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Overruling an appeal by Travis County District Attorney Ronnie Earle, the 3rd Court of Appeals has affirmed Senior District Judge Pat Priest’s decision to dismiss two charges against U.S. Rep. Tom DeLay, R-Sugar Land. In December 2005, Priest quashed indictments against DeLay that alleged he conspired to violate the Texas Election Code on the grounds that such an offense did not exist at the time of the alleged violation. A Travis County grand jury handed up those indictments in September 2005, forcing DeLay to step down as majority leader in the U.S. House of Representatives. According to the 3rd Court’s April 19 opinion, the Texas Legislature amended the Election Code in 2003 to incorporate a conspiracy offense. But the state cannot rely on that amendment because DeLay is charged with conduct that took place prior to its enactment, 3rd Court Justice Bea Ann Smith wrote for the three-justice panel that decided State v. DeLay. The Election Code conspiracy charges stemmed from how the DeLay-founded Texans for a Republican Majority Public Action Committee (TRMPAC) used corporate contributions in the 2002 election cycle. Although the state argued that conspiracy to violate the Election Code has always been an offense and that the 2003 amendment merely clarified the law, Austin’s 3rd Court is bound by controlling precedent that limits the applicability of the Penal Code’s conspiracy provision to offenses found in the Penal Code, Smith wrote in the opinion. In 1976′s Moore v. State, the CCA reversed a man’s conviction for attempting to obtain a controlled substance by fraud. The CCA held that the general attempt provision in the Penal Code could not be applied to offenses under the Controlled Substances Act. The CCA expanded its decision in Moore a year later. In 1977′s Baker v. State, the court held that the conspiracy provision of the Penal Code did not apply to offenses defined in laws other than the Penal Code. The state urged the 3rd Court in DeLay to re-examine the “deficient precedent” in Moore and Baker. Smith wrote that the “state’s criticism of Moore and Baker is well taken,” but the 3rd Court lacks authority to overrule a CCA decision. “The Court of Criminal Appeals may want to revisit its opinion in Baker. But until that time, Baker is the law and we are not free to disregard it,” Smith wrote. Justices David Puryear and Alan Waldrop joined in the decision. DeLay still faces trial on charges of money laundering and conspiracy to commit money laundering in connection with TRMPAC’s alleged use of $90,000 in corporate funds. As alleged in the indictment, TRMPAC funneled the corporate money through two national Republican committees, which sent checks to seven Republican candidates for the Texas House in 2002. A Travis County grand jury returned indictments on those charges in October 2005. DeLay has pleaded not guilty. However, Priest has stayed all proceedings in the case until the appeals process is completed. Earle did not immediately return a telephone call seeking comment. Dick DeGuerin, DeLay’s attorney and a partner in Houston’s DeGuerin, Dickson & Hennessy, says he expects Earle to file a petition for discretionary review with the CCA. “The name of the game is to extend Tom DeLay’s legal problems as long as possible,” DeGuerin contends. But DeGuerin says there is no time crunch now that DeLay has ended his campaign for re-election. DeGuerin says the next step in DeLay’s defense will be to file a petition for writ of habeas corpus with Priest to challenge the remaining indictments on the grounds that they do not charge an offense under Texas law. The habeas proceeding will be a new proceeding that should not be governed by the stay, he says.

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