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Hidalgo Ethics Penalty Could Be Precursor to Eventual Removal

Texas Local Government Code Requires Removal Upon Conviction of “Official Misconduct”

As first reported yesterday by The Texas Voice, Democratic Harris County Judge Lina Hidalgo was ordered by the Texas Ethics Commission to pay a $500 penalty for misusing government resources for political purposes. In its order, the Texas Ethics Commission determined that “credible evidence” established that Hidalgo violated Section 255.003(a) of the Texas Election Code when she had her staff “schedule, stage, and produce” a press conference at a County building. This statute prohibits the use of public funds for political advertising. 

During the press conference, Hidalgo attacked Harris County District Attorney Kim Ogg and endorsed Ogg’s opponent in the Democratic Primary. A video of the press conference was live-streamed on Hidalgo’s social media pages, and a recording was posted on the social media pages afterward. The video was subsequently deleted from these social media accounts. 

The Texas Ethics Commission only has the ability under Texas law to impose monetary penalties and does not have the power to bring criminal charges. Criminal investigations and prosecutions are left up to law enforcement agencies and prosecutors. Additionally, the Texas Ethics Commission only has jurisdiction to impose penalties involving violations of a narrow set of laws. 

Violations of the statute that the Texas Ethics Commission found “credible evidence” of Hidalgo violating also constitute Class A misdemeanor criminal offenses. Hidalgo’s conduct in connection with the press conference could also potentially violate Section 39.02 of the Texas Penal Code, the state’s “Abuse of Official Capacity” statute. 

Under this law, “A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1)  violates a law relating to the public servant’s office or employment;  or (2)  misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

The classification of criminal offenses under the Abuse of Official Capacity statute varies depending on the monetary value of “the use of the thing misused.” Unlike Section 255.003 of the Texas Election Code, the Texas Ethics Commission does not have jurisdiction to enforce Section 39.02 of the Texas Penal Code. 

Chapter 87 of the Texas Local Government Code provides a process for removing county officers, including a County Judge, from office. One of the grounds for removal is “official misconduct,” which is defined as “intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law.”

One method for removing a county official involves petitioning a district court in the county where the official resides. While such a petition may be brought by a resident of the county, the County Attorney is tasked with representing the state in the removal action. The current Harris County Attorney, Christian Menefee, is a Democrat who shares many political allies with Hidalgo. This makes it unlikely that any attempt to remove Hidalgo by such a petition would be successful. 

However, Hidalgo’s conduct is currently under criminal investigation by the Texas Rangers. The order issued by the Texas Ethics Commission outlines, in great detail, the “credible evidence” of Hidalgo’s violation of the law. Should the Texas Rangers’ investigation reach the same conclusion and criminal charges be brought against Hidalgo, she would be at risk for removal from her position. 

Section 87.031 of the Texas Local Government Code states, “The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer.”

In a paper entitled “Don’t Do It, Even If It Feels Good: Problem Areas with Potential to Cost You Credibility or Your Job,” Potter County Attorney Scott Brumley discussed various ways county officials could face removal from office. In one section discussing criminal convictions for “official misconduct,” Brumley states, “The Texas Court of Criminal Appeals” apparently accepts that a violation of section 39.02 of the Penal Code, entitled “Abuse of Official Capacity,” constitutes official misconduct so that a conviction under that provision operates as a removal from office.” Should Hidalgo be convicted of a criminal offense related to abuse of her office or misuse of government resources she had access to or control over due to her position as Harris County Judge; it is likely such a conviction would constitute “official misconduct” that would trigger her automatic removal from office. 

Hidalgo has denied any wrongdoing. In a statement posted to her Twitter account, Hidalgo said, “At a press conference last November, I responded to false allegations against my office, as it is part of my job to defend the integrity of my office. The Commission asked for a $500 penalty after recognizing the situation was a minimal issue. I am confident that everything I did and said was appropriate, but rather than spending many thousands of dollars and precious time, we agreed to a minimal settlement so that I can focus my energy on the needs of Harris County.”

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