El Paso District Attorney facing potential criminal charge for alleged misuse of state funds

El Paso News

Editor’s Note: This article has been updated to reflect it was not the County Commissioners Court who forwarded an audit to the Texas Ethics Commission.

EL PASO, Texas (KTSM) – An expense of $2,600 in civil forfeiture funds could lead to a criminal charge against District Attorney Yvonne Rosales, according to an opinion from the Texas Ethics Commission (TEC).

The County of El Paso’s Office of the Auditor’s office conducted a recent audit of the District Attorney’s Office civil forfeiture spending.

The auditor’s office made “observations” in civil forfeiture fund spending by the DA’s Office and attached a memo of findings to an audit on the county commissioners court’s agenda on Nov. 15. The memo also states expenses of $2,604 made by the DA’s office were similar to items under review by the TEC.

The auditor noted on the memo that the purchase and distribution of work t-shirts and children’s badges for “junior investigators,” was under review by the state watchdog.

A children’s badge printed by the DA’s Office.

The Commissioners Court approved sending the annual audit of civil forfeiture spending by the district attorney’s office to the Texas Attorney General’s Office, as required under state laws, during a November 15 meeting in the governing body’s consent agenda.

An opinion from the TEC states an employee of a “multi-county district attorney’s office,” asked the watchdog to review the DA’s expenses. A spokesman for the TEC told KTSM 9 News the identity of requestors is not shared with the public to protect the review process.

Ahead of the TEC’s December 9 meeting, a summary opinion of the issue was posted onto the commission’s agenda. It states that the district attorney’s expense for the items could be a misuse of public resources.

Under review are pens, tote bags, children’s badges, and t-shirts with DA Yvonne Rosales’ name printed prominently on them. The items did not display the image of the El Paso County District Attorney’s Office seal.

“But we note that each logo not only identifies the office but also prominently includes the name of the current occupant of that office,” the summary opinion states. “This type of promotional item would lead one to believe that its purpose ‘was to support the incumbent,’ regardless of the timing, COPIED FROM KTSM 9

Consequently, to use government resources for their creation and distribution would constitute a misuse under section 39.02(a) of the Penal Code.”

The section the TEC cites in its opinion is about “Abuse of Official Capacity,” which is a state jail felony if the value of the use of the thing misused is $2,500 or more but less than $30,000. State jail felonies carry a potential sentence of 180 days or two years in a Texas facility.

Rosales was informed about the county’s audit on October 27, where she was notified of the audit’s scope and expenses. An internal auditor memo had a copy of the Chapter 59 review of civil forfeiture funds. COPIED FROM KTSM 9

Civil forfeiture funds come from seizures by the state when property is suspected of being part of a crime.

In an email obtained by KTSM 9 News, Rosales criticized the county’s internal auditor and claimed it was biased, and accused the county of conducting the review without her consent. COPIED FROM KTSM 9

“I am deeply disappointed that the memo that will be submitted without my consent is clearly biased in nature as it does not properly reflect the series of events that transpired prior to the purchase of the items, which are similar to items that the prior administration made over the course of 28 years but was never questioned by human resources,” Rosales wrote. “Is this gender discrimination, a lack of due diligence on the part of the auditors to properly advise a new administration when seeking guidance prior to making any purchases with forfeiture funds? [sic]” COPIED FROM KTSM 9

KTSM 9 News has reached out to the El Paso County Commissioners Court for comment and Texas Attorney General’s Office.

District 78 State Representative Joe Moody told KTSM 9 News laws around civil forfeiture funds were tightened in the state legislature to address concerns of how the dollars are spent.

“These funds are available for the preservation of enforcement and administration of the laws of Texas. That’s what they’re for. The fact that you’ve got the top prosecutor in our county not being able to figure out whether campaign swag fits in that category is in of itself is very problematic. I think should shake public trust.”

In the TEC’s opinion, Rosales’ case would not be subject to the Texas Election Code because her position is not cited within that part of the Texas Government Code. The TEC’s opinion states the elections code applies employees and officeholders belonging to “political subdivisions,” including counties, states, or cities.

“Like district judges, district attorneys are officers of state government. The Government Code’s
definition of “State prosecutor” includes each ‘district attorney,” the opinion states. “District attorneys receive their salaries ‘from the state,’ while county attorneys are ‘paid by the county.” COPIED FROM KTSM 9

The TEC says while the Elections Code may not apply to District Attorneys, the Penal Code does. And, it applies to all “public servants.”

“Therefore, section 39.02(a)(2) of the Penal Code applies to district attorneys, prohibiting them from intentionally or knowingly misusing “government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment,” the TEC’s summary opinion states.

KTSM 9 visited the District Attorney’s office in Downtown El Paso at 3:30 p.m. Tuesday to ask Rosales for comment, the assistant at the office advised KTSM that the DA had “just left” and no one was available to speak with us. When KTSM requested DA Rosales’ spokesperson, Paul Ferris, we were told he too, had left for the day.

In an email, KTSM has also reached out to the District Attorney’s Office for comment and will update this story if a statement is received.

Look for the latest video and information on this case on KTSM 9 news at 5, 6, 6:30 and 10 p.m.

LINKS BELOW ARE TO PREVIOUS KTSM 9 COVERAGE OF THE DA’S OFFICE

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