The Law West of the Pecos

Midland

On a sunny afternoon in October, Alpine Avalanche reporter Ian Talley found himself riding in an army surplus jeep through thick brush country on a private ranch in Brewster County, about 30 miles north of Big Bend National Park. For three weeks, the isolated piece of range owned by Midland County Sheriff’s Captain Clayton McKinney had played host to McKinney’s special project: the Sheriffs of Texas Agreed Response, or STAR, a tactical unit comprised of deputies from up to sixty Texas counties.

All week, the group had been training for an open-air drug bust in the backcountry, the type of operation the Border Patrol frequently carries out in the Big Bend. Decked out like national guardsmen, many with painted faces and combat fatigues, the men drilled with automatic weapons, heavy military trucks, jeeps, and an armored personnel carrier. Now Talley was riding along with the “bad guys” — toward the ambush McKinney had set up for them.

“They all went into the brush with their camouflage gear and their knives and their paintball guns,” Talley recalls. “And all of the sudden people came out of nowhere. They knew who I was and what I was doing there, but I put my hands up just to act like I was a bad guy.” He must have played his part too well. “They opened up the car door, threw me on the ground, and stood on me for about five minutes,” Talley said. In a real drug bust, it could have been worse. “When I stood back up, I looked where my head was in the back window and there was a paintball [splat] there. I said, ‘You guys saw me put my hands up.’ And one of the kids said, ‘Well, you know in a situation like that we have to take out everybody.'”

Talley’s brush with STAR left him disconcerted (although unscathed). But others have questioned STAR’s operation in far West Texas. In a region crisscrossed by counter-drug patrols from no fewer than five separate law enforcement agencies, officials from several regional authorities — including the Border Patrol and current and former county officials from the Big Bend area — are skeptical about the methods and motives of the newest posse to arrive on the scene. According to Clayton McKinney, and his boss, Midland County Sheriff Gary Painter, STAR is an “emergency response team,” not a drug interdiction squad. Yet STAR has remained shrouded in secrecy, both in Midland and on the border. At least one border sheriff has confirmed that STAR deputies took part in a drug interdiction operation on the border, without informing local authorities or the Border Patrol.

How did STAR move from fighting oil field terrorism and assisting victims of tornadoes, as Painter described its mission to The Houston Chronicle in 1998, to clandestine drug-interdiction operations? The answer may have something to do with the aspirations of Midland County Sheriff Gary Painter. Since his election in 1985, the Drug War has been Painter’s driving motivation and very nearly his downfall. No Texas law enforcement agency embraced the Reagan-Bush War on Drugs with more enthusiasm than the Midland County sheriff’s office, which took advantage of the generous federal grants disbursed through the governor’s criminal justice division to create a multi-jurisdictional counter-drug task force. Other law enforcement officials used the federal money to organize regional drug task forces, but Painter’s Permian Basin Drug Task Force was the biggest, covering a fifteen-county swath of the Trans-Pecos from Andrews to the border. It was also the most controversial. Along with the drug busts that made Gary Painter a star on the local evening news, came persistent questions about corruption: theft of confiscated drug money, missing evidence from the drug vault, political payoffs. A 1991 grand jury investigation resulted in indictments against Hal Upchurch, a D.A. in Ward County who worked closely with the task force, and Ronald Tucker, one of Painter’s many “temporary deputies,” underworld operatives who helped him make drug cases across the state.

Then, in June of 1998, after a lengthy investigation by state and federal authorities of allegations ranging from evidence tampering and fraudulent reports to bribery and theft, the governor’s office cut off funds to the Permian Basin task force. Despite the investigation, no indictments were returned by an Odessa grand jury. Now, less than eighteen months later, Painter is back in the drug interdiction business. Following the breakup of the Permian Basin force, Governor Bush commissioned a new, D.P.S.-led task force based in Odessa. Most of the surrounding sheriff’s offices joined, but not Midland County. Instead, Painter mustered a new posse from the remains of his old one, renaming it the Trans-Pecos Drug Task Force. Rather than establish the task force at home in Midland, Painter set it up in Pecos, where Clayton McKinney’s son is chief of police. (Because Painter decided to go it alone, jurisdiction of the D.P.S.-directed West Texas Drug Task Force resembles a doughnut with a conspicuous hole in the middle, where Midland County should be.)

Although his new operation is much smaller than his previous force, through the formation of STAR, Painter has extended his reach into counties — such as Presidio and Brewster — that refused to join his new task force. Back in Midland, however, STAR has become a controversial issue. Painter has been accused of butting into West Texas towns where he is not wanted, sinking money into an expensive fleet of military vehicles he maintains for his part-time army, and neglecting county taxpayers at home. Painter’s opponent in the upcoming Republican primary election is using these issues in the early stages of a campaign against Painter, and unless he can pull off one more narrow escape, the last Wyatt Earp in West Texas may be turning in his star next year.

Posse Justice

STAR was born in the wake of the April 1997 Republic of Texas standoff in Fort Davis, where West Texas right-wing militia leader Richard McLaren held two of his neighbors hostage for several days in a Davis Mountains trailer park before giving himself up to state troopers. Coordinated law enforcement response to the Republic of Texas standoff was slow even by the standards of West Texas, where counties are so large that sheriff’s deputies and highway patrolmen are often spread across long, lonely stretches of highways and backroads. Federal and state authorities quarreled about who would direct the response, with the state police eventually taking charge.

Watching the standoff at Fort Davis, Painter realized that West Texas sheriffs needed to coordinate their responses to emergencies. His idea of a coordinated response team was STAR, a sort of National Guard for sheriff’s deputies. “If I had a situation here [Midland], a terrorist attack on the oil fields, or a tornado, all I have to do is call, and my citizens would get the help they need,” Painter told The Houston Chronicle. STAR started to grow in the summer of 1998, when Painter convinced dozens of counties to come on board with the promise that it wouldn’t cost them a dime to participate. Sheriffs who join dedicate one deputy to the unit for periodic training excursions, and provide whatever heavy equipment they have at their disposal. Last summer, the group received a $10,000 training grant from the governor’s criminal justice division.

Even skeptical officials in the region concede that a response team could be useful if it brought together the resources of a number of county sheriff’s offices. STAR deputies, for example, assisted Del Rio authorities during the devastating 1998 summer floods. But the group is doing more than training for tornadoes and terrorists. STAR commander Clayton McKinney declined to be interviewed for this story, and Sheriff Painter also refused to talk to the Observer. But according to Presidio County Sheriff Danny Domínguez, last fall STAR conducted a three-day drug-surveillance-and-interdiction operation on the border in his county. Domínguez, a STAR member, had invited McKinney and his men to come to the border, but failed to inform his own county judge. Still reeling from the shooting of Redford teenager Ezequiel Hernández by U.S. Marines on a counter-drug patrol in 1997, then-County Judge Jake Brisbin objected. “I’m always concerned when you take a bunch of city boys and put ’em in a very rural environment, and they have guns with them, and they have to interact with people that are coming from a different world,” said Brisbin, who now directs the El Paso Council of Governments. “I felt a whole lot more comfortable with local law enforcement officers — whether they were Border Patrol, D.E.A., customs agents, sheriffs, or the police department in Presidio County — interdicting citizens and non-citizens, than I ever would be with a bunch of weekend warriors from Midland.”

Yet there was little the commissioners could do to keep the deputies out. Nor did STAR inform the Border Patrol of where and when the operation would take place, prompting complaints from the Marfa sector chief. Current Acting Chief Rudy Rodríguez said the group has returned to his sector at least twice since that time, on one occasion showing up unannounced on the Border Patrol’s outdoor firing range near the Marfa airport. “It surprised the hell out of us,” Rodríguez said. “We’re on the border 99.9 percent of the time, in the brush, in the mountains, and everywhere else. When we run across someone in camo, and armed, we take a defensive posture right away, and that’s what we want to avoid: a blue-on-blue [cop-on-cop] situation.” Rodríguez said he doesn’t even know why STAR is training on the border: “That’s never been explained to us, it’s a big mystery.” Midland deputy Rory McKinney (son of Clayton), who serves as S.W.A.T. Commander for STAR, denied that a rift exists between STAR and the Border Patrol. He says STAR trained on the border (he estimates that half of the roughly ten trainings had taken place on the border) “for the terrain,” and not for drug interdiction opportunities, although he conceded that STAR had done a surveillance in Presidio County, and had helped execute a search warrant in Monahans. Despite McKinney’s claims otherwise, communication with the Border Patrol has not improved, according to Rodríguez. Rodríguez found out about the recent Brewster County operation when he read about it in the Alpine newspaper. Brewster County Judge Val Beard only heard about the operation when she tried to locate one of her deputy sheriffs, whose father had passed away. Beard discovered the deputy was out in the backcountry with McKinney and his men.

Both Brisbin and Beard have long been concerned about Painter’s men operating in the border counties. “My response was Presidio County is our jurisdiction and Midland county is his, and I think that’s what the people of those respective counties voted to have happen,” Brisbin said. “We didn’t participate in the Permian Basin force because of their reputation,” said Beard, who disagrees with the fundamental principle of the Drug War: self-financing law enforcement. Even Beard’s county sheriff, Steve Whitley, who is a member of STAR, wanted nothing to do with the Permian Basin task force. In fact, Whitley said he was unaware that STAR had entered the drug interdiction trade.

As it has across the nation, the Drug War changed law enforcement in West Texas. After Ronald Reagan announced that drug interdiction would be his major domestic policy initiative, Washington began to demand quantifiable results, which meant increased drug seizures. In 1984, Congress radically revised civil forfeiture law, to allow law enforcement agencies to keep money and assets seized in drug busts. Suddenly the drug war was a source of revenue, and almost overnight the D.E.A. became self-financing. The federal government seized over $1.5 billion in assets between 1985 and 1991. In Bill Clinton’s first term, that amount almost doubled. The Justice Department invited the involvement by “S&Ls” — sheriffs and locals — by cutting them in on the action. If state or local officials hooked up with a U.S. attorney, any local bust could be “federalized,” allowing 80 percent of the profits to come back to the local police or sheriff’s department. In 1989, the Texas Legislature did its part, rewriting state forfeiture laws to allow a greater percentage of seized money and assets to go directly into law enforcement agency budgets, rather than city or county general revenue funds. Add to this the incentive of federal task force grant money — which required a 25 percent match from the locals, which was often raised from seized assets — and the race to confiscate began in earnest.

Priorities became skewed, recalls Frank Brown, who for eight years served as the prosecuting attorney for cases made by the Rio Concho Drug Task Force, based in San Angelo. “I’m proud to say we were the only task force in the state that didn’t have a [drug-sniffing] dog in a car stopping every car on the highway,” he said. For years, Brown advised his agents not to make unconstitutional stops, despite the overwhelming incentive to do so, and the increasingly commonplace occurrence of such stops in other parts of West Texas. When the Texas Court of Criminal Appeals ruled in 1995 that drug arrests stemming from traffic stops made without probable cause were not necessarily invalid, Brown got out of the business, moving to Alpine to become a defense attorney. The ruling, he believed, was another incentive for law enforcement officials to violate basic civil rights. “I always thought it would be an interesting experiment to put a black man in a brand new Corvette with Miami plates, and have him drive from Beaumont to El Paso,” Brown said. “It’d take him six months.”

Painter, who early in his career served as a deputy under the Big Bend’s most infamous drug casualty — Presidio County Sheriff Rick Thompson (now serving life after a 1991 conviction for possession of a horse trailer full of uncut cocaine) — has been run out of the Big Bend before. Presidio County belonged to the Permian Basin task force for about two years, but declined to join Painter’s new force. (They also turned down the D.P.S.-led force.) According to Presidio County Attorney Teresa Todd, the task force had never been particularly active in the county. The one extended sting operation she recalls resulted in a handful of fourth-degree felony charges, which at that time generally meant probation for first-time offenders. County Commissioner Felipe Cordero recalls that Presidio County’s principal contribution was to provide jail beds for task force arrestees in the Big Bend. “The county that sponsored the task force takes the cake, and we end up housing and feeding the prisoners,” said Cordero. “We’re one of the poorest counties in the state.” When a long car chase started by a task force officer ended with a Presidio County deputy shooting the driver as he tried to run through a roadblock, the county with one of the smallest budgets in Texas was required to pay $26,000 for the shooting victim’s surgery, and Presidio County’s relationship with the Task Force grew worse. For months, Teresa Todd tried to get Finley and the task force to assume responsibility for the incident. After ignoring Todd’s letters requesting him to appear before the Commissioners Court, Finley finally paid half of the medical bill. The man was later convicted at trial, precluding what might have been an even costlier lawsuit against the county. But the incident convinced county officials that Painter’s task force was a liability it could not afford, and Presidio County opted out of the task force.

Through fourteen years and four elections, Gary Painter has depended upon the region’s underground drug economy to keep him in office and fund his operations. Painter has outfoxed or outlasted enemies in his own county Commissioners Court, the governor’s office, and federal authorities. At times, Painter’s operations have seemed more like public relations stunts than actual arrests. In one case he claimed to have foiled a Portuguese arms
dealer’s scheme to purchase missile parts for Iran. Working with two temporarily deputized mercenaries (widely reputed to have ties with the Nicaraguan Contras and the C.I.A.), Painter set up the deal himself, crashing into a Midland warehouse with “Nightline” cameras rolling just as the “dealer” was taking possession of his “contraband” — barrels filed with sand, labeled as missile parts. Federal authorities declined to prosecute. Nor were they impressed by Painter’s claim to have discovered, also with the use of undercover mercenaries, the existence of “terrorist training camps” in Northern Mexico. Painter returned disappointed from his meeting with C.I.A. officials in D.C. He complained to an Associated Press reporter, “It’s just very mind-boggling that this credible information is being ignored.”

More troubling to Midland County officials were Painter’s frequent out-of-state stings, which took him as far afield as Illinois. Wherever there was revenue potential, Painter kept a hand in the game, ensuring that when the proceeds were divided, his office would get cut in. By the late eighties, hundreds of thousands of dollars were moving through the sheriff’s federal forfeiture accounts. In 1991, the court, led by then-County Judge Charles W. “Bro” Seltzer, moved to rein in Painter. Citing fiscal constraints and unacceptable liability risks, the court directed the sheriff’s office to confine its operations to Midland County. Seltzer told the Observer in a 1991 interview that the court was also making a statement about the turn law enforcement had taken in West Texas. “Law enforcement is not, never has been, and never should be a for-profit enterprise,” he said. Seltzer knew the county was threatening a sacred cow. “There is a whole industry of people out there — professional snitches, informants, and worse — who do nothing but get in good with dopers or anyone else they think they can set up, and then go peddle their deals…to the highest bidding law enforcement agency,” Seltzer said. “And frankly, some of these people are downright scary.” Seltzer had good reason to be worried. Painter responded by suing the commissioners for infringing on his constitutional authority. A judge ordered Painter to limit temporarily his out-of-county activities. But the ruling also reasserted Painter’s control over forfeiture funds, which allowed him a measure of independence from the commissioners” budgetary authority.

In February of 1997, Painter’s operation was again under suspicion. Ector County D.A. John Smith in Odessa contacted the Midland Texas Ranger’s office following a meeting in which members of the Permian Basin Drug Task Force presented Robert J. “Duke” Bodish, of the governor’s Texas Narcotics Control Program, with evidence of illegal activity by Task Force Commander Tom Finley. Together with F.B.I. agent Dan Kennerly, Texas Ranger Sergeant Curtis Becker began a year-long investigation of the task force. Through interviews with current and former personnel, Becker found that Finley had falsified records — including his own expense reports, training certification for himself and others, and, more importantly, his quarterly reports to the governor’s office, which included inflated figures on amounts of drugs seized. (This is documented in the Ranger’s report obtained by the Observer.) Record-keeping for the evidence vault was extremely lax, according to former employees, and drugs were missing from the vault. It was also alleged that Ector County Commissioner Mike Patton had been on the task force payroll for several months prior to taking office on the Commissioners Court. Several employees told Becker that Patton, ostensibly retained as a confidential informant, had done nothing to earn his $38,000 annual salary. Task force clerk Gloria Thornton told Becker that when she inquired about Patton’s employment, Finley responded that the task force needed a friend on the Commissioner’s Court in neighboring Ector County (Odessa), where the task force was officially based. (The Commissioners Court in Midland had voted that the county would no longer serve as the host to Painter’s task force, after Painter sued the Midland County commissioners.)

By the spring of 1998, Duke Bodish had heard enough. The governor’s office warned that funding for the task force would be terminated if changes were not made in the administration. According to reports published in the Odessa American, the governor’s office informed Painter that Finley had to go. (Bush spokesperson Linda Edwards now denies this report). Painter refused to fire Finley, and the task force was defunded on June 1. In response to news reports about the task force, even more people came forward to cooperate with Becker and Kennerly’s investigation. Ector County D.A. John Smith told the Odessa American, “It reached the point where I didn’t want to turn over any more rocks because I was afraid of what might come out.”

In the interest of objectivity, Smith requested that the Attorney General’s office send someone to present the evidence to the grand jury. John Neal of the A.G.’s office brought the evidence, chiefly concerning falsification of records and perjury by Finley, before a grand jury in late August, despite the fact that new allegations — including credible reports from former investigators — were still surfacing in the final weeks of the investigation. These included allegations (documented in Becker’s investigation report) that task force agents had falsely claimed to have found heroin in a suspect’s house, and that members had taken paid leave to travel to Finley’s ranch in Gaines County, ostensibly for firearms training, but actually for beer drinking and hunting. In another particularly damning allegation, Tim Whitfield, a former investigator with the task force, reported that Finley had personally cut a deal with a dealer named Bill Anderson moments after a drug bust: turn over the cash and jewelry confiscated in the bust, and the drugs and drug paraphernalia would be returned, with no charges filed. Whitfield told investigators that when he confronted Finley about the incident, Finley told him the task force needed the money to make its matching funds, and presumably did not have time to go through formal forfeiture proceedings.

Yet no indictments were returned. Smith told the Odessa American last summer that he blamed the Attorney General’s office, for not aggressively presenting the more damning evidence. Finley, who lost his job and now works as a private investigator in Midland, said the investigation was the work of politicians who envied his success. “People were real happy with us until we got the wrong combination of politicians in office, who think more of themselves than the public,” Finley told the Odessa American. When the investigation ended, Painter went back to work.

The End of the Old West?

The most durable of Painter’s adversaries is perhaps the least likely, considering that in Midland-Odessa, politics and law enforcement are dominated by white men. Midland County Commissioner Louisa Valencia is the only Democrat left on the court, as well as the only minority representative. One of the last holdouts from the old court that battled Painter over his budget and out-of-county adventures, she represents the black and Hispanic south and east sides of Midland. In a quiet voice, Valencia describes in understated terms her ten-year battle with Painter. She watched Painter’s arch-enemy, former County Judge Bro Seltzer, come and go. “When Bro ran for re-election, Painter fought him tooth and nail all the way,” Valencia recalled, referring to the unusual spectacle of an incumbent Republican county sheriff working to defeat an incumbent Republican county judge. Valencia almost got swept away as well — but not at the polls. In 1994, toward the end of her third term, a man she didn’t recognize entered the upholstery business she runs in Midland. “He wanted to pay for some material with food stamps,” she recalled. “I said, ‘No, you can’t do that.'” Valencia later discovered that her customer was an undercover sheriff’s deputy, one of Gary Painter’s men. When Valencia confronted the man at the county courthouse, he apologized and told Valencia he was just doing what he was ordered to do. Then she confronted Painter, who claimed his deputy was acting on a Crime Stoppers’ tip, the sources of which are confidential. “I wasn’t going to run again until that happened” Valencia said. “But he can’t get rid of me that way.”

Valencia’s was the only dissenting voice when the current Commissioners Court voted to join the new task force in Pecos (the outgoing court had rejected Painter’s first proposal). Now she keeps tabs on his activities. At issue in recent months has been maintenance costs for the sheriff’s fleet of surplus military vehicles, which he houses in garages in Midland and Pecos, and which are used for STAR training and other operations. Because the vehicles are not county property, the commissioners have steadfastly refused to pay for maintenance on the fleet, which includes two armored personnel carriers (giant tank-like trucks that run on treads), several helicopters, flat bed trucks, eighteen-wheelers, jeeps, generators, and other equipment. According to County Auditor Carole Wayland, the sheriff has used funds from his federal forfeiture account to maintain the fleet.

Painter has a new adversary in Mike Hall, a Midland County sheriff’s deputy, running against his own boss in the Republican primary election. Hall, who has been openly critical of Painter’s profligate spending and out-of-county adventures, says he has already won over several of Painter’s former supporters. “The sheriff ought to work for Midland County, not for Presidio or Brewster county, or the task force. He ought to be working for the county, in the county, for the citizens,” Hall said. He promises to move Midland into the D.P.S. task force, and points out that the Trans-Pecos task force has not been very productive in its first year. Because the force failed to make its matching grant through seizure money, the participating counties are being asked to pay several thousand dollars each to make up the shortfall.

Hall knows he will have to fight an uphill battle against Painter, who put him on the midnight shift immediately after he announced his candidacy, to prevent him from politicking while on duty. Yet Hall believes he has a decent shot at winning, and Valencia agrees. Though she is a Democrat, she will be backing Hall. (Painter had no Democratic opponent last time around, and none has declared for this election, in a county in which the Democratic primary has become almost irrelevant in the election of county-wide officials.) In the last election, a primary opponent with no law enforcement experience polled 46 percent against Painter. Valencia thinks this time Painter can be defeated. “A lot of Gary’s old supporters have called me and told me they’re behind me, and they will support whoever I think is the best man,” Valencia said.

It won’t be Wyatt Earp.