Shaw said business at county court has basically come to a grinding halt, as a result of the county attorney’s unwillingness to appear in court.
The most recent incident happened on Tuesday, Oct. 2. County court is scheduled for the first and third Tuesday of every month.
County court was convened at 9 a.m. at the juvenile probation building in Karnes City, and when Shaw looked down from the bench she noticed that County Attorney Robert Busselman was not in the courtroom to act as prosecutor for the cases on the docket.
“When we got to court, Mr. Busselman was in his ofice,” Shaw said, explaining that Busselman’s office is in the same building in which county court takes place.
Shaw said that Betty Yarter came into the courtroom, and when the first name on the docket was called, Yarter requested a “decree nisi” – asking for a judgment against an individual for not appearing.
Although Yarter has previously acted as assistant county attorney, Shaw said she did not expect this to continue because of a recent change. Effective Oct. 1, the position of assistant county attorney was no longer funded as part of the county budget approved by Commissioners Court, Shaw said.
Believing that the position of assistant county attorney no longer existed, Shaw called the court into recess.
Shaw asked the bailiff to accompany her down the ramp to Busselman’s office, where she asked him to appear in the courtroom representing the office of county attorney.
“I said, ‘Mr. B. we are having court. Come on,’” Shaw said.
“No!” was Busselman’s terse reply, according to Shaw.
Shaw said that she then explained to Busselman that it was his duty as county attorney to participate in county court and that the code of criminal procedure requires him to be there.
“I don’t care what your code says,” Shaw said was his reply.
Shaw then explained to the county attorney that she would have no option except to reset all the cases if he refused to appear in court.
“I don’t give a (expletive deleted) what you do, Barbara,” was what he then said within earshot of the county judge and at least two other people, according to Shaw.
Busselman then told Shaw that he had designated Yarter to act on his behalf in court.
“I said, ‘Okay, Bob, I am not going to argue with you,’” Shaw said.
Shaw placed a phone call to the administrative offices of the Texas Association of Counties seeking advice on how to proceed but no one was immediately available. She then reset all the cases on the docket for a later date.
“When we are having criminal court, we can fine people, we revoke probation, we release people and we find people guilty,” Shaw said. “I don’t know if she (Yarter) has the authority to do that. I have got to protect the county.”
“She (Yarter) doesn’t work for the county,” Shaw said. “She doesn’t have the statutory authority to represent the county, that I am aware of.”
Shaw said she has also consulted with district judges for advice in regard of how to move forward with court under the circumstances, but she said there still remain unanswered questions in regard of what options are available.
Article 2.07 of the Texas Code of Criminal Procedure allows a county judge to appoint a “county attorney pro tem” under certain circumstances.
“Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state,” the law reads.
Shaw said she is aware that the law gives her the authority to appoint a county attorney pro tem, but she wants to make sure this is the proper action to take before moving forward. She said she is waiting for a detailed response from the Texas Association of Counties before making a decision in this regard.
The Karnes Countywide reached out to County Attorney Robert Busselman for comment last week, but phone messages left on the answering machine at the county attorney’s office have not been returned.
One former county attorney who served in a county outside Karnes, told The Karnes Countywide that a county attorney has the authority to designate any licensed attorney to act on behalf of his office, regardless of compensation. Even if no county funds are designated in the budget to pay the salary of an assistant county attorney, he said, the county attorney can appoint an assistant to fulfill the duties of the office.
District Judge Dick Alcala appointed District Attorney Rene Pena has to investigate and prosecute a contempt complaint brought forward by the county judge related to Busselman’s failure to appear in court on Sept. 5. A court date for this case has not yet been set.
The next session of county court is scheduled for Oct. 16, and the county judge said she remains unsure if court will be able to move forward with the cases on the docket in light of the circumstances.
In the meantime, she said she will do everything she can to make sure there is a competent prosecutor in court that day to act on the behalf of the county.
“It is my job to make sure this court runs with dignity and integrity,” Shaw said.