Edinburg orders 2021 election on indicted elected officials

Edinburg City Hall on Monday, Jan. 13, 2020, in Edinburg. (Joel Martinez | jmartinez@themonitor.com)

EDINBURG — Council members ordered an election that will give residents the option to amend the city charter so that any future elected official charged with a felony is automatically suspended from office, all while raising questions of due process and dragging the criminal cases against the mayor and the Texas Attorney General into the discussion.

It’s important to note, the proposed amendment will be placed on next year’s ballot and will not affect the current term of Edinburg Mayor Richard Molina, who was previously indicted on 11 counts of illegal voting, a second-degree felony, and one count of engaging in organized election fraud, a first-degree felony. The only way an approved measure could affect the mayor is if he decides to run for reelection next November and he remains under felony indictment.

The council approved those terms in a 3-2 vote Tuesday night after spending hours debating the issue.

Edinburg attorney Javier Peña kicked off the discussion during the public comment section of the meeting, warning council members the city could face expensive litigation for violating “constitutional” and “fundamental” rights.

“In the United States, we have the presumption of innocence, and the only way to overcome that is with due process and (to) provide proof. And what I see on my screen on these resolutions and the proposed language, you’re taking away the due process,” Peña said about removing or suspending an elected official without a conviction. “All you’re asking for is a big lawsuit against the city the first time you try to enact this type of procedure.”

The Supreme Court of the United States has already struck down similar attempts, he said, though he provided no references.

Then, there’s the law of unintended consequences.

“Each one of you will be able to be removed based on an allegation — not proof — but an allegation of wrongdoing, and what that does is, it takes the rights and the power away from people like me, a voter. We vote for you guys, and it’s our choice to put you in or take you out,” he said before ultimately chalking it up to politics.

“I’m not going to name who that person is, but I think we all know who this is targeted against,” the Edinburg attorney said.

Edinburg Mayor Pro Tem Gilbert Enriquez took offense to that comment and said he asked Edinburg attorney Omar Ochoa to research the matter about a year ago.

“This is an item that is not politically motivated … It’s actually for future (officials). It has nothing to do with any current member on the council or the mayor. It can not be retroactive. So I want to make that clear,” Enriquez said. “Secondly, the citizens are the ones that are going to decide on this charter amendment. All we are doing, as the council, is providing them the opportunity to vote on this charter amendment.”

Additionally, Enriquez didn’t ask for a special election to be called or for the amendment to be included in the “next election cycle” so it wouldn’t affect the current council members and so that the city wouldn’t have to incur additional costs for an election, he said.

Still, he argued, there has to be some kind of accountability for elected officials indicted on a felony.

“And the only way that we are moving forward in a professional manner (and) people are going to want to come to Edinburg to do business, is if we have elected officials who are there to do the right thing,” he said. “That is the intention of this charter amendment.”

Councilman Johnny Garcia said he agreed with Enriquez, but still had concerns regarding the item and other portions of the charter. He suggested discussing the item behind closed doors in what is known as the executive session of the meeting.

But before anyone could address Garcia’s request, councilman David White said he wasn’t against the item, but also expressed concerns with due process.

Still, elected officials should be held to a higher standard, the former Edinburg police chief said.

“At least in the police department and the fire department, if you pick up some type of arrest, you don’t have to be totally indicted, you will be suspended… without pay… pending the outcome of the crime you’re being accused of,” White said. “So I don’t think we should be held to any lesser standard than what we expect our (civil service) employees to stand by.”

Enriquez spent a few more minutes discussing the item before finally saying, “I just don’t see how your due process is going to be violated … especially if it’s (an) automatic suspension.”

And without skipping a beat, Peña’s voice came through, seemingly from the abyss.

“I can explain that,” he said pointedly before city staff muted his mic and kicked him out of the Zoom call for a short while.

During that interaction, however, Enriquez’s mic was also muted for a few seconds, which gave the mayor the opportunity to address his concerns.

“I really question the timing. Yeah, we don’t have an election, but there is a pretty hot and heated school board election that’s going on right down the street,” the mayor said about the Edinburg Consolidated Independent School District race. “As a matter of fact, we have an item to move the meeting on Election Day to another date.”

Molina said there were more pressing issues at hand and suggested the item had been pushed through.

“In other words, it’s rushing, it’s moving too fast. I don’t want to end up in any legal issues,” he said.

On top of that, no other city is taking up similar measures, he said, specifically naming McAllen, Pharr, Mission and Brownsville.

“You know, the reason they probably don’t is because it causes those issues of due process,” the mayor said. “And I may or may not run again, so this might not pertain to me. And I’m glad you clarified that. But we don’t want people just making accusations.”

Molina then tried to cast doubt on the judicial system.

“I don’t think it’s hard for people to get indicted. All you need is an affidavit and a prosecutor willing to take the case,” he said. “If they don’t like somebody … and there’s a prosecutor there that doesn’t like any of us, we could all be indicted and removed.”

Even if there is a path to remedy the situation for an elected official who is wrongfully pushed out of office before a conviction, it could take time away from them, the mayor said.

“I know for me, I’ve wanted my name cleared for some time now,” he said.

Molina’s trial by jury was initially set to begin in June, but it was delayed due to the pandemic and a new date has not been set.

The mayor then turned the attention to Texas Attorney General Ken Paxton and drew a parallel between their legal misgivings: both have been indicted with felonies while serving public office.

“Our attorney general, who is the lead law enforcement officer in the state of Texas, currently he’s under a three-count indictment, and his office had a lot to do (with my investigation). And I’m not going to get into the specifics of my investigation, because my attorney said (so) — but he’s basically under indictment. Now the AG still holds his position,” Molina said. “So you have to understand that this office, right here, already has a black eye.”

The mayor then pointed to Paxton’s most recent scandal.

“Recently, the top seven of the AG’s office have accused him of bribery, they’ve accused him of abuse of power and some other potentially criminal offenses,” Molina said. “He, the AG, just like everybody else that’s under indictment, he has a due process of law, and that is a right to a speedy trial … So it’s almost like the rules only apply to the city of Edinburg.”

Prosecutors can also be politically swayed, Molina said, echoing similar sentiments he’s expressed about his own case.

“If they have a personal vendetta … it’s going to cause a lot of problems,” he said.

After a few more comments, Enriquez chimed.

“Grand juries are the ones who hear this evidence and you’re talking about fabricating a lot of evidence because someone doesn’t like us or like that current elected official,” Enriquez said. “To fabricate evidence and to prove something to a grand jury is probably difficult to do. I mean, I don’t know. I’m not an attorney, but I would just assume that our justice system is a lot better than that. Don’t get me wrong, there have been cases that that has happened, but I would say, very, very few.”

Enriquez then turned Molina’s argument on it’s head

“I would think that you would appreciate that if this was something that was done — not only here in the city of Edinburg, but in the state of Texas — our current attorney general would have either been suspended or removed for his felony indictment,” Enriquez said. “This is the reason we should do it because we don’t want people making decisions, and like you said, going after someone here in the city of Edinburg. You lose all credibility for that … (Paxton’s) credibility, after his indictment, is really shot. It’s gone. He has none.”

And as far as potential litigation, anyone can file a lawsuit for anything on the charter, Enriquez said.

“So if you’re going to use that as a justification (to) not to give this opportunity to the voters to decide on this charter amendment, then you guys are part of the problem,” he said. “I know for one, I’m not going to be worried about someone coming after me. Because if I know that I didn’t do anything, hey, all power to you, come after me. I’m going to go through it, and if I have to relinquish my seat, so be it. When I’m vindicated, I’ll run again. It’s real simple. I just don’t see anything wrong with it.”

And then a new line of questioning began.

“Mr. Enriquez, have you been arrested,” the mayor asked.

“Yes, sir. I have,” Enriquez replied.

“Were you guilty of something,” the mayor continued to probe.

“I was charged with theft, and the circumstances — it wasn’t a felony — the circumstances were presented, and I actually got it expunged because the evidence showed that I was right,” Enriquez said. “So yeah, again, anybody can get arrested, and you have the due process to go through it, but the thing is, it’s not a felony. There’s a difference between a misdemeanor and a felony, you know? And these are felony charges that we’re putting out to the voters to decide.”

Both of them continued to discuss the issue, with Molina noting that Enriquez appeared to be wrongfully accused based on false allegations.

“But mayor, it’s not allegations. You’re indicted by a jury of your peers,” Enriquez said at one point. “The difference between mine and yours was I wasn’t indicted by a jury of my peers. It’s a grand jury indictment, which means there’s 12 jurors there that are listening to the evidence.”

“It’s also a one-sided story,” Molina shot back. “I’m not able to go and speak out, or my attorney is not able to go speak out at the grand jury indictment. It’s a one-sided story, and there’s an old saying that you can indict a ham sandwich. If you’ve ever been around law enforcement long enough, or prosecutors long enough, it’s very, very possible.”

And while they disagreed on many things, they agreed on one.

“There’s a possibility for everything, I agree… especially in law,” Enriquez said.

A few minutes later, Jorge Salinas called for a vote to kill the item. It failed on a 2-2 vote because Garcia abstained. Garcia then made a motion to take the item into executive session because he said he was still concerned the amendment could be unconstitutional.

That motion initially failed, but was later approved. And after about an hour-and-a-half of closed-door discussion, the council returned to vote on the measure. It passed with a 3-2 vote, with Garcia serving as the swing vote and Molina and Salinas voting against it.