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Deadline passes for commissioner appealing conviction of misconduct to get on ballot

September 17, 2018

Former Pct. 1 Commissioner Mike McCarty will not be on the fall ballot. His appeal is still being considered by the Ninth Court of Appeals in Beaumont and while an opinion may be imminent, the deadline has passed for a candidate to get on the ballot.

That date was Monday, Aug. 20 and it passed unceremoniously for most, except for political watchers who were anticipating an announcement from the court. There was none.

Neal Davis, who represented McCarty, felt good about the presentation before the Court of Appeals.

“I think oral arguments went well,” Davis said. “You never know though until the opinion comes out.”

Oral arguments were presented before the three-judge panel on May 31 and all parties await the opinion of the court.

“An opinion is expected any time,” Davis said.

He felt like one of the issues that might have slowed a quicker opinion was that he believes they’re looking at the entire record.

Should McCarty prevail, he could be reinstated, at least temporarily.

He still has a civil removal case in Liberty County that took him off the bench, at least while his trial was under appeal in Beaumont.

Poston explained the rather complicated scenario from 201.051 of the Election Code.

“For a vacancy to be filled by special election to be held on the date of the General Election for state and county officers, the election shall be ordered not later than the 78th day before the election,” he said. That date has come and gone.

Should McCarty lose the appeal, his return to commissioner’s court is over. Its likely County Attorney Matt Poston would drop the civil removal case, he said.

A favorable opinion from the Ninth Court of Appeals would return McCarty to his seat on commissioner’s court, temporarily, while the Liberty County civil removal case moves forward.

“If they rule in his favor, he is still subject to the temporary orders of the removal we brought,” Poston said.

The county attorney said he would take time to evaluate what the justice’s opinions were and consider to what extent, if any, it would affect his civil case.

“We have additional causes of action in the civil case that were not included in the criminal case,” he said.

Poston said McCarty would have to win the appellate case and immediately apply to the District Court who removed him, convince the judge that he was wrong in removing him.

“I would still have the right to try him for the final removal,” he said.

Until the mandate from the court has been delivered, current Pct. 1 Commissioner Bruce Karbowski will remain in his place on the commissioner’s court.

Davis wasn’t sure McCarty was ready to return to the county commissioner’s court at this point.

“I think he’s just wanting to clear his name. That’s the thing that means a ton to him, especially in a small town like Liberty. A lot of it has to do with that,” he said.

McCarty was found guilty on Friday, April 21, 2017 on two counts of abuse of official capacity.

Judge Joe Ned Dean, visiting judge in the 75th District Court, sentenced McCarty to six months in county jail, to be probated for a period of two years, and fined him the maximum at $2,000.

According to Section 87.031 of the Texas Local Government Code, the conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct warrants an immediate removal from office.

The judge ordered the removal of McCarty from office, but after the defense filed a Notice of Appeal, he set aside the removal.

On May 22, Liberty County Attorney Matthew Poston presented the Honorable Ernest “Ernie” L. McClendon from the 258th District Court that oversees Polk, San Jacinto, and Trinity counties, who will oversee this case, with a new set of papers. Shortly after noon, he signed them and ordered the immediate removal of McCarty while he awaits his civil trial.

Poston said he hoped for a resolution before the end of the year.

dtaylor@hcnonline.com

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