Agree­ment to waive statute of lim­i­ta­tions in­valid, her lawyers say.

Austin American-Statesman - - FRONT PAGE - By Sean Collins Walsh scwalsh@states­

Lawyers for in­dicted state Rep. Dawnna Dukes on Wed­nes­day asked a judge to dis­miss four of the 13 felony charges against her, ar­gu­ing that an agree­ment she signed in Septem­ber to waive the statute of lim­i­ta­tions on those four counts was in­valid for tech­ni­cal rea­sons.

The felony charges of tam­per­ing with pub­lic records re­late to state travel re­im­burse­ment forms in which Dukes, an Austin Demo­crat, sub­mit­ted for days that she al­legedly didn’t travel to the Capi­tol, as re­quired by House rules. (Dukes isn’t re­quest­ing dis­missal of two sep­a­rate mis­de­meanor charges of abuse of of­fi­cial ca­pac­ity.)

Travis County pros­e­cu­tors in Septem­ber were pre­pared to seek a grand jury in­dict­ment against Dukes when her at­tor­ney at the time, Michael Heiskell of Fort Worth, at­tempted to ne­go­ti­ate a deal, As­sis­tant District At­tor­ney Gregg Cox said in court Wed­nes­day.

Be­cause the statute of lim­i­ta­tions, which re­quires pros­e­cu­tors to bring charges within three years of the al­leged of­fenses, was about to ex­pire on four of the al­leged of­fenses, Cox said pros­e­cu­tors in Septem­ber told Dukes’ at­tor­ney they had to move for­ward, lead­ing Dukes’ at­tor­ney to of­fer that she sign an agree­ment waiv­ing the statute.

Dukes’ new at­tor­neys, Dane Ball of Hous­ton and Matthew Shrum of Austin, are now ar­gu­ing that the agree­ment Dukes signed in Septem­ber is in­valid be­cause it doesn’t in­clude a date when the agree­ment ex­pires, which would al­low pros­e­cu­tors to de­lay mov­ing for­ward with a case in­def­i­nitely.

Travis County As­sis­tant District

At­tor­ney Su­san Oswald, how­ever, said it is valid, ar­gu­ing that it was Dukes’ at­tor­ney’s idea and that she had al­ready ben­e­fited from the agree­ment.

State District Judge Brad Ur­ru­tia didn’t rule on the mo­tion Wed­nes­day but ex­pressed skep­ti­cism of the de­fense lawyers’ ar­gu­ment, say­ing that it would al­low de­fen­dants to “thumb their nose” at pros­e­cu­tors.

“Your client cer­tainly de­rived a ben­e­fit, a great ben­e­fit, from sign­ing a waiver,” Ur­ru­tia said to Ball. “You’re ask­ing me to cre­ate new law.”

The max­i­mum penalty for each of the felonies is two years in jail and a $10,000 fine. For the mis­de­meanors, it is one year in jail and a $4,000 fine.

The mis­de­meanors con­cern sep­a­rate al­le­ga­tions: that Dukes took money from her cam­paign ac­count for per­sonal use and that she gave a leg­isla­tive staffer a raise to cover gas money spent while do­ing per­sonal er­rands for Dukes.

Dukes has pre­vi­ously said she plans to plead not guilty on all charges.

The tes­ti­mony from Cox, who un­til this year headed the district at­tor­ney of­fice’s Pub­lic In­tegrity Unit, shed light on Dukes’ de­ci­sion to re­sign from the Leg­is­la­ture, a vow that she later re­neged on. Although Dukes an­nounced in Septem­ber that she was re­sign­ing due to health rea­sons, Cox said Wed­nes­day that she of­fered to do so amid ne­go­ti­a­tions over the crim­i­nal case and asked pros­e­cu­tors not to file charges un­til

af­ter she left of­fice. Ad­di­tion­ally, Cox said that Dukes sought to de­lay her res­ig­na­tion to the be­gin­ning of 2017 to in­crease her pen­sion ben­e­fits from the state.

Those ne­go­ti­a­tions took place dur­ing the ten­ure of for­mer District At­tor­ney Rose­mary Lehm­berg.

Af­ter Mar­garet Moore suc­ceeded Lehm­berg in Jan­uary, Dukes an­nounced that she wouldn’t re­sign as planned and was sworn in to a 12th, two-year term rep­re­sent­ing parts of East Austin, North Austin, Manor and Pflugerville. Moore se­cured the grand jury in­dict­ment a week later.

On Wed­nes­day, Moore told the Amer­i­can-States­man she was

con­fi­dent all of the charges will sur­vive the at­tempt by to Dukes’ lawyers to have them dis­missed.

“I think their mo­tion will be de­nied,” said Moore. “We’re on

solid ground here.” Af­ter Wed­nes­day’s hear­ing, the de­fense lawyers and pros­e­cu­tors spoke with each other in

the emp­ty­ing court­room. “So where do you see this case go­ing? Is this case go­ing to go to trial?” Oswald asked.

Ball said he wasn’t ready to ne­go­ti­ate a res­o­lu­tion to the case but wanted to set up a meet­ing to dis­cuss some­thing re­lated to that is­sue.


State Rep. Dawnna Dukes, D-Austin, waves at some­one as she walks with her at­tor­neys into court on Wed­nes­day. Dukes faces 13 felony charges.

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