Commissioners enter pretrial diversion program in Open Meetings Act case

By Michael Rodriguez
Valley Morning Star
Originally published March 12, 2015

WESLACO — At least some semblance of finality in the Weslaco city commissioners’ Texas Open Meetings Act case was achieved on Thursday when the elected officials accused of violating the act agreed to enter a pretrial diversion program.

The decision came at a pretrial hearing held inside Judge Bobby Flores’ 139th State District Court in Edinburg, where the defendants — former commissioner Joe Martinez and ex-Mayor Pro Tem John Cuellar, together with current commissioners David Fox, Lupe Rivera and Jerry Tafolla — agreed to the conditions of the program for one year. After that time, the case will likely be dismissed should the defendants meet pretrial diversion requirements.

Assistant District Attorney Orlando Esquivel of the Hidalgo County District Attorney’s Office confirmed that the conditions stipulated in the program, which is in effect for each defendant, include up to two years of probation, the completion of 40 hours of community service, a $250 pretrial diversion fee, $260 in court costs and a $60 monthly probation fee.

The defendants must also be subjected to random drug testing and cannot frequent any bars or establishments where 51 percent of sales are for alcohol; nor can they associate with someone “of ill reputation.” In addition, Hidalgo County District Attorney Ricardo Rodriguez said the current and former commissioners in question must return to court in six months.

“The same conditions that are set in probation will be set in this case,” Rodriguez said. “In six months, they’ll come in for an evaluation to make sure all requirements of pretrial diversion are met. If they follow the conditions, they stay in the program. If they don’t, they’re out of the program. And just like anyone else that’s placed on this program, they have an opportunity to have the case dismissed.”

Attorney for the defendants Javier Peña said the evidence in the case “didn’t require a plea.”

“Put them in pretrial diversion, where they’ll kind of be supervised in a quasi-probation program, and if they comply with no further issues, the case will be dismissed,” Peña said. “So instead of a long, drawn-out trial for all involved — the state, the citizens and my clients — this will bring closure to everybody.”

The former and current commissioners in question were indicted by a grand jury in February 2014 for allegedly violating the Open Meetings Act, a Class B misdemeanor punishable by a fine of up to $500 and as many as six months in county jail, by removing citizens from a November 2013 commission meeting. Also, the meeting room’s doors were reportedly blocked from entry with only city employees and city-created development corporation staff still in attendance.

The Open Meetings Act holds that any gathering of a quorum of elected officials to discuss business must be open to the general public.

Peña, however, has long argued that his clients didn’t intentionally clear the meeting room when members of the audience became disorderly. According to Peña, it was Frank Garza, the attorney for the original complainant, Benita Valadez, who instructed then-Police Chief Michael Kelly to remove the audience members from the meeting room.

“There’s no plea of guilty in this case,” Peña stressed. “A lot of times, the program is offered to most first-time offenders at the DA’s discretion because they don’t judge the guys to be career criminals. Usually, if you just made a mistake, they’re going to give you a chance to prove you’re not a bad person without affecting your record for the rest of your life. And from reading the affidavits and knowing the facts of the case, there’s very high likelihood they were set up and didn’t actually clear the room.”

Rodriguez viewed the case similarly.

“Unfortunately, it was a bad situation for the city commissioners,” Rodriguez said. “Obviously they conducted the meeting after they had taken out the citizens of Weslaco, which, at the end of the day, they shouldn’t have proceeded forward with the meeting. That’s something that not only city officials in Weslaco should be aware of, but any other government that’s required to post meetings. So based on what happened, we felt that being that it was a Class B misdemeanor, this was the best way to dispose of the case.”

The DA added, “It should be beneficial for all governmental entities to be advised in the Open Meetings Act laws, that way something like this won’t happen again. Being that they accepted responsibility as well, based on the charges, we feel that this was the best way to turn this page and finally put an end to the case.”

When asked if she was pleased with the outcome, Valadez said, “I’m happy with the way the DA handled this particular case, because it’s actually a lot more than what I thought they were going to get. This sends a strong message not only to this particular community, but to every elected official that every action has a consequence.”