One charge going to trial in Oakley case; other three quashed
Burnet County Judge James Oakley was suspended from his position without pay by the State Commission on Judicial Conduct on March 15 in relation to a recent indictment. File photo
All but one of four charges against suspended Burnet County Judge James Oakley were quashed by visiting District Judge Dib Waldrip during a pre-trial hearing on Monday, July 10. Jury selection for the fourth charge, a misdemeanor involving the use of a county vehicle to drive to Pedernales Electric Cooperative board meetings, begins at 8:30 a.m. on Aug. 29.
A grand jury indicted Oakley on March 7 on the four charges: three misdemeanors and one felony. The charges are divided between two issues, one challenging Oakley’s dual service as a county judge and a PEC director and the other concerning a vehicle collision on April 2, 2021, at the intersection of Texas 71 and CR 191 in Spicewood.
District Attorney Wiley “Sonny” McAfee of the 33rd and 424th judicial districts must now decide whether to appeal the charges to a higher court or rewrite and refile them. He will not be taking them back to the grand jury, he told Judge Waldrip, adding that he would probably decide by the end of the following week (July 21) which direction he will go. He could also decide to drop the charges.
In the felony charge, Cause No. 55029, Oakley was accused of tampering with evidence for moving a bumper at the scene of an accident in which he was involved with the “intent to impair its verity and availability as evidence in the investigation.”
Waldrip granted the motion to quash on the grounds that the charging instrument “fails to properly allege or state an offense of tampering with physical evidence.”
A motion to quash was also granted in Cause No. 55154, Official Oppression, which alleges Oakley subjected one of the people involved in the accident “to mistreatment that the Defendant (Oakley) knew was unlawful” by moving the bumper.
Again, Judge Waldrip said the charging instrument did not specify intent and that it “fails to allege a manner and means in which the purported mistreatment was known by the Defendant to be unlawful, i.e. either criminal or tortious, as required …”
The motion to quash Cause No. 55344, which involves dual service as a public servant and member of the board of a nonprofit corporation, was also granted by Waldrip, the 433rd judicial district judge in Comal County and the 3rd administrative judicial region judge. He stepped in to oversee the case due to the recusal of both 33rd District Judge J. Allan Garrett and 424th District Judge Evan Stubbs.
In his ruling, Waldrip pointed to “legislative intent” in writing and amending Chapter 171 of the Texas Local Government Code — Regulation of Conflicts of Interest of Officers of Municipalities, Counties and Certain other Local Governments. The law originally dealt with officials who failed to disclose a substantial for-profit business interest that could be affected by their public servant position.
In amending the law over the years, Waldrip noted, state legislators attempted to be more inclusive with people serving in both positions rather than exclusive.
“At no time since the implementation of the chapter has the Legislature … sought to criminalize additional breaches or violations of the law,” Waldrip wrote in his order. “Rather it has specifically legislated limited civil remedies (preempting those found in common law) upon a finding of non-compliance. While Chapter 171 has not been amended in 20 years, the historical construct of the law as written by the Legislature seeks to include more, rather than exclude, people willing and able to serve as local public officials, even those with potential significant conflicts of interest.”
“Acting in the capacity of a public servant” and “serving as a member of a board of directors of private, nonprofit corporations” are two distinct roles, Waldrip continued.
“The mere fact that an individual received compensation and remuneration for his service as a member of the board of directors of a private nonprofit corporation while serving as a public servant does not constitute a violation of the criminal office of Abuse of Official Capacity,” Waldrip said.
Oakley’s attorney, John Carsey of Minton, Bassett, Flores & Carsey P.C. in Austin, was reluctant to call the orders “a win” when asked by DailyTrib.com after the hearing.
“We have to see what the state is going to do,” he said. “All that’s happened here is that the judge ruled all the allegations except one were not legally sufficient to go to trial. They may be able to fix some of those or they may not.”
The judge did not rule on guilt or innocence regarding any of the counts, Carsey continued.
“(Judge Waldrip) just said the one involving the use of a county vehicle was properly, legally, sufficiently charged,” he said. “The others were not. They have to decide pretty quickly how solid they think that is.”
He was unsure if this would affect Oakley’s temporary suspension from serving as Burnet County judge. Oakley was suspended without pay by the State Commission on Judicial Conduct on March 15.
“The commission automatically suspends if there are any charges,” Oakley said after the hearing, adding that he doubted the suspension would be removed with one charge still pending.
While Carsey pressed upon Judge Waldrip the need to expedite a jury trial because “my client is out of a job,” Oakley told DailyTrib.com he was more concerned with the effect his absence on the Commissioners Court is having on the residents of Burnet County.
“Mr. Dockery is doing a great job stepping in,” Oakley said about Commissioner Joe Don Dockery. “But there’s a bigger picture. He is having to take on more duties, as is (County Court of Law Judge) Cody Henson, who is having to hear the uncontested probate cases I usually handle.”
The county judge hears about 300 of those cases a year.
“This is unfortunate, unnecessary and is politicizing a public office,” Oakley said.
The charges listed in the original indictment are:
- Tamper/fabricate physical evidence with intent to impair, a third-degree felony
- Abuse of official capacity, a Class A misdemeanor
- Abuse of official capacity, a Class B misdemeanor
- Official oppression, a Class A misdemeanor
Cause No. 55345, Abuse of Official Capacity, will go to jury trial on Aug. 28 and is expected to last three days, District Attorney McAfee said.