GEORGE WEST – A motion to disqualify the Texas Attorney General’s Office from is role in prosecuting a case against Live Oak County Auditor Tragina Smith was denied by Judge Sid L. Harle, presiding judge from the Fourth Administrative Judicial Region, during a pretrial hearing on Monday, Aug. 5, at the Live Oak County Courthouse. A trial has been scheduled for Monday, Nov. 4.
The motion was made by Terry Shamsie and John Gilmore, attorneys for Smith.
Representing the state were Charles Falck and Christina Lee.
Smith has been charged with theft of funds paid by her ex-husband in matters related to medical premiums for their children, and with falsifying county documents in the commission of this theft. The charges against her are a state jail felony.
After Smith and her husband divorced in 2009, Smith filed for an increase in child support and also requested that all of her children’s health insurance be paid for by her ex-husband. Child support was modified in March 2012.
During that time period, Smith said her husband filed for custody of their children — which was eventually denied — and that she had to hire an attorney to help her contest that matter in court.
Based on her many communications with the state attorney general’s office on child support matters as well as in her role as county auditor, Smith’s attorneys claimed that there was a attorney-client relationship and that represented a conflict of interest in the AG’s office prosecuting a case against Smith.
However, Falck pointed out that a section of the family code (231) specifies that the AG’s office only represents the state of Texas, and that working with clients does not constitute an attorney client relationship.
Smith also pointed to concerns she said she found on what she called an invalid request for reimbursement from a county office and a county employee, which she referred to the attorney general’s office, as additional reasons why there was an attorney-client relationship with the AG’s office.
Falck again disputed this, saying that in answering any questions and responding to any concerns that Smith had in her role as county auditor, his office was working on behalf of the state.
The District Attorney’s office and state district judges representing Live Oak County recused themselves from the case involving Smith in December 2018, according to testimony in the hearing.
At that time, the AG’s office began prosecuting the case and Judge Harle became the presiding judge in the matter.
During the hearing, Smith’s attorneys contended that the AG’s office has not returned files to Smith that were used in the calculation of child support matters, but Falck said all of the information that is available to him has also been provided to the defense attorneys.
Falck further noted that in order for his office to be disqualified from prosecuting the case, the concern “has to be substantially related to due process and actual prejudice needs to be shown.”
He said those criteria could not be met by the defense attorneys.
During the hearing, Smith testified that she believed the AG’s office had represented her on child support matters, and said she was not informed of Chapter 231 of the family code that specified those consultations did not qualify as an attorney-client relationship.
In regard to a question that Smith had regarding a reimbursement matter and the Live Oak County Sheriff’s Office, Smith said she was directed to contact the AG’s office.
She said she had been waiting for a response when the investigation against her began, and when she was placed on leave.
After a break, Starts Apostolou, an attorney for the child support division of the AG’s office, testified.
He noted that his department is in a separate building from other branches of the AG’s office, and there is little interaction between different divisions.
He also emphasized that “the AG’s office represents the state of Texas, and not individual applicants (on child support matters).”
Following his testimony, Shamsie again asked for a recusal of the AG’s office in Smith’s case, and for an independent prosecutor to be appointed.
“The AG is going to be a witness,” he said. “I am asking that they be disqualified and that the AG’s procedures as to this case be reviewed.”
Falck pointed to a previous case, Landers v. State, to show that the concerns raised by Shamsie did not rise to such a level that would disqualify his office from being involved with prosecuting the case.
“The defense has not shown an actual due process violation,” he said.
He added that “the defense has put the cart before the horse, and the state recommends the court deny (the defense’s) motion.”
Judge Harle denied the motion to disqualify the AG’s office from the case, saying that there was no due process violation.
He asked Shamsie and Gilmore “to put together a subpoena specifying” what information they believe Smith has not been given by the AG’s office in regard to the case.
Harle said he believed the trial could be held sooner than Nov. 4, and suggested moving it to Sept. 30.However, Shamsie and Gilmore have other pending cases they are involved with, saying they would not be able to represent Smith in September. For this reason, the Nov. 4 trial date was maintained.
Jeff Osborne is the editor of The Progress. He can be reached at 361-786-3022 or firstname.lastname@example.org.