Austin to attend to legislative duties in their office.” State representatives reached by the American-Statesman said they have long understood the rule to mean that they could not collect the pay without going to the Capitol.
But Adrian dropped a bombshell on the prosecutors — saying that, despite the written rule, it is the House’s practice to allow members to take the pay even if they don’t go to their Capitol offices — and Geren backed him up, said the source, who asked not to be identified because the investigation is ongoing. Adrian also revealed to prosecutors for the first time that he had in early 2017 given a statement to Dukes’ attorneys.
The prosecutors were flabbergasted. Dukes, who has pleaded not guilty to the felony charges as well as two misdemeanor corruption charges for unrelated incidents, could now argue in court that she could have collected the $61.50 per day checks even if she didn’t go to the Capitol and that the state consequently didn’t lose any money if she lied on the forms, which is often a successful defense against charges of tampering with government records.
Adrian’s reversal was the latest twist in the two-year saga of the Dukes case that has seen the veteran lawmaker make and break a deal with prosecutors, promise to leave office and then renege on that promise and win re-election with more than 70 percent of the vote as a Texas Rangers investigation loomed over her.
Reeling from the Adrian revelation, prosecutors asked for a delay in the felony case and were instructed by a judge to decide whether they are going to “fish or cut bait” by Oct. 30. If they move forward, the trial will begin in December.
Shaun Clarke, an attorney for Dukes, said that prosecutors should drop the charges because of the ambiguity.
“You can’t make a criminal case when the rules aren’t clear,” Clarke said. “Criminal cases should be reserved for those situations where there is a clear and intentional violation of the law.”
Although they no longer planned to call him as a witness if there is a trial, prosecutors took Adrian before a grand jury to probe him on his apparent about-face.
Adrian did not return a request for comment. The district attorney’s office declined to comment.
In an interview, Geren said that the House gives lawmakers significant leeway to interpret the rule.
“That’s always been the case,” he said.
Geren said that he personally would not collect reimbursement for traveling to a lunch in Fort Worth with constituents but that lawmakers can and do collect the pay if they do legislative work in Austin, even if they’re not at the Capitol. About half of Dukes’ district is in Austin.
Geren declined to comment on whether Dukes ran afoul of the rules, saying he’s not a lawyer. Geren said he did not coordinate with Adrian on their interpretations of the rule.
3 lawmakers have different reading
Lawmakers reached by the American-Statesman gave a different account of when the House allows them to collect the travel pay.
“It was just the general understanding that it was intended to be for work at the Capitol,” Rep. Tony Dale, R-Cedar Park, said. “I thought it was pretty clear. … I thought you had to go to your office and work there.”
Rep. Donna Howard, D-Austin, said that she does not believe the rule covers work done outside the Capitol.
“I’ve read the rule,” Howard said. “It says business in your office, so my assumption was it means business in your office.”
One instance Geren cited to prosecutors in which lawmakers could collect the pay without going to the Capitol was for those who have large rural districts and need to travel great distances.
Rep. Alfonso “Poncho” Nevárez, an Eagle Pass Democrat whose massive West Texas district is the largest in the state, said that he does not believe that the travel pay, which lawmakers call per diem, could be used for in-district travel. Other forms of reimbursement, like for mileage, cover that, he said.
“The per diem is earned the way we earn it in the regular session — by being there,” he said of the travel reimbursement, which lawmakers are paid automatically during legislative sessions under the assumption that they are at the Capitol.
The inquiry into Dukes began when former staffers raised questions about her conduct, prompting an investigation by the State Auditor’s Office that was soon turned over to the Texas Rangers and the Travis County district attorney’s office.
One of the ex-staffers told the Statesman last year that the lawmaker did not travel to the Capitol for all of the days that she claimed but directed her staff to prepare the forms as if she did.
Dukes specified on the reimbursement forms, which the Statesman obtained through an open records request, that she “traveled by personal car to the Capitol” to attend to legislative duties.
Dukes, according to the grand jury indictment, made “a false entry in a government record, and present and use said government record with knowledge of its falsity, by instructing her staff to add a false entry to her State of Texas Travel Voucher Form.”
The felony counts — one of which has been dropped due to a clerical error by investigators — each carry maximum of sentences of up to two years in prison, while the misdemeanors are up to one year.