Ethics complaints, FBI tollway probe resurface in governor’s race

Dave Montgomery Austin Correspondent

AUSTIN – The Austin-based unit charged with investigating alleged wrongdoing by public officials has dropped a 2012 complaint against state Sen. Wendy Davis after concluding that it lacked jurisdiction in the case, according to the unit’s top official. The complaint, filed by her Republican opponent during Davis’ 2012 Senate re-election campaign, charged that the work Davis’ law firm performed for the North Texas Tollway Authority influenced her votes on legislation backed by the agency. Davis has denied the allegation.

Assistant Travis County District Attorney Gregg Cox said the DA’s public integrity unit spent “some time reviewing everything we gathered” in the case after then-state Rep. Mark Shelton of Fort Worth filed the complaint. But the office ultimately concluded “that we didn’t have venue,” Cox said. “So we closed it.” Shelton’s complaint focused on the Newby Davis law firm, which Davis formed in March of 2010 with Brian Newby, who once served as Gov. Rick Perry’s chief of staff in the governor’s office. Following standard policy, the public integrity unit took no action on the complaint while the 2012 race was underway, Cox said, but opened a preliminary investigation after the election, which Davis won. The district attorney’s office made no public announcement regarding its decision to drop the case but the outcome came to light after news organizations recently began asking questions about the status of the complaint.

Shelton, currently facing a May 27 runoff for the Republican nomination in District 10, was notified about the outcome of the case in a Sept. 25, 2013, letter from Assistant District Attorney Holly Taylor, according to the Austin American-Statesman. Ethics issues raised in that acrimonious 2012 campaign are resurfacing in Davis’ current race for governor against Republican Attorney Gen. Greg Abbott. Davis, as she did in 2012, has repeatedly denied wrongdoing, saying that her law firm’s work for the tollway authority constituted proper representation of a constituent. Cox said the public integrity unit learned of an ongoing FBI investigation into the North Texas Tollway Authority during its preliminary inquiry into the Davis complaint. Travis County investigators were asked to keep the information about the FBI probe confidential, prompting the DA’s office to challenge a subsequent open records request for its files in the Davis case, Cox said. The Dallas Morning News, which filed the open records request, has reported that documents related to Davis’ legal work for the tollway authority are part of an FBI investigation but the newspaper said it was not clear whether Davis’ work was a focus of the FBI’s probe of the agency or only a part of it.

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“Any suggestion that Wendy Davis is the subject or target of any investigation is inaccurate and irresponsible,” Davis campaign spokesman Zac Petkanas said of the Abbott campaign’s efforts to capitalize on the story by tying Davis to an FBI probe. The Morning News cited a March 24 letter in which the Travis County Attorney’s Office, a separate county department that represents the DA’s office in open records requests, said releasing files in the Davis case would interfere with an open FBI investigation. Cox, responding to press inquiries about the Dallas Morning News report, said his office received information from the FBI but did not “refer” any information from its Davis inquiry to the FBI or any other enforcement agency. “We had information in our file that we learned from the FBI and we were seeking to protect that information,” Cox told the Business Press.

Cox, who oversees the public integrity unit as head of the special prosecution division, said his office “reached out” to the FBI after receiving the Shelton complaint and following news accounts that the FBI had been looking into possible conflicts involving tollway authority board members. Travis County investigators, he said, wanted “to see if there was any sort of intersection there.” “So the FBI shared information with us, expecting us to keep that confidential, and that information was in our files, but it related to their ongoing investigation of the NTTA,” he said. “We ultimately determined that we didn’t have venue, nothing being complained about happened in Travis County, and we backed out and shut our investigation down.” The FBI began looking into the North Texas Tollway Authority in 2011, according to press reports. Cox said the county attorney’s office confirmed this year that an FBI investigation “is still open” but he said he was not at liberty to provide details or discuss the scope of the federal inquiry. “I can’t really go into what they told us or gave us,” he said. “They asked us to protect all that. “ Kenneth Barr, chairman of the tollway authority’s board of directors and a governmental relations consultant who served as mayor of Fort Worth, said agency representatives have decided not to discuss the case. “We just decided that it’s not in the NTTA’s best interest to discuss it,” he said. “We don’t know what they’re up to or where they’re going, or anything about it. “We’ve had some communications with them,” he said, “but I’m not at liberty to talk about it.”

Davis, who has represented Senate District 10 in Tarrant County since January 2009, entered the governor’s race in October after gaining national attention over her filibuster of a Republican-led bill toughening regulations on Texas abortions. A poll released this month by Public Policy Polling of North Carolina showed Abbott leading Davis, 51 percent to 37 percent. Separate from the complaint filed with the Travis County public integrity unit, Shelton also filed a 2012 complaint with the Texas Ethics Commission accusing Davis of “not disclosing her business relationships with state lobbyists.” The agency initially kicked back the complaint, saying it failed to meet “legal and technical form requirements,” but Shelton resubmitted the document with supporting materials. “The ethics complaint is still pending,” Shelton told the Business Press. “And the reason I know that is they have to send me a letter quarterly telling me the status of it and as of this second, I have not received a letter telling me that it’s been resolved.” Ian Steusloff, assistant general counsel for the commission, said the ethics regulatory agency is required to notify both the person who lodges a complaint and the person targeted in a complaint when the case is resolved. But he said he could not comment specifically on the Shelton complaint since agency inquiries are confidential. “This frivolous complaint was filed by Sen. Davis’ 2012 political opponent a week before the election in a desperate last ditch effort to save his losing campaign,” said Petkanas. “Not only has the commission never taken any action on it but the underlying administrative error that prompted the complaint had already been corrected months before.” The complaint, filed on Oct. 27, 2012, said that Davis failed to report on her personal financial statement that Newby and employee Marcy Weldon were registered lobbyists for the Newby Davis law firm. Petkanas said Davis was initially unaware they were registered as lobbyists, but after learning the information, amended her personal financial statement within the 14 days allowed for making such corrections. Petkanas said that Newby and Weldon registered “out of an abundance of caution” but never lobbied for the firm.