A late night motion filed to prevent the case against former Edinburg Mayor Richard Molina from going forward failed Thursday after a judge ruled against it, allowing the trial to proceed as planned in about a week’s time.
Visiting Judge Carlos Valdez denied a motion filed by Molina’s attorneys to quash the prosecution in the case against Molina in which he is facing 11 counts of illegal voting and one count of engaging in organized election fraud.
The motion to quash argues that the prosecution lacks constitutional authority and points to a recent ruling by the Texas Court of Criminal Appeals, State v. Stephens.
The opinion of the appellate court, published in December 2021, states that “the Attorney General lacks constitutional authority to independently prosecute a crime in a district or inferior court without the consent of the appropriate local county or district attorney by a deputization order” and that “the authority of the Attorney General is limited to assisting the district or county attorney upon request.”
The relevance of the Stephens case stems from how the case against Molina was first investigated and now is being prosecuted.
The Texas Attorney General’s office took up the case after Mary Alice Palacios, the aunt of District Attorney Ricardo Rodriguez Jr., filed a voter fraud complaint against Molina with the Texas Secretary of State’s office following the 2017 municipal election in which Molina was elected mayor.
Molina’s attorneys filed a motion to disqualify Rodriguez from prosecuting the case, arguing there was a conflict of interest due Rodriguez being related to Palacios.
The defense argued that Palacios had an ax to grind against Molina because she lost an insurance contract with the city after he was elected.
During a hearing in November, both Rodriguez and Palacios testified that they had not spoken to each other about the complaint she made to the secretary of state’s office.
Rodriguez also testified he had not assisted his aunt with the complaint in any way and she testified that no one had helped her with the complaint.
But also during that hearing, the district attorney’s office acknowledged it was the attorney general’s office that launched the investigation into Molina and then reached out to the DA’s office for assistance.
Jerad Najvar, one of the attorneys representing Molina, emphasized that point during Thursday’s hearing, noting that under Stephens, the AG’s office cannot unilaterally prosecute a criminal case and that they can only assist in prosecuting a case if they are deputized by the district attorney’s office.
“We’re in a conundrum, your honor, because the state can’t have it both ways,” Najvar said. “But as it stands now, there is definitively no evidence in the record showing that (Assistant Attorney General Jonathan) White is legally participating under the deputization of the DA.”
“They have, in fact, argued the exact opposite — as if the attorney general’s office is leading this prosecution and initiated it and Mr. Rodriguez is just serving at their assistance,” Najvar said, referring to the DA’s arguments during the hearing in November.
In response, Assistant District Attorney Michael Garza went back to basics by reviewing the definition of “prosecution.”
“It’s a criminal action, a proceeding instituted and carried on by the due course of law before a competent tribunal for the purposes of determining guilt or innocence of a person,” Garza said reading from Black Law’s Dictionary.
“The operative word in there is ‘before a tribunal’ so anything that happens prior to that is an investigation,” Garza said.
He noted that the letter from the attorney general’s office asking for assistance from the district attorney’s office was sent at least a year before there was ever an indictment.
“And if you look at that letter and you look at the language in that letter, it very clearly says he is requesting our assistance in the investigation and any resulting prosecution that may come,” Garza said. “Not in the prosecution because we didn’t know at that point whether there would be one.”
Garza added that while the attorney general’s office launched the investigation, it was the district attorney’s office, specifically Garza, who presented the indictment to the grand jury.
“The AG nor any of its lawyers were present in that hearing and a proper empaneled grand jury made a decision to render a true bill in this case,” Garza said, “and at that point, the prosecution starts.”
It was shortly after that that White, the assistant attorney general, filed a notice to appear as counsel in the case.
“If he is entering and appearing in a case, that means that case has already been established, that means that somebody else already brought it,” Garza continued. “He’s giving notice to the tribunal: he wants to join in.”
“But he goes even further in that notice to the court, and that’s what’s before you and before the public, and that is that he says ‘I will assist Lead Prosecutor Assistant District Attorney Michael J. Garza in the prosecution of this,’ clearly identifying what his role (is) and that he’s coming in to assist,” Garza said.
Najvar repeated his accusation that the district attorney’s office wants to have it both ways.
“When we moved to disqualify the district attorney’s office, they affirmatively minimized their role in this prosecution and investigation by aversion to the attorney general’s authority,” Najvar said.
He argued that Molina needed to know who the lead prosecutor was in the case in order to make the proper arguments and because it was critical to the constitutional authority of the prosecution.
“It’s too late for them to deputize Mr. White at this point and act like it corrects all of the prosecution’s actions that have happened to this point,” Najvar said. “My client’s entitled to know who is making certain critical decisions up to this point because if it was the AG’s office and Mr. White, that was unconstitutional and that’s tainted this entire prosecution.”
However, the judge believed it was pretty clear from the start that Garza was the lead prosecutor in the case and the only question left was whether or not White would be participating.
“If he’s going to participate, he has to be deputized by the District Attorney’s office as a special assistant district attorney,” said Valdez, the visiting judge.
Despite Najvar’s request for an evidentiary hearing on the motion to quash, Valdez denied it at the conclusion of Thursday’s hearing.
But with this latest decision, Najvar said the defense will likely again seek the disqualification of the district attorney’s office from the case.
He said that if it is the position of the DA’s office that they are the lead prosecutors in the case, that “means that (Rodriguez’s) personal relationships cannot be avoided by reference to the AG’s authority.”
“If they’re going to try to deputize Mr. White, the AG has to be working under Rodriguez’s supervision and not the other way around,” Najvar said. “So I want to put on the record that we do intend to re-urge those motions, the motion to disqualify.”
For now, the case against Molina is scheduled to hold jury selection on Aug. 12 and to begin trial on Aug. 16.
