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The 3rd Court of Appeals affirmed Senior District Judge Pat Priest’s dismissal of two charges against U.S. Rep. Tom DeLay, R-Sugar Land, but the tone of the court’s April 19 opinion seemed to encourage prosecutors to continue their appeal. Travis County District Attorney Ronnie Earle isn’t saying what he plans to do. In a statement released after the Austin appeals court ruled, Earle said that prosecutors are studying the court’s opinion to determine what course of action they will take. 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. [ See the court's opinion.] 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 Moorea 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 DeLayto 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.
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“The Court of Criminal Appeals may want to revisit its opinion in Baker. But until that time, Bakeris 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. However, Priest has stayed all proceedings in the case until the appeals process is completed. 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. But the cases of DeLay and two political associates, John Colyandro, former executive director of TRMPAC, and Jim Ellis, DeLay’s chief fund-raiser in Washington, D.C., could be stalled until mid-summer. DeLay, Colyandro and Ellis have pleaded not guilty. In an April 19 statement, Priest noted his plans to take a three-week vacation to England and Scandinavia in June. “Ergo, the earliest I expect to be doing anything further in these cases is July 1, or thereabouts,” Priest said.

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