In November 2010, former United States House Majority Leader, Tom Delay, was convicted in Travis County Texas of money laundering and conspiracy to commit money laundering. On September 19, 2013 the Texas Third Court of Appeals (COA) reversed the Delay conviction and entered an order of acquittal by a 2-1 vote. The COA ruled there was legally insufficient evidence to convict and, therefore, Delay’s constitutional right to “due process” was violated when the jury found him guilty. The Texas Court of Criminal Appeals (CCA) decision this week to grant discretionary review is fascinating. I’m wondering whether the CCA is giving the lower court political cover, or whether there is a genuine issue at hand.
The following facts were not in dispute. Delay was a board member of Texans for a Republican Majority (TRMPAC), a Texas general purpose political committee. Delay helped TRMPAC solicit and raise funds for political activities. During the 2002 election cycle, TRMPAC received donations from corporations in excess of $190k. From the TRMPAC bank account in which the corporate funds were deposited, TRMPAC issued a check for $190k to the Republican National State Elections Committee (RNSEC), a component of the Republican National Committee. The RNSEC then deposited the check from TRMPAC into an account created to isolate and hold corporate contributions (a “soft money” account). About two weeks later, the RNSEC issued checks to seven Texas candidates amounting to $190k from a different bank account which did not include corporate contributions. Said another way, a “hard money” account. The RNSEC never transferred funds between these two accounts. Under Texas Election Code law, it was illegal to channel corporate (soft money) political contributions to individual candidates running for office.
Texas prosecutors alleged the funds from TRMPAC were “dirty.” In other words, they were the “proceeds of criminal activity.” Consequently, they alleged the subsequent fund transfer to the RNSEC was an attempt to “clean” the funds (money laundering) before transferring them to Texas candidates. Delay’s defense was that none of the fund transfers were illegal and, consequently, the funds were never “proceeds of criminal activity” to support the money laundering charges. Nonetheless, the jury convicted. However, the COA reversed and held the evidence never proved the funds transferred were the proceeds of criminal activity. The state prosecutors, predictably, asked the Texas Court of Criminal Appeals to review the COA decision. The state argued the COA had “invaded the province of the jury” by holding there was insufficient evidence to convict Delay of a crime.
Now the CCA has the case. The first thought coming to mind was whether the CCA wanted to give the lower Texas court some political cover. But they could have done that by refusing the state’s petition for discretionary review. On the other hand, maybe a majority of CCA justices want Delay convicted on these facts. In any case, it’s an interesting case from a legal, factual, and political perspective. I look forward to the next court opinion.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.