Judge uncertain whether to appeal ruling on Guerra investigation

RAYMONDVILLE — State District Judge Migdalia Lopez has not decided whether to appeal an appellate court ruling that found she improperly appointed a special prosecutor to investigate Willacy County District Attorney Juan Angel Guerra, her attorney said Monday.

Yolanda de Leon, the former Cameron County district attorney, said she and Lopez will decide whether to appeal the ruling to the Texas Supreme Court.

Late Friday afternoon, a three-judge panel of the Texas 13th Court of Appeals ruled Lopez improperly appointed special prosecutor Gus Garza to lead the investigation that resulted in a grand jury to hand down three felony indictments against Guerra in March.

In the majority opinion, Justice Linda Yañez ruled that Lopez “abused her discretion” in appointing Garza because the probe called on him to investigate voter fraud charges against Guerra stemming from a 2004 election in which Garza opposed Guerra.

In a dissenting opinion, Justice Gina Benavides rejected Yañez’s ruling, finding Garza’s role as special prosecutor posed no conflict of interest.

The court’s ruling was based on a two-day hearing in April before a three-judge panel.

But the justices overruled five of Guerra’s six arguments, de Leon noted.

Monday, attorneys continued to try to interpret the 91-page majority opinion.

“What’s there to understand?” Guerra said. “I won, they lost.”

The ruling will nullify the indictments against him, Guerra said.

The ruling authorized state District Judge Manuel Bañales, the Fifth Judicial District’s administrative judge, to rule on the validity of three felony indictments against Guerra, said Gilberto Hinojosa, the former Cameron County judge who represents Guerra.

In June, state District Judge Manuel Bañales ruled Garza’s failure to take an anti-bribery oath in a different case voided felony indictments against defendants in that Garza prosecuted, Hinojosa said.

The oath that Garza was supposed to take to serve as special prosecutor in the case should have been the oath that would have allowed him to work as special prosecutor in Guerra’s case, Hinojosa said.

As he mulls legal questions that will determine the ruling, Bañales will rule on whether the grand jury had the power to hand down indictments against Guerra, said John Blaylock, a Harlingen lawyer who served as assistant district attorney under Garza, a former Willacy County district attorney.

“Here’s the real question he has to ask: Did they have the power and authority to issue those indictments in spite of the fact that Gus Garza was assisting them?” Blaylock said.

The court ruled in favor of Lopez on the central question of whether Lopez could appoint a special prosecutor to lead the grand jury’s investigation, Blaylock said.

“The court said we were right on the law. They just didn’t like the choice,” Blaylock said. “The law was not as Guerra and Hinojosa said it was. In fact, the judge could appoint an attorney pro tem to assist the grand jury in the investigation of Guerra.”

In the ruling, Yañez overruled Guerra’s arguments that Garza’s position as Cameron County justice of the peace disqualified him from serving as special prosecutor in Willacy County.

Yañez also overrulled Guerra’s argument that Lopez failed to have Guerra recused before appointing Garza to take over as the court’s prosecutor.

Yañez also overuled Guerra’s argment that Lopez failed to notifiy Guerra of the grand jury’s investigation.

Guerra said he welcomes another investigation as long as the Texas Rangers, the FBI or the Texas Attorney General Office’s lead the probe. Guerra called Raymondville Police Department and the Willacy County Sheriff’s Office biased.

“I’m not above the law,” Guerra said. “They can investigate me all they want.”

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