By Penrod, Grant
News Media and the Law , Vol. 27, No. 4
Documents still sought from manhunt for Democratic Texas Representatives
"I guess this is heresy, but this issue is bigger than Texas, and for a Texan, that's a heck of a statement," Rep. Charlie Gonzalez (D-Texas ) told the Austin American-Statesman July 18.
Gonzalez and a number of other Texas Democrats are trying to find out exactly what happened during a statewide manhunt for 51 members of the Texas House of Representatives who left the state in order to break quorum on a controversial redistricting vote. In two lawsuits, Democrats have charged federal authorities with refusing to turn over records relating to the search, and state authorities with illegally destroying documents.
The controversy dates back to 2001. Normally, redistricting for the U.S. House of Representatives is done by state legislatures every 10 years following the census. In 2001, the Texas Legislature was unable to come to an agreement over a redistricting plan, so one was imposed by federal judges. Unhappy with the plan, Texas Republicans, backed by U.S. House majority leader Tom DeLay (R-Texas), introduced a new plan in the regular session of the 2003 Texas legislative session that would have changed the Democrats' 17-15 majority to a 20-12 Republican majority.
In the middle of the night on May 11, 51 Democrats fled the state in order to break quorum on the redistricting vote. Speaker of the House Tom Craddick (R-Midland), using a little known legislative rule, issued special non-criminal warrants for the arrest of the missing Democrats, and the Texas Department of Public Safety (DPS) began a 36-hour hunt.
Most of the Democrats were eventually found in Oklahoma - outside the jurisdiction of the DPS - where they stayed until the legislative session ended May 15. When they returned, the Democrats had a host of questions about the hunt for them.
How involved in the search were key Republican leaders like Craddick, DeLay and Texas Gov. Rick Perry? Were the Texas DPS or the new federal Department of Homeland Security improperly used during a partisan political dispute? What records of the search were made, and where are they now?
Those questions spawned no fewer than five investigations and two lawsuits over what happened during those 36 hours, and the answers remain unclear.
The day before the Democrats were to return to Texas, an e-mail message was sent to captains in the DPS that read: "Any notes, correspondence, photos, etc., that were obtained pursuant to the absconded House of Representative members shall be destroyed immediately. No copies are to be kept." The message, obtained by the Fort Worth Star-Telegram under the Texas Public Information Act, was signed by L.C. "Tony" Marshall of the DPS Special Crimes Service.
DPS spokesman Tom Vinger told the Star-Telegram May 21 that, to the best of his knowledge, all of the documents were destroyed.
Upon their return to Texas, several Democrats filed requests for the documents under the state's Public Information Act. State Rep. Lon Burnam (D-Fort Worth) secured a temporary restraining order preventing further destruction of any documents, and filed a lawsuit against the DPS, Burnam v. Davis, claiming it had illegally destroyed records. A grand jury in Travis County was also convened to look into whether the DPS illegally destroyed the documents, and the Texas House of Representatives began its own investigation.
The DPS claimed that federal law required the records to be destroyed because there was no reasonable suspicion of criminal activity by the Democrats. The documents were "not appropriate for criminal intelligence files," said Marshall Caskey, chief of the DPS Criminal Law Enforcement Division.
Critics cited in the Austin American-Statesman and The Dallas Morning News have pointed out that the federal law only restricts information that police agencies put into shared databases, not what they keep in their own files. …