In Texas, paying for cops, courts and prosecutors with fees from defendants has become more and more popular. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor?
by Patrick Michels
November 28, 2016
A little after 1 a.m. on a Sunday in March 2012, Charley Salas was driving some friends home after a night out in Brownwood, a rural town midway between Austin and Abilene. Five months pregnant, Salas was the designated driver. Earlier that night, a friend had spilled beer in the backseat, so when a cop pulled her over for making a wide right turn, the smell made him immediately suspicious. He checked her ID and discovered Salas was driving with an invalid license. Though Salas pleaded that she didn’t know, she was handcuffed and taken to jail, where she spent the night.
At her court date in June, she faced either more jail time or a $2,000 penalty. As a 26-year-old single mother, Salas couldn’t afford either. But Brown County Attorney Shane Britton made her an offer: Salas could avoid the charge and go home that day if she took a “pretrial diversion,” a deal similar to probation except that the terms are dictated by a prosecutor, not a judge. Salas would have to avoid alcohol, drugs and “persons or places of disreputable or harmful character” for the next year, and pay monthly fees to the Brown County Court at Law, the Texas Department of Public Safety and to Britton’s office. Those fees added up to nearly $1,400, or about $116 a month. Salas had no idea how she’d pay, but she took the deal rather than risk a conviction, which would come with more state surcharges.
“It seemed a lot cheaper to do so,” she said recently. “I didn’t have the money. I had to hurry up and go to work. I was like, ‘OK, probation period. Sign me up, let’s do it.’”
Salas says she made her first payment, then began asking for extensions. She paid when she could, but then she lost her job and missed a lot more payments. She’d get letters reminding her to pay, and when she could, she’d drive to the courthouse with separate money orders for each of her fees. When she missed more than three months in a row, Salas says a woman in Britton’s office added late fees that weren’t mentioned in her agreement. At one point, Salas says, she took out a payday loan so she could afford her payments to the court. Around Christmas 2014, Britton’s office sent a letter demanding $1,000, and Salas asked for one last extension. In February 2015 — almost three years after her fateful right turn — she stood at the counter at his office and handed over two money orders, one for $600 and one for $400.
About a year later, Salas got a call from a man named Joe Cooksey, who explained that he was investigating suspicious payments to Britton’s office. Her case had caught his eye. Salas didn’t know how much she’d paid over the years, but Cooksey found records showing at least her last $1,000 were deposited in two accounts designated for donations to Britton’s office. What’s more, Salas had made the payment nine months after her case had been dismissed. And there were others who had apparently been pressured into “donating” money to Britton’s office. Salas was stunned.
Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff.
In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor?
Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes.
In March 2007, a young attorney named Ryan Locker went to Austin and asked lawmakers to help the Brown County Attorney’s Office raise some money. He’d spent the last year as an assistant to Britton, who had been county attorney since 2001. Lately, they’d been grappling with a budget shortfall. Locker told lawmakers he’d like to “generate some income by grant writing,” but that his office was prohibited by state law from accepting gifts. At Britton’s request, state Representative Jim Keffer, whose district includes Brown County, was carrying a bill that would exempt the Brown County attorney from the ban.
“The question that comes up, obviously,” Locker told a committee of lawmakers, “is how do we know this is not going to result in a quid pro quo? You offer a donation to our office in exchange for a favorable disposition in your case. Well, first and foremost, that would constitute the second-degree felony of bribery.”
The donation fund would be completely transparent, Locker promised. And he had one argument he knew tightfisted Texas legislators would love: Donations would keep the office running without raising taxes. “This is a tool that will hopefully keep the expenses of our office off of the back of Texas taxpayers,” he said, “and continue to keep them on criminal justice-minded nonprofit institutions, and also on Brown County offenders.”
Such a willingness to treat defendants as ATMs has become the norm since the 1990s, when lawmakers discovered their tough-on-crime policies cost more than they were willing to pay. In response, Texas and other states hiked the fees that local courts could charge defendants and encouraged counties to get creative in balancing their budgets with less help from the state.
Soon Britton’s donation fund was taking in tens of thousands a year. But the fund benefited little from “grant writing” or “criminal justice-minded nonprofit institutions,” and almost entirely from misdemeanor defendants. Here’s how it worked: A woman might come to court with a first-time DWI charge, facing six months in jail, a $2,000 fine paid to the county, plus $3,000 more in state surcharges to keep her driver’s license. Britton would offer her a deal: $2,000 up front and he’d drop the charge. The county clerk’s office would get a $250 processing fee, and the rest would be “donated” to Britton’s office. It was an unconventional arrangement, but for years it met few complaints — until Joe Cooksey made Britton’s program the target of his latest crusade against the county leadership.
Cooksey holds no official position in Brown County, but he is a common sight haunting the hallways of the courthouse. He’s often spotted delivering public records requests, or spelunking in the county clerk’s underground file room. Perched on the courthouse’s second-floor balcony on an October morning, leaning against a white column and lighting another cigarette, Cooksey tells me that his compulsion for digging in the county’s affairs is simple. Brown County is a business, he says, and “I own this business, along with everybody else.”
Wearing rimless glasses and a cellphone holster, the 60-year-old former high school science teacher seems well-suited to the role of vigilante accountant. His interest in local politics began in 2006 with an effort to recall some city officials, and has grown to a multifront war against mismanagement and misappropriated funds, which he details on his Facebook page, “Brown County WatchDawg.” When he ran, unsuccessfully, for county office in 2010, he introduced himself by saying, “My name is Joe Cooksey. It’s also troublemaker, loose cannon, and ‘blank-blank-blank,’ and a number of other things.”
All of which is to say that in 2009, when Cooksey first railed against the donation fund, the county commissioners were not predisposed to join him in shouting from the rooftops. But Cooksey was relentless, and in 2011 a judge in Brown County asked for advice from the state Office of Court Administration, which suggested the judge stop signing agreements that included donations to Britton’s office. Britton responded by printing agreement forms that didn’t have room for a judge’s signature. Instead, defendants delivered their donations to Britton directly, sliding their payments across the counter at his third-floor office window. At this point, according to Brown County Clerk Sharon Ferguson, Britton’s office stoppedsending the donations to her office for processing, instead depositing them with the county treasurer. As he relates the timeline to me, Cooksey offers a reminder that the donation fund began with the promise of complete transparency, but that it wasn’t long before almost no one in the courthouse was watching.
On the balcony, Cooksey finishes his cigarette, and we walk inside just in time to pass Britton in the hallway. On Facebook, Cooksey had recently described Britton as a “certified pathological liar.” As the two of them cross paths, I’m not sure what to expect. But Cooksey gives a friendly nod, and Britton returns it as he walks on by.
I meet with Britton later that day in his conference room, which is lined with green bound books of case law. He explains that using the word “donation” was a mistake; the whole mess could have been avoided by simply calling it a fee. “I have no earthly idea where the word ‘donation’ came from,” he tells me, guessing it was either the Legislature or Locker’s idea. (Locker, now an assistant U.S. Attorney in Texarkana, declined an interview request.) “People that get their feathers ruffled about that program and those statutes — if it was any word in the dictionary other than the word ‘donation,’ I don’t think that they’d get upset about it.”
Britton tells me his program was meant to reduce costs for poor Texans, given all the fees that come with a conviction. He points out that the Department of Public Safety’s Driver Responsibility Program demands that drivers with a DWI conviction pay $3,000 or more just to keep their license. “Prosecutors are kind of stuck in this quandary,” Britton says, “where poor people, college students, working-class folks, get these offenses and there’s really no creative way to punish them while, at the same time, not doing something to them that’s going to hurt them.”
Nearly 1.4 million Texans have suspended licenses because they can’t pay the state’s surcharges — and in fact, Salas was one of them when she got pulled over in 2012. Far from alleviating her burden, Britton’s donation program became just another debt she owed. The program’s future is uncertain now, Britton says, and so is his own time in the office. “There’s been a lot of days lately that I’ve questioned whether it’s worth it or not,” he tells me. “Maybe this is kind of a young man getting old. … I’m probably not long for this job.”
In May 2015, county officials commissioned a forensic auditing firm to examine the donation funds. To save money, the county asked auditors to investigate payments only from January 2013 to May 2015. When the report came back in June, auditors wrote that they were “unable to locate a Microsoft Excel spreadsheet containing any receipt information,” and found only “a generic off-the-shelf receipt book used by the County Attorney’s office” for some defendants. Britton is required by state law to file annual reports on the fund with the county auditor, but the report says Britton never answered a request to produce them. Over the summer, Brown County Auditor Jennifer Robison asked Attorney General Ken Paxton for an opinion on whether Britton’s donation program was legal. But she also hintedthat the issue could be moot. “I am aware,” she wrote, “that various law enforcement agencies are investigating some of these matters.”
For decades, pretrial diversion has been a popular tool to reduce the burden on courts and prisons while helping people manage problems that led to their crime. (Specialty courts for veterans, sex workers and drug users are variations on the theme.) Prosecutors have occasionally looked for creative ways to raise money from these programs, but the Texas attorney general’s office has repeatedly put the kibosh on those schemes. In 1999, then-Attorney General John Cornyn issued a pair of opinions saying prosecutors can’t force defendants to donate to an outside nonprofit as a condition of pretrial diversion. And while state law allows prosecutors to collect a pretrial diversion fee of up to $500, then-Attorney General Greg Abbott ruled in 2014 that the fees can only be spent to “reimburse a county for expenses related to a defendant’s participation.”
But lawmakers’ enthusiasm for offender-funded criminal justice keeps forcing local systems to lean on defendants. A 1990 U.S. Justice Department report lauds Texas as a trailblazer in offender-funded probation for covering half of its adult probation budget with fees paid by offenders. In 2015, Texas was one of a few states to receive a grant from the Justice Department to help reduce the $1 billion in fines and fees its courts collected from defendants.
“Too much of our criminal justice system is funded by fees and costs assessed to the defendant,” says Mary Schmid Mergler, who directs criminal justice reform efforts at the advocacy group Texas Appleseed. “Many people just do not have the money to pay the fines and fees, and do not have a way to come up with that money. And it’s not because they’ve done anything wrong, it’s just because of where they are at that moment.”
Despite the cautionary rulings from the attorney general’s office, lawmakers have actually been giving more prosecutors the right to collect donations. In January, prosecutors in eight counties will have the same gift-collecting authority that Britton does. None of these prosecutors were certain why; they told me it wasn’t something they’d asked for, nor did they plan to start taking gifts. “I could see situations where it would be helpful,” Guadalupe County Attorney Dave Willborn said, “but taking money from defendants is a different story. That’s just walking where I’d fear to tread.”
In practice, the difference between a fee and a bribe can depend a lot on context. “Sometimes there can be an appearance of unethical behavior any time funds are exchanged contingent on the outcome of a criminal case,” explains Texas District and County Attorneys Association spokesperson Shannon Edmonds. Good judgment over who goes to trial and who gets a deal is part of a prosecutor’s job description. And sometimes it’s a power they abuse: In 2014, prosecutors in both El Paso County and Cameron County were sentenced to federal prison for taking bribes in exchange for pretrial diversion agreements. That same year, some Brown County law enforcement officials began questioning Britton’s motives as well.
Bobby Duvall was the chief deputy in the Brown County Sheriff’s Office when he began looking into Britton’s donation fund in 2014. A judge had complained to him that a defendant tried to buy hisway out of a court fine with a “donation,” as he’d done with Britton. Duvall, who retired in February, says the donation program was news to him. “Even though the fund was so-called public,” he says, “it was managed in a very quiet kind of way.”
Duvall reached out to Cooksey for help. As he was gathering records for Duvall, Cooksey had a moment of serendipity. Reviewing the list of payments to the donation fund, he noticed a name missing: Neri Herrera-Jimenez. Cooksey had once seen Herrera-Jimenez agree in court to a pretrial diversion for DWI that included the customary “donation,” but there was no official record of it. Herrera-Jimenez still had the receipt, signed by an assistant in Britton’s office, for a $1,500 donation.
“It snowballed,” Cooksey says, “and we began to look into other people.”
Based on court records and financial accounts, Cooksey believes Britton started taking some donations in cash, completely off the books. Auditors counted thousands of misdemeanor cases that were closed without a clear reason; Cooksey thinks under-the- table deals could account for many of those. By reviewing shoplifting cases, he found a woman named Christine Quigley whose charges had been dropped in August 2014, without a record of a donation. When Cooksey called her, Quigley said she’d been told in Britton’s office to choose between being arrested on the spot or paying $500 cash.
Britton says he has never taken cash from defendants under the table; he did not reply to a follow-up message asking specifically about the Quigley, Herrera-Jimenez and Salas cases. In a July letter to the attorney general, he wrote that the county auditor’s request for an opinion “is just the latest in a string of well-orchestrated attempts to undermine” his office, rooted in “a local political squabble.”
But Duvall told me his investigation revealed a pattern of defendants cutting deals in Britton’s office before they reached court. “A payment would be made as a donation, and the defendant walked out of the office thinking it was all legit,” Duvall said. “But the donation would never end up on the books, never end up in the county government.” He said he passed what he learned on to state and federal investigators. An FBI spokesperson declined to comment, as did Texas Ranger Jason Shea. “The Texas Rangers are not a lead investigator in that deal,” he said, and suggested contacting the FBI.
None of which does much good for Charley Salas, who’s still trying to get her money back. When she asked for her payment records, the only documentation was the receipt for her final payment, made months after her case was closed.
Looking back, she said her deal with Britton’s office was “kind of like a payday loan. It all seems too good to be true and you’re eager to hurry up and get it. And before you know it, you’re never paying nothing off and they’re just taking your money.” Salas said she was always told her payments to Britton’s office were for court fees or probation fees — so looking at her receipt from the county showing she paid $1,000 into a couple of “donation” funds makes her especially mad. “I don’t have money just to be giving away,” she said. “That’s money they’re taking away from my kids.”