ustxtxb_obs_1991_10_18_50_00012-00000_000.pdf

froin Attorney General Dan Morales, author of the controversial forfeiture statute. Dettman asked Morales to determine whether Painter has the authority to conduct criminal investigations, and make arrests outside of Midland County and beyond Texas’ borders, and whether the sheriff or the Commissioners’ Court has ultimate control over assets seized in those operations. Since 1985, the sheriff has been in control of forfeited funds collected through operations conducted within Texas. Assets seized in operations outside the state have been deposited in the county’s General Fund and spent at the discretion of the Commissioners’ Court. Before the Attorney General’s office could respond to Dettman’s inquiry, however, Painter filed a lawsuit seeking an injunction preventing the commissioners from enforcing the order. The suit, filed in the 238th State District Court, asserts that “The order effectively removes Painter as Sheriff and inserts the County Judge into the office.” The suit, styled Painter v. Seltzer, further alleges that the order “deprives [the sheriff and his deputies] of their civil liberties and emasculates the departments’ ability to fight crime in Midland.” The plaintiffs also request that the Commissioner’s Court be ordered to pay “the reasonable and necessary attorney’s fees” incurred in bringing the suit. Much of the lawsuit reads like a press release, stating, for example, that “Under Painter’s leadership, the department has gained a state and national reputation as a leader in the fight against illegal narcotics.” Painter’s sting operations, the suit says, have resulted in “the seizure and forfeiture of millions of dollars in drug money and properties.” Moreover, cooperative efforts with “outside agencies,” according to the suit, have “greatly enhanc[ed] the department’s ability to investigate and arrest local drug dealers.” Just hours after the suit was filed, several of Painter’s deputies submitted permission slips to the Commissioners’ Court seeking clearance to leave the county, ostensibly in compliance with the order. The requests were rejected. According to the Midland ReporterTelegram, “Commissioner Guy McCrary called the appearance of the deputies an orchestrated parade that smacked of mockery of the court because the sheriff had deemed the order invalid.” McCrary denounced the “parade” as a naive and deliberately provocative gesture. “I consider that expressly unprofessional,” he told the Reporter-Telegram. The following day, Painter agreed to abide by the order. Courtroom Showdown The attorney who filed the suit on behalf of the Midland sheriffs is Hal Upchurch, the former district attorney for the 143rd district \(which department frequently collaborated on sting operations. Upchurch says the commissioners went “overboard” in issuing their order. “They prohibit the sheriff’s department from going across county lines to gather evidence,” Upchurch said. “There is ‘one airport in Midland county that is impossible to get to without leaving Midland county and going about three miles through a stretch of Ector county and then reentering Midland county. That’s the only road into the airport, so if they get a routine call to that airport, they’ve got to stop and get permission from the County Judge or run the risk of being held in contempt of court for violating the order.” The order, however, specifically states that deputies do not require the judge’s approval when “interviewing witnesses and/or suspects involving cases arising within Midland County.” The commissioners have consistently argued that this provision is sufficiently broad to allow deputies to travel to other counties for “legitimate” law enforcement purposes. Upchurch also complained that the order infringed on deputies’ private lives. “The way the order reads, they’ve required every employee in Midland county to get the permission of the county judge 12 OCTOBER 18, 1991 every time they want to leave the county if you’re on comp [compensatory] time, which means you’ve got to have their permission to go on vacation,” Upchurch said. This issue is addressed in the commissioners’ response to Painter’s suit. The commissioners’ countersuit defines compensatory leave as “time that an employee has a right to be off work because of overtime previously worked.” The response then states that “Sheriff Painter has been ordering and permitting his deputy sheriffs to perform sheriff’s duties outside the boundaries of Midland County and outside the boundaries of the State of Texas at a time when the officers were on compensatory leave.” But, the commissioners’ response says, “An employee cannot be working and off work at the same time. If a deputy sheriff is working for Sheriff Painter while on compensatory leave, then as a matter of fact and law the deputy is earning additional compensatory time to be off work.” Thus, the commissioners argue, the sheriff’s policy of requiring deputies to perform “unauthorized duties” outside the county “adversely affects” the county in two ways: “First, Midland County loses the services of its deputy sheriffs while they are working out of the county. Second, Midland County loses the services of its deputy sheriffs when they return home and take time off for the compensatory time earned while they were working out of the county.” Upchurch ultimately acknowledged that the commissioners had “some legitimate concerns,” particularly on the question of liability, and added that even the question of restricting sting operations was negotiable. “If it were simply a limited order saying you will not leave Midland County for reverse stings or something like that, I seriously doubt that the lawsuit would ever have been filed,” he said. The commissioners said that neither Upchurch nor Painter had previously indicated they were flexible on the question of out-of-county stings, but could not discuss the matter since it is under litigation. In their response, the commissioners also flatly refused to pay the $150-an-hour legal fees for Painter’s suit. As the “governing and administrative body of Midland County,” the countersuit states, the . Commissioners’ Court “has not authorized Gary Painter to bring suit” nor to retain an attorney on behalf of the sheriff’s department. The commissioners therefore requested that the court remove the sheriff’s department as a party in the case and name Painter and his deputies as sole plaintiffs, “if the suit is to be maintained.” A group’ roup of sheriff’s deputies have pledged to raise money to continue the suit if county funding is cut. Under Investigation There is a certain irony in Upchurch being selected to represent Painter’s sheriff’s department in a case involving disputed forfeiture funds. Just two days before Upchurch filed the suit against the Commissioner’s Court, he’d filed separate charges claiming that a public accountant’s unfavorable 1990 audit of his former 143rd District Attorney’s office’s budget, including its forfeiture account, was defamatory and amounted to libel. Upchurch resigned his office several weeks before the accountant’s report was released. He stepped down “for personal reasons that were unrelated to the audit,” according to the Odessa American. In his suit, Upchurch alleges that the accountant, Randolph Thompson, was responsible for media coverage of the audit resulting in “negative publicity” to the District Attorney’s office and that “the harm to Upchurch caused by Thompson’s activities can never be corrected.” The petition charges that Thompson’s report wrongly concluded that Upchurch was over-reimbursed $20,587 in personal expenses and $48,187 in office costs and employee expenses; purchases were made for more than the $10,000 bid limit without request for bids; personal expenses of employees were paid out of the District Attorney’s fund; an automobile was turned in on an employee ex .