Tyler's attorney wants appeal cases consolidated
April 14, 2010 at 8:03 p.m.
Updated April 13, 2010 at 11:14 p.m.
An attorney representing Victoria District Attorney Steve Tyler wants the appeals court to consolidate two cases, not dismiss them.
Ruth Kollman, who represents Tyler in the appeals involving Police Chief Bruce Ure, asked the 13th Court of Appeals to consolidate the appeals of Ure's criminal case and Tyler's appeal of being removed from the case.
This is the latest in a long line of legal proceedings and documents in the case involving Tyler and Ure.
In 2008, Ure was indicted on a charge of aggravated perjury, a third-degree felony, in connection with an investigation of Michael Ratcliff, a former Victoria County Sheriff and Tyler's former chief of staff. Ratcliff was investigated after he was accused of sexually assaulting a teenage boy years before.
In April 2009, State District Judge Stephen Williams threw out the perjury charge against Ure, saying Tyler could not be both the victim and the prosecutor of the case.
Tyler appealed the judge's ruling. However, he failed to file a brief, causing the Court of Appeals to deny Tyler's appeal.
Earlier this month, the case was sent back to Williams' court, where he held a hearing to determine if a brief will ever be filed.
Because a brief had not yet been filed, Williams' recommended the Court of Appeals dismiss the case against Ure.
In her response filed Tuesday. Kollman said she hoped the Court of Appeals would not let its final ruling be prejudiced by Williams' recommendations.
When contacted Wednesday, she did not comment on why she wanted the two cases consolidated.
In the filing, she said the consolidation of these two cases will provide the most efficient use of judicial resources.
Greg Cagle, who represents Ure, was not sure of Kollman's reasoning for wanting to consolidate the two cases rather than just filing the still-missing brief.
"For the love of God, just file a brief," Cagle said.
In the response, Kollman discussed an April 6 hearing where State District Judge Stephen Williams' sought to determine whether Kollman intended to file a brief.
She claimed in the filings that neither Ure nor his attorney filed any new evidence at the hearing.
She claimed the issue at hand was whether the state not filing its appeals briefs on time constituted abandonment of the appeal.
In Williams' findings and recommendations, he wrote, "Despite Ms. Kollman's statements to the contrary, the State has effectively or constructively abandoned its appeal, particularly in light of the many opportunities the State has been given to file the brief."
Kollman said Williams' conclusions were based on cases where the "prosecuting attorney did not respond at all to the Court's inquiries regarding the State's intent to prosecute the appeals."
Both in an affidavit Kollman filed on April 6 and in her response, Kollman outlined her reasons for not filing her brief by the Jan. 20 deadline, citing pre-existing client commitments, a trial schedule and the onset of a severe illness.
"Williams did not make any finding that counsel's representations in the affidavit were untruthful, even if he characterizes (Kollman's) illness as 'unspecified,'" according to the response.
The document also provided Kollman's response to a possible dismissal by the Court of Appeals.
"Involuntary dismissal under these circumstances would prejudice the State for having to act through outside counsel who was hampered in meeting her commitments as a result of the secrecy imposed by the sealed record created by Judge Williams' removal of the District Attorney without appointing special counsel to take his place," according to the document.
If the court were to follow Williams' recommendation, Kollman's response stated, the court would be permitting Williams to affirm his own sealed dismissal order based on his "perception of counsel's inadequacy" after saying Tyler could not be both the victim and the prosecutor of the case.
The response said Williams stripped the State of Texas "not just of counsel, but also of a voice."
Additionally, Kollman's response commented on her desire to consolidate the direct appeal with a related civil case, whose records she is still hoping to get unsealed.
She said the state would file its appeal brief within 30 days after the appeal court makes its ruling, even if the records are not unsealed.
Cagle said he does not have to file a response to Kollman's. Instead he only has to file a response to Kollman's motion to consolidate the two cases.
The 13th Court of Appeals will review Kollman's appeal in addition to other documents related to the case.
Afterward, the court will review the recommendations and make its decision.
A deadline for the final ruling has not been set.