FEDS TO SALAZAR IN HOUSTON: "WE HAVE A PROBLEM..."

 By Juan Montoya

One of the unintended consequences of the Dr. Sylvia Atkinson bribery and conspiracy trial may well be a final determination whether her defense attorneys Noe Garza and Dale Robertson will be able to count on Brownsville Independent School District's Houston-based legal counsel Baltazar Salazar as a defense witness.

In the waning hours of last week's testimony, the federal prosecutors led by U.S. Attorney Jody L. Young questioned whether Salazar had really been cleared of a 1985 felony conviction for theft by a local district judge who granted his attorney's request for  early termination of his probation which he in turn claimed had resulted in his felony conviction being "set aside."

The long-festering question has dogged Salazar since 2011, the first time he applied for employment with the district and the BISD Human Resources office deemed him ineligible to be a district – not the board's counsel – lawyer. 

Despite this, on April 2, 2013, a majority of the BISD board made up of , then-trustees Otis Powers, the late Enrique Escobedo, current board president and Minerva Peña and former trustee Jose Chirinos chose him over hugely more experienced firms and now commands a $300,000 salary second only to Superintendent Dr. Rene Gutierrez. 

The late Escobedo acknowledged at the time that Salazar lacked educational issues expertise but that he knew how to "roll with the flow."

Only Catalina Presas-Garcia and Luci Longoria voted against his hiring citing his firm's shortcomings on more than a dozen categories vis-a-vis competing firms. 

Court records show that On February 26, 1985, a judge (107th District Court) found him guilty on 85-CR-23-A, a charge of felony theft by check. The judge found him guilty and sentenced him to a three year prison sentence probated to seven years. He appealed the judgment to the 13th Court of Appeals and the court affirmed the trial court's conviction on May 1986. (13-85-181-CR)

On April 24, 2012 – about a year before he was hired as board counsel – lawyers for Salazar filed a petition for expunction of the criminal case. A Cameron County Asst. District Attorney representing the state told the court that Salazar was given "county jail and probation" during a 2012 hearing on two of the cases (83-CR-416-A and 85-CR-450-A), but referred to certain "certified copies" of documents purporting to show that the cases had been "set aside," but neither she nor Salazar presented such evidence to the court.

Despite the fact that once a defendant serves community probation expunction is not statutorily permitted, the court granted the motion and on June 26, 2012 107th District Court  Judge Benjamin Euresti ordered that all law enforcement agencies including the Brownsville Police Department, the Cameron County District Attorney's Office, the Cameron County District Clerk, and the Texas Dept. of Public Safety, among others, to seal all documents related to the arrests and convictions.

Less than six months later, on Dec. 20, 2012, attorneys for the DPS appealed Euresti's order granting the order of expunction to the 13th Court of Appeals and said Salazar had not presented evidence to satisfy the requirement that he did not receive community supervision and therefore could not have his record expunged. (See graphic at left. Click to enlarge.) 

The 13th Court of Appeals sided with the DPS on August 15, 2013 and reinstituted the felony conviction and denied the expunction of his criminal record. https://law.justia.com/cases/texas/thirteenth-court-of-appeals/2013/13-12-00771-cv.html

This is not news to Atkinson's attorneys. In fact, it was Robertson who filed the appeal to the 13th Court of Appeals after his conviction back in 1985. The appeal was denied.

Yet, up to today, Salazar has produced no record that he had received judicial clemency that has erased the conviction. But a review of the record – now that the records have been returned to the district court clerks' office for public access after the expunction was reversed – indicates that his claim that his felony was erased (set aside) is a slim, or nonexistent, hook indeed.

The first mention of the term "set aside" comes on a handwritten notation on the back of a proposed order for early termination of his conviction. It was prepared by lawyer Lawrence Walsh and filed in the 10th District Court then presided over by Judge Gilbert Hinojosa. But it doesn't mention "set aside" only about being "hereby discharged from said probation."

It is in the next proposed ordered filed by Walsh that the term "set aside" is included in the petition for probation termination and raises questions by the court's clerk who asks Hinojosa in a handwritten note whether the term should be included since it's a petition for early termination of probation and not clemency for the felony.

We don't have a written reply from Hinojosa to the clerk, but the next document in the case file indicates that he signed it and included the term "set aside" that the clerk had questioned.

Neither the DPS nor the 13th Court of Appeals bought this interpretation and ordered the reversal of the  expunction of the felony and that the files be returned to the district court clerk office. According to their order, the felony stands. Was this just one more case of judicial corruption and back-room deals that have chronically plagued Cameron County?

Will the federal government prosecutors and the judge come to the same conclusion as the DPS and 13th Court of Appeals did and discredit a convicted felon who wants to testify on behalf of Atkinson in her bribery and conspiracy trial? And if they do, will it mean the end of the the long-festering Salazar charade at the BISD?