A letter issued to County Attorney Jenny Dorsey by the senior judge assigned to the lawsuit asking to remove Nueces County District Attorney Mark Gonzalez from office outlines procedures to be used in the suit.
Senior Judge David Peeples was assigned to the suit last week after 319th District Court Judge David Stith and Fifth Administrative Judge Missy Medary both recused themselves.
According to the letter from Peeples, dated January 31, the County Attorney is the proper state official to bring a removal case.
"So before such a suit may proceed, the County Attorney must decide to join the suit and bring it on behalf of the State. If the county attorney does not join and bring this case, it cannot go forward and must be dismissed," the letter states.
Plaintiff Colby Wiltse, who filed the petition seeking the removal of Gonzalez last month, has filed a motion for clarification on the letter sent by Peeples.
"Judge Peeples’ email directed that the County Attorney should “join the suit” or otherwise it would be dismissed, and stated that the County Attorney — not Relator-Plaintiff — must ask the Court to order citation, and cited Local Government Code § 87.016(a)," according to the motion filed by plaintiff attorney Jonathan K. Hullihan.
Chapter 87 of the local government code establishes the process to remove certain county officers; including a district attorney. That process begins with the filing of a petition in district court.
Once a petition is filed, by any resident of the county who has lived in the county for six months, the district court judge assigned to the case must determine if the case has merit. If the case does, the judge then issues a citation and order to appear for a jury trial, according to the statute.
The letter issued by Peeples sets forth a different procedure than the one outlined in the statute, according to Hullihan's motion.
"Conflicting with the instructions provided in Judge Peeples’ email, Texas Local Gov’t Code § 87.016(a) requires that, after a petition for removal is filed, the person filing the petition shall apply to the district judge in writing for an order requiring a citation and a certified copy of the petition to be served on the officer," the motion states.
After a petition for removal is filed, the person filing the petition shall apply to the district judge in writing for an order requiring a citation and a certified copy of the petition to be served on the officer.
The motion by Hullihan argues that under the statute, Wiltse is the proper person to request the issuance of a citation, not the County Attorney.
Hullihan also argues the responsibility of the County Attorney to bring the case, if a citation is issued.
Under state statute, the County Attorney "shall" represent the state in the removal of a District Attorney.
"But Judge Peeples’ emailed instructions state that the County Attorney has some discretion, suggesting the County Attorney may “decide” whether or not to join the suit, and if the County Attorney does not do so, then the case must be dismissed. But this procedure is not described in § 87.108. In fact, the Code appears to state the opposite: that the County Attorney’s prosecution of this case is mandatory, not discretionary. The conflict between Judge Peeples’ emailed instructions and the language of the Code has created confusion and uncertainty for Relator-Plaintiff about what he should do," Hullihan states.
When reached by phone Tuesday afternoon, Dorsey declined to comment on the suit, due to pending litigation.
When asked if she intended to recuse herself, she said he could not comment.
The motion requests Peeples issue a citation and copy of the petition be issued to Gonzalez.
Additionally, it asks for clarification on which procedures will be followed, the procedures outlined in the statute, or the letter issued to the County Attorney.
