Updated Aug. 20, 10 p.m.:
Gov. Rick Perry, who has been using taxpayer dollars to pay his defense lawyers, will tap campaign funds from now on to compensate the attorneys who are fighting his felony indictments, his spokesman said Wednesday night.
Perry spokesman Felix Browne said the governor, who has blasted the indictments as a "farce," did not want to saddle taxpayers with the cost of a wrongful prosecution.
"This is an assault on the Constitution," Browne said. "We don't want it to be an assault on the taxpayers as well."
Perry will use funds in his state campaign account, he said. As of June 30, the account had more than $4 million in it.
State records show taxpayers have spent about $80,000 so far to represent Perry as he faced criminal investigation. He was indicted last week on two felony counts stemming for allegedly abusing his office with a threat to veto funds destined for the state's public integrity unit, which oversees public corruption cases.
Gov. Rick Perry isn’t the only state elected official who has faced criminal indictment in Texas, and he probably won’t be the last.
But he may be the first to require taxpayers to foot the bill for his defense lawyers.
In case after Texas case — involving former attorneys general, state treasurers, speakers and numerous members of the Legislature — elected officials under indictment have paid for lawyers out of their own pockets, from campaign accounts or through legal defense funds, according to people familiar with past cases and published reports.
There is a provision in state law that, based on past legal interpretations, permits reimbursement for the cost of an elected official’s criminal defense after the case is dismissed or the official is exonerated. How far that provision can be stretched isn’t clear. An anticipated opinion from the attorney general's office could clear things up.
In Perry’s case, the office of Texas Comptroller Susan Combs has already authorized $80,000 in government funds to be paid to the firm of one of his criminal defense attorneys, David Botsford — and that was before the governor was indicted last week on two felony counts, records show. The head of his new legal defense team, Houston trial lawyer Tony Buzbee, said this week that the state would pay for some of his defense going forward. But he did not elaborate on how much taxpayers would pay and how much some private entity or defense fund might cover.
Perry spokeswoman Lucy Nashed said the payments are appropriate because the criminal prosecution stems from his role as the state's chief executive.
"This case involved actions that he took in his official capacity as governor under his constitutional veto authority," Nashed said.
Perry was indicted for allegedly abusing his office with a threat to veto funds destined for the state's public integrity unit, which oversees public corruption cases and is housed in the office of the Travis County district attorney. That district attorney, Rosemary Lehmberg, served jail time earlier this year after pleading guilty to a drunken driving charge. Perry says he's innocent and calls the prosecution a "farce."
When it comes to previous criminal prosecutions of elected officials, Texas ethics lawyer Buck Wood, a Democrat who was indicted alongside former House Speaker Billy Clayton in the Brilab affair in the early 1980s, said he knows of no case in which a state politician has used government money to pay his private attorneys.
“There is absolutely no precedent for it,” Wood said. “No one has ever even attempted anything like this.”
“The theory is that there is no state interest in paying for anybody’s criminal defense,” Wood added. “Once he’s indicted, nothing about that defense is in the public interest.”
Wood said both he and Clayton, the former speaker, paid their legal fees with private funds even though both were later acquitted. Later, Wood represented former state Treasurer Warren G. Harding (no relation to the former president with the same name) when he faced criminal prosecution. He said Harding paid his bills with private funds.
Likewise, former Attorney General Jim Mattox paid for his own attorneys after being prosecuted and later acquitted on bribery charges, said former Executive Assistant Deputy Attorney General David Richards. Former U.S. Sen. Kay Bailey Hutchison, exonerated after a failed prosecution that stemmed from her previous elected job as state treasurer, paid her legal bills with private funds, according to her former lawyer, Dick DeGuerin.
DeGuerin, who has been highly critical of the indictment levied against Perry, said he’s not opposed to using taxpayer dollars to pay for Perry's lawyers because “he’s presumed innocent and the indictment says he did what he did while he was governor.”
But where the legal authority lies for pre-payment of legal fees — and whether there's any precedent for it — is not clear.
Payment records available online show the checks cut to Botsford’s firm were paid from the governor’s office for “professional services and fees.” Chris Bryan, a spokesman for the comptroller’s office, said any questions about the legal authority upon which the payments were made should be directed to the governor's office.
“As long as they code it correctly, it gets paid,” he said. “This is sort of a ministerial function for the comptroller’s office.”
In an email, Nashed, the Perry spokeswoman, cited a law related to the hiring of outside counsel — a provision that is typically applied to civil litigation. It says that the governor's office does not have to get pre-approval from the attorney general's office before hiring outside lawyers.
But there could be a conflicting provision in another area of the law.
In a 2000 opinion, former Attorney General John Cornyn, now a U.S. senator, wrote about reimbursement of legal fees incurred by local government officials involved in criminal matters. In the opinion, he referred to a state law, in Chapter 104 of the Civil Practices and Remedies Code, that deals in a similar fashion with public servants in state government.
“The person must be found not guilty after a trial or appeal, or the complaint, information, or indictment must be dismissed without a plea of guilty or nolo contendere being entered and it must have been dismissed because it was based on mistake, false information, or a similar error,” Cornyn wrote. “Thus, section 104.0035 is directed at indemnifying only the innocent public servant for attorney's fees incurred in defending a criminal action.”
The matter ultimately could be decided in an expected legal opinion to be delivered on the subject from Attorney General Greg Abbott, the Republican nominee for governor. State Rep. Joe Deshotel, D-Beaumont, has asked Abbott to clarify whether using taxpayer funds to pay the fees is legal, and Abbott spokesman Jerry Strickland said his office would reply in "due course of law like every other legal opinion."
In an email, Strickland also said Abbott did not give Perry approval to pay the legal fees because the governor’s office “is exempt from having to ask for OAG approval as an executive branch agency established by the Texas Constitution.”
“Attorney General Abbott has not had any discussions with the governor or the governor’s office regarding this matter,” Strickland said. “Prior to the indictment, there were no discussions by either the attorney general or his staff with the governor or his staff about this matter. Since the indictment, there have been discussions at the staff level surrounding legal issues — but at no time has anyone from the AG’s office had any discussions about the merits of any pending opinion with anyone from the governor’s office.”
Democrats have highlighted the taxpayer-funded legal fees in their attacks on both Perry and Abbott.
"Perry should have to cover his legal expenses," said Matt Angle, head of the Democratic Lone Star Project. "It’s extraordinary and indefensible that Greg Abbott and Rick Perry would want taxpayers to pay to both prosecute him and defend him."
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2014/08/20/questions-mount-about-perrys-legal-fees/.