WAXAHACHIE — Constable Mike Jones, for the time being, will remain in office serving the residents of Ellis County Pct. 4 after the Ellis County and District Attorney’s Office dropped a civil case seeking his removal from office.
The office filed a motion of nonsuit with the 40th Judicial District Court on May 15.
In the civil case, the petition for removal was filed against Jones on Feb. 27. The motion, if granted by the court, would have suspended Jones from office and appointed a temporary replacement pending a trial.
In a voluntary statement written May 2 by Jones to the court, the constable admitted to improperly using county equipment but said he did not realize a law was being broken.
“I didn’t realize at any one instant that I was committing an offense. I simply used what was close at hand at the time," Jones wrote. “Upon being brought to my attention, I have no reason to doubt that there have been times when that was done.”
According to the notice of nonsuit, the district attorney’s office brought the civil removal against Jones under Chapter 87 of the Texas Local Government Code, which deals with removal of county officers from their post and the filling of vacancies.
“The [DA's office] sought to remove the defendant from his office as Constable Precinct 4 of Ellis County, Texas because of his alleged official misconduct and incompetency while in office,” the notice of nonsuit document stated. “ The initial purpose of this civil action was to seek the removal of the defendant from his office as quickly as possible because of the serious nature of his alleged offenses. However, after several hearings in this matter, the defendant has not been suspended and the earliest point at which the defendant could be removed from his office would be after a civil jury trial.”
The document continued stating that the trial was set for Sept. 11, which was not long before the anticipated jury trial date of the Jones' criminal case. The district attorney’s offices determined to nonsuit and dismiss this civil action without prejudice. Efforts by the district attorney's office would now be concentrated on the pending criminal prosecution of Jones.
Before the tampering charge, Jones was indicted by an Ellis County Grand Jury for allegedly abusing his official capacity, which is a Class A misdemeanor, according to the original Daily Light article published May 16, 2016.
Documents from the Ellis County District Clerk’s Office state Jim Jordan, who is the judge of the 160th District Court sitting by assignment for the 40th Judicial District Court, ordered the case dismissed without prejudice on May 16.
“In a nutshell, the civil action had been pending going on three months now and we were still at the status quo. The intent in filing the removal action was to try to get him removed from office as quickly as possible because of the nature of the charges against him. The statute allows a judge to remove the subject of a lawsuit, the office holder; while the civil lawsuit is pending before the determination is made regarding the permanent removal,” Wilson said. “We have had a series of hearings and the judge assigned our request to remove Jones temporarily while the suit was pending. So the earliest that we could hope to get a removal on Jones is now September when a trial date was set in that civil cause of action.
"That is getting near the date of when we think the criminal case is going to be set. So at that point, it is just a duplication of effort on our part with no greater benefit at the end of it. So we just decided to focus our resources on the criminal prosecution, which if successful will result in his removal anyways.”
'THROWN IN THE TOWEL'
Jones attorney in the civil case, Dan Gus, said he is pleased by the outcome for his client.
“The DA’s office had thrown in the towel and dismissed its civil lawsuit, the party that filed the suit can just, at their option, dismiss it. It is a simple thing all you have to do is file a notice of nonsuit. It is just a one-sentence document. That is what you typically see. What they did, in this instance, they dressed up their notice of nonsuit,” Gus said. “We had taken it up to the supreme court of the State of Texas because the judge denied some of our motions that we felt could be immediately reviewed by the supreme court. The Supreme Court accepted our filing yesterday (May 15). We filed it on Friday (May 12)."
Gus said before the district attorney’s office dropped the civil case he was taking the case through what is called a mandamus proceeding.
“We did a mandamus in the court of appeals first in Waco. They just denied the petition. They said we see the relief that you are requesting and we are denying the ruling that you’re asking for without reaching the merits you're asking for.
"What a mandamus proceeding is, is technically a lawsuit against the judge. You're complaining that the judge abused his discretion in making certain rulings and that there would not be adequate remedy by appealing the issue at the end of the case," Gus explained. “It was denied the very next day. Very unusual. I have never had that happen before. So we filed in the Supreme Court on Friday. Then the Supreme Court filed out notices to everyone saying ok this had been filed and this is gearing up. I was excited to get a ruling from the Supreme Court. It would have been shocking not to have the Supreme Court rule in our favor in that. The law is very, very clear in that.”
Gus said the actions alleged by the district attorney’s office claim to be done by Jones — such as the misuse of the county-issued computers and iPhone and erasing of the iPhone — happened months before he was reelected in November.
"The Supreme Court that section 87.001 of the Texas local government code precludes removal, civil removal for acts that precedes the election,” Gus explained. "They said but in the case of a criminal conviction that section does not apply. So that was the reasoning.”
Gus added that Judge Jim Jordan did rule that the use of the county-issued computers and iPhone were pre-election uses and were tossed out. However, Jordan ruled that the erasing of the iPhone was not tossed and was appealed to the Texas Supreme Court by Gus.
In his voluntary statement penned May 2, Jones stated, “I cannot recall how many emails were sent concerning my county email or my election campaign. I also do not recall ever using the county tax exempt ID during any ‘noncounty purchase.’ I am not familiar with the county policy on emails but admit I should have taken more care in sending or receiving emails not connected with my office.”
Jones also states that he didn't know that a personal decal stating his views on the second amendment was not allowed and was not an advertisement for a business of his but it was simply his personal statement. He also wrote that he used down time at the office to work on items for his political campaign.
Gus stated the dropping of the case means that Jones is not subject to immediate removal from office without any conviction or trial on the criminal charges. It also allows Jones to continue to serve and not have to deal with civil proceedings.
“Now there is only a criminal case left. That is a much tougher case to prove because the standard of proof is much higher. You have to prove guilt beyond a reasonable doubt in a criminal case,” Gus noted. “ In the civil removal case, all they have to do is to prove official misconduct by a preponderance of the evidence. So it is much easier to win a civil case than a criminal case.”
According to the petition for removal, an investigation conducted by the Ellis County and District Attorney’s Office found that Jones remotely purged his county-issued Apple iPhone and iCloud after it was seized as evidence. The two computers and smartphone remained in the secure possession of Wilson’s office until they were transported to a forensic laboratory for analysis. The three items were seized on May 3, 2016.
In October 2016, the forensic laboratory notified the district attorney’s office that Jones’ county issued iPhone had been remotely erased and all data on the phone had been deleted.
“On Dec. 6, 2016, in response to a lawfully executed search warrant, Apple provided my office with the exact date and time on which Jones’ Ellis County-issued iPhone was remotely erased through the company’s iCloud. Apple also provided the internet protocol address from which the command to remotely erase the iPhone was sent,” stated Ellis County and District Attorney Patrick Wilson in the petition. “According to the information from Apple, Constable Jones’ Ellis County-issued iPhone was remotely erased on May 3, 2016, at 7:05 p.m. after the iPhone was taken into my office’s possession. The command to erase the phone was sent from email address firstname.lastname@example.org, the personal email address of Mike Jones.”
The petition also stated that, on Jan. 18, AT&T provided the district attorney’s office with the physical address and subscriber information connected to the IP address from which the command to erase the county issued iPhone was sent. The subscriber information and physical address both belonged to Jones. The address was his personal residence in Midlothian.
According to a Feb. 10 Daily Light article, Jones was indicted by the Ellis County Grand Jury on the charge of tampering or fabricating physical evidence with intent to impair. A warrant for arrest was issued by the 443rd Judicial District Court Thursday, Feb. 9 also notes Jones turned himself into Midlothian Police at 3 p.m on the day of its issuance.
THE CRIMINAL CASE
Gus stated that the other half of the case the district attorney’s office was alleging was incompetency by Jones after he was elected.
“Incompetency is defined in the statute and what they alleged didn’t rise to the level of incompetency. What the district attorney's office alleged is he had not attended any session of the justice court in 2017. Patrick Wilson admitted that he didn’t know anything about that. He is not there to see that. In fact, he was there for every session of court in January, the first several sessions in February,” Gus clarified. “What happened is when the district attorney’s office issued that felony indictment in February. Mike stopped everything and said, 'I need to go to the Texas Commission on Law Enforcement and get guidance on what I can and cannot do in light of that felony indictments.'"
Gus explained that Jones exercised caution until he got a ruling from TCOLE and suspended himself from his official duties. Once he was cleared by TCOLE, Jones returned to work around March 8 and resumed his duties. During this, a substituent was found to act as bailiff in the court.
“They allege that was incompetence, but that is not incompetency under the statute. The statute is gross incompetence of your duties, gross negligence in the performance of your duties or some mental or physical defect that renders you unable to perform your duties. So they didn’t allege any of those things. That is not incompetence,” Gus said. “Incompetency is what you see with the district attorney in Dallas, Susan Hawk, who has some severe mental health issues that interfered with her ability to do the job. That is incompetence. Taking three or four weeks off to get some legal guidance about what you can or cannot do when you are facing a felony indictment that is prudence, not incompetence.”
Wilson said the dropping of the civil case would have no effect on Jones criminal cases. The district attorney’s office did file a motion in the criminal case for District Judge Cindy Ermatinger of the 443rd Judicial District Court to recuse herself from the case.
According to documents from the Ellis County District Clerk's Office, Ermatinger signed the order of referral on May 9 to recuse herself. Wilson added that the cases were then assigned to the 40th Judicial District Court.
According to the District Clerk’s Office website, Jones' final pre-trial in his tampering or fabricating physical evidence case and abuse of official capacity case is set for July 13 in the 40th Judicial District Court. Mark Griffith is representing Jones in the criminal cases.
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