The Appointment of the Special Prosecutor in the Perry Case

August 19th, 2014
One issue that seems to have been lost in the media, is how the special prosecutor was appointed to investigate Governor Perry. I had thought–mistakenly–that the same drunk District Attorney who led the Public Integrity Unit also started the investigation. This isn’t right.
Shortly after Perry made the veto threat, Texans for Public Justice filed a complaint in Travis County.  As I understand it, all of the prosecutors in Travis County–who work under District Attorney Lehmberg– recused themselves from handling the complaint. At this point–for reasons I don’t completely follow–the administrative judge of Willamson Count appointed Bexar County Senior Judge Robert Richardson to appoint a special prosecutor. I couldn’t find any good explanation for this sequence of events–its possible no one wanted. I suspect Travis County Judges were not eligible to appoint a special prosecutor, but I’m not sure. If you know, please fill me in.Anyway, this roughly follows the Texas Code of Criminal Procedure, which provides for appointment of Attorneys pro tem (special prosecutors):

Art. 2.07. ATTORNEY PRO TEM. (a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
So if I follow, the indictment was triggered, not by the DUI DA, but because of the complaint filed by the Texans for Public Justice. At this point, it doesn’t seem the Travis DA had anything to do with the selection of the prosecutor. This seems to be a point lost in the media, that I didn’t realize till now. There is more coverage here, here, and here.
The question I don’t know–and if anyone knows this please drop me a line–is whether the special prosecutor was obligated by his authority to seek an indictment in the allegations of wrongdoing, or was this simply a matter of prosecutorial discretion. I lean towards the latter, but I’m not sure. Just because a complaint is filed does not mean a prosecutor needs to seek an indictment.