Austin American-Statesman

REP. DUKES ASKS JUDGE TO DISMISS 4 CHARGES

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

- By Sean Collins Walsh scwalsh@statesman.com

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.

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