Panhandle DA flips drug fees to charity as hefty ‘donations’
As she campaigned in the northwestern-most corner of the Texas Panhandle last winter, Erin Lands heard a nervous question over and over from local charities: “All the nonprofits were saying, ‘Hey, are you going to continue the program?’ ”
Lands was challenging David Green, the long-serving district attorney of the 69th District, a sparsely populated four-county region that sprawls across an area about twice the size of Delaware. The charities were worried about losing a program Green had started five years ago.
Since then, the pretrial diversion initiative has become a money-printing machine, and Green has embraced the role of community philanthropist doling it out. Records show he has given about $1 million to Meals on Wheels, Safe Place, the YMCA and local school organizations, among others.
“It’s been crucial,” said Shane Nelson, executive director of the Moore County YMCA.
Dumas Independent School District Superintendent Monty Hysinger said the DA has funded needs ranging from high school student organizations to elementary playground equipment. Meals on Wheels director Sheila Hal
tom said, “It always seems to come when we need it the most.”
There’s only one problem: Green’s program appears to violate Texas law. A number of people in the community have known or suspected as much but stayed mum — a testament to how many benefited.
Pretrial diversion gives low-level offenders an opportunity to avoid prosecution in exchange for community service and other conditions. If successful, defendants can avoid the stain of a conviction and have all traces of their arrest erased from the public record.
Green’s version, however, has an unusual feature: To enter, offenders arrested in his jurisdiction must “donate” several thousand dollars to the district attorney’s office, in addition to paying monthly fees. That ignores a Texas statute stating that district attorneys may collect a maximum of $500 from pretrial diversion participants, to be used only to offset the program’s cost.
Panhandle defense lawyers say Green’s initiative is profiting off a state law that treats possession of even small amounts of THC-laced foods such as gummies — cheaply and legally purchased in nearby Colorado — as a potentially life-altering felony. With the drug cases flooding his district, the program has become more and more lucrative, records show.
In 2015, about two dozen offenders paid the district attorney’s office a total of $50,000 to qualify for pretrial diversion. Last year, 100 defendants “donated” $326,000 to participate. Most were required to write a $3,500 cashier’s check, although records show donations as high as $10,000.
Attorneys have questioned the political and social cost of the payments.
Lands said running a campaign against an opponent who has sprinkled a million dollars throughout the community posed an extra challenge. “It’s gotten to the point of, ‘You’ve got to feed the machine, help these organizations,’ ” she said. “It’s this huge thing that’s handing out these checks to all these organizations now expecting it. It’s used as a campaign platform.”
Defense attorneys said the high price of admission into the diversion program is unfair. While those with money can purchase a clean background, those without it earn a criminal record, they said. Several attorneys said they had unsuccessfully asked Green to reduce the donation requirements.
In an interview, Green defended the large cash requirement, saying no one forced defendants to seek pretrial diversion. “It’s voluntary. People don’t have to do this,” he said. “We can just take it through court.”
He has been unsympathetic to defendants claiming poverty. “I have had attorneys claim that their clients couldn’t afford it,” he told the Moore County News-Press last year. “I tell them, ‘You know, if you get an extra job delivering pizzas a couple of nights a week, you could save that money up in two or three months.’ ”
‘Same as murder’
Eric Kohler and a friend were driving home to Hurst, east of Fort Worth, in July 2017 when police pulled them over outside Dalhart for failure to signal while merging. They were returning from Colorado, where they’d legally purchased some cannabis products.
After a drug dog alerted on their car, police found three THC-laced sodas and a vape pen, Kohler and his attorney said. The two were taken to the Dalhart jail, where they spent the weekend before being released on bail.
Based on the weight of the sodas, Kohler eventually was charged with a firstdegree felony — “the same as murder,” noted Adam Tisdell, a Panhandle defense attorney who handles only cannabis cases. A firstdegree felony is punishable by up to life in prison and a $10,000 fine.
The 69th District’s questionable pretrial diversion program is a hidden cost of the growing ambiguities of the war on drugs, which local attorneys and prosecutors say have strained Panhandle courts.
While Texas generally has seen cannabis-related prosecutions plummet in recent years, cases in the state’s northern-most counties have climbed since Colorado’s legalization law took effect in 2014, according to data from the state Office of Court Administration. U.S. 87, the quickest route to the legal dispensaries for Texans, runs directly through Dalhart and Dumas — “our Main Street,” said Moore County Attorney Scott Higginbotham.
Yet even as arrests have increased, changing attitudes toward cannabis use have complicated prosecutions. When Texas legislators legalized hemp last year, few labs performed tests to distinguish illegal marijuana from its now-legal cousin. So prosecutors often must hire expensive private companies if they wish to pursue cases.
State laws that base criminal charges for THC concentrate in edibles or drinks on the product’s total weight — statutes even many prosecutors say are outdated — also tax the system.
“What I got is a whole bunch of kids getting charged for a second-degree felony for a few grams of THC — the size of three Hot Tamale candies,” said Kent Birdsong, county attorney for Oldham County, where U.S. 385 makes a beeline toward Colorado. “They’re just going north to Trinidad for an adventure.”
This month, Rep. Terry Canales, D-Edinburg, a defense attorney, prefiled a bill to treat THC products similar to marijuana plant products. Possession cases involving marijuana plant products typically are charged as misdemeanors. In the meantime, Panhandle prosecutors have struggled to clear their swelling dockets. While several have standard pretrial diversion programs charging only the state-authorized fees, others have gotten creative, using the hammer of felony charges to raise money.
In Oldham County, Birdsong — the county’s only licensed lawyer — said he has made it a practice to automatically plead felony possession cases to two misdemeanors to spare young defendants a permanent criminal record. But the deal is expensive: a $4,000 fine for each misdemeanor, plus a $2,000 contribution to a local charity.
Prosecutors said Birdsong’s program differed from Green’s in several ways. When defendants admit guilt in a plea deal, prosecutors have more flexibility setting conditions, which also are not as proscribed by state law. Offenders themselves also choose from a list of nonprofits and make the donations directly, meaning the DA isn’t assuming the role of community benefactor.
Yet the Oldham County program also uses the threat of a felony charge to wring extra money from offenders. Birdsong acknowledged that nothing in state law specifically said he