A part of the criminal case that helped drive former U.S. House Majority Leader Tom DeLay from public life is hanging on the Texas Court of Criminal Appeals, which will hear arguments Wednesday about whether a dropped conspiracy charge against him should be reinstated.
Prosecutors want the charge reinstated, but lawyers for DeLay and two co-defendants contend a lower appellate court got it right -- that the law was not in effect when the alleged conspiracy occurred in 2002.
DeLay's trial on remaining felony conspiracy and money laundering charges must wait until the state's highest criminal court rules, which could be weeks or months after Wednesday's hearing.
DeLay, who resigned his seat in Congress last summer, wants to get the criminal case behind him, said his attorney, Dick DeGuerin of Houston. DeLay is not expected to attend the hearing
DeGuerin said prosecutors' appeal of the dismissed conspiracy charge allowed them to put off DeLay's trial and hurt him as he tried to regain his leadership post and fight off election challengers, DeGuerin said.
"Being able to drag it out this long has caused the maximum damage to Tom DeLay," he said.
Travis County District Attorney Ronnie Earle alleges that DeLay and two co-defendants, Jim Ellis and John Colyandro, illegally funneled $190,000 in corporate contributions through DeLay's Texans for a Republican Majority political action committee and through an arm of the National Republican Committee to seven GOP state legislative candidates in 2002.
The defendants say they did nothing wrong.
Judge Pat Priest dismissed a charge accusing the men of conspiring to violate the Texas Election Code. Defense attorneys argued successfully that that charge wasn't even the Texas law until Sept. 1, 2003, well after the 2002 election.
The remaining conspiracy charge alleges conspiracy to launder money.
The 3rd Court of Appeals agreed with Priest's ruling. Prosecutors appealed to the Court of Criminal Appeals.
Prosecutors rejected DeLay's contention that the state's conspiracy law didn't apply to the Texas Election Code until 2003 in a brief filed with the court.
"The plain language ... is clear and unambiguous: the offense of criminal conspiracy applies to all felony offenses defined by Texas law, including the offense of unlawfully making a corporate political contribution," prosecutors wrote.
Prosecutor Richard Reed wrote about the Legislature's treatment of the state's conspiracy law, dating to the days of the Republic of Texas and even noting an 1883 special legislative session called in part to curtail the barbed wire fence wars of the time.
That year, lawmakers changed the penal code to make conspiracy apply to any felony. The law remained substantially unchanged for decades and was stated that way again in the 1974 penal code revision, Reed wrote.
But DeGuerin said criminal conspiracy did not apply to offenses defined outside the penal code unless specifically written into the law.
"There was no conspiracy to violate the election code on the books at the time that the conduct took place. There's no such crime, in other words," DeGuerin said in an interview.
His brief states that prosecutors want the court to rewrite the criminal law to reflect what the state thinks the Legislature must have meant.
Recalling "arcane and obscure history" doesn't change past court rulings on conspiracy or change the way the law is written, DeGuerin said.
DeLay and his co-defendants were indicted in September and October of 2005. Soon after, DeLay stepped aside as majority leader. He remained a member of Congress, representing his suburban Houston district, and won his Republican primary last March. But he later resigned from public office.
After an extended court fight that ultimately prevented the Republican Party from placing a new candidate on the November election ballot, DeLay withdrew from the race. A write-in Republican candidate couldn't muster enough voter support, and DeLay's seat is now held by Democratic Rep. Nick Lampson.