Last Friday, Austin’s 3rd Court of Appeals granted former U.S. Rep. Tom DeLay’s motion to recuse Justice Diane Henson from hearing his appeal of his criminal conviction. Also on Aug. 3, the court’s chief justice, J. Woodfin Jones, sent a letter to Texas Supreme Court Chief Justice Wallace Jefferson asking him to appoint a judge or justice to participate in hearing the appeal in Thomas Dale DeLay v. State of Texas.
DeLay, a Republican from Sugar Land, sought Henson’s recusal on May 4, arguing in his motion that Henson was not impartial because she mentioned DeLay’s appeal during remarks she made, likely in 2006, at the state Democratic convention.
Pursuant to Rule 16.3 of the Texas Rules of Appellate Procedure, DeLay’s motion to recuse was certified to the entire court, consisting of Jones and Justices David Puryear, Bob Pemberton, Jeff Rose and Melissa Goodwin and 37th District Judge David Berchelmann of Bexar County, sitting by assignment, but Puryear, Pemberton and Rose did not participate, according to a letter from 3rd Court Clerk Jeffrey Kyle to lawyers involved in the appeal. That letter is in the case file in DeLay’s appeal. DeLay alleged in the motion to recuse Henson that Puryear and Pemberton recused themselves earlier this year from his appeal and that Rose asked to be removed from the panel hearing the appeal.
Henson declines comment on the recusal.
Brian Wice of Houston, who represents DeLay in his appeal, says he is gratified by the court’s decision to recuse Henson.
“All that Tom and all that any appellate lawyer looks for is a level playing field,” says Wice.
Holly Taylor, an assistant district attorney in Travis County who is working on the appeal, declines comment on the recusal. “What we want is a fair hearing, and we are confident we will get it,” she says.
In November 2010, a Travis County jury convicted DeLay on one count each of conspiracy to money launder and money laundering. In January 2011, Senior Judge Pat Priest of San Antonio, sitting by assignment on the case, sentenced DeLay to three years in prison. In August 2011, DeLay asked the 3rd Court to reverse his money laundering convictions related to 2002 political contributions. DeLay is out on bond.
In his appeal DeLay asks the court to remand his case for acquittal or a new trial or, alternatively, to dismiss the indictment against him.
— Brenda Sapino Jeffreys