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2012-07-19

Motion to dismiss civil lawsuit filed

By Judith Pannebaker BCC Editor

Michael Shaunessy of the Austin law firm Sedgwick, LLP, attorney for Bandera County Attorney John Payne, has submitted a motion to dismiss a civil lawsuit filed by local attorney Stephen Schaefer on behalf of his clients, Jane and Joan Doe.

The civil litigation stemmed from an alleged rape involving minors that had purportedly occurred in March or April 2011. The alleged sexual attack of female minor, who was then 11 years old, was not reported to the Bandera County Sheriff's Office until September 2011. At that time, an investigation was opened.

The civil lawsuit alleges that Payne used his role as county attorney to benefit a private-practice client and his son. For his part, Payne readily admits to advising his private practice client that he could not represent the man's son on a rape charge. At that time, Payne also advised his client not to allow his son to speak to investigators without an attorney present.

Investigation not derailed

According to Shaunessy's motion to dismiss, filed in the 216th District Court on Friday, July 13, the claims of Schaefer's client are based entirely on the assertion that Payne's action interfered with or inhibited the BCSO investigation into Joan Doe's allegations that she was sexually assaulted.

However, in a sworn statement, BCSO Cpl. Cherie Green, lead investigator in the sexual assault complaint, testified that Payne did not manipulate or inhibit her investigation and that his actions failed to interfere with her investigation.

When asked specifically if she believed Payne had attempted to interfere with her investigation to assist his private practice client, Green replied, "I do not." She later added, "I never thought that he was trying to hurt my case."

In her sworn statement, the veteran law enforcement officer also stated she did not believe Payne committed any ethical or criminal violations.

Warning required

Green explained that the warning that Payne gave to the parent of the then 13-year-old boy accused of the sexual assault is required by law and is given to every juvenile witness being interviewed by law enforcement.

Green told Shaunessy, "A judge would have had to warn (the minor boy) before I could take any formal statement at all. It can't even be me. It has to be someone separate from me. (The minor) would have been informed by a judge that he didn't have to talk to me before and after he gave me a statement. That's just the law."

In his motion to dismiss, Shaunessy wrote, "These standard warnings form the basis of Plaintiff's complaints against Payne in this suit."

Neither 'damages'

Shaunessy's motion to dismiss also notes that the plaintiff, Jane Doe, mother of the alleged sexual assault victim, has suffered no "damage" by the actions she claims Payne took. As Shaunessy pointed out, the investigation continued.

According to Green, during the course of her investigation, she had, in fact, interviewed two boys who have been accused of holding the minor girl down during the alleged sexual assault.

"The investigation into the alleged sexual of Joan Doe is going forward and an independent prosecutor is evaluating the evidence and deciding if he should present it to a grand jury," Shaunessy wrote. "If a grand jury indicts any persons in connection with the alleged sexual assault then the independent prosecutor will pursue the matter through trial and, if necessary, on appeal. None of Payne's actions prevented the prosecution of any alleged criminal activity."

Nor 'wrongful conduct

In his original civil filing, Schaefer claimed Payne had committed "wrongful conduct." However, Shaunessy notes that the State of Texas does not recognize claims of "wrongful conduct" and Schaefer failed to offer legal precedent(s) for the "wrongful conduct" claim. As a result, Shaunessy asked the court to give Schaefer 15 days to replead - with specificity - causes of action under Texas law.

Internal memo?

In the course of the sworn statement, Green also told Shaunessy that BCSO administrators had asked her to write down what had occurred during exchanges with Payne and James, as well as what had transpired during an interview with an uninvolved third party. Ultimately, Green's account was included in court documents.

She said, "When I wrote that up, I completely thought that was an internal document." She indicated that the memo had not been written to institute a criminal investigation against Payne. Nor did she consider her account would be used to initiate an allegation of an ethics violation.

"I didn't even think that far ahead that it might be used for anything other than internal ..." Green concluded.

Backstory

As reported earlier in the Bandera County Courier, Schaefer's lawsuit states that "while engaged in a cover-up" Payne and Linda James, juvenile court coordinator, had used the office of the county attorney to "wrongfully, inappropriately and clandestinely" access confidential, privileged information from the BCSO on the purported crime. Additionally, Schaefer's lawsuit accuses Payne and James of passing on the information to the accused juvenile male through his father, whom Payne was representing in a child custody dispute in his private practice.

However, since filing the civil litigation in March, Schaefer has sent a letter of non-suit to the court, dropping James from the lawsuit.

In addition to seeking a dismissal based on Schaefer's failure to state any cause of action recognized in the State of Texas, Payne is also seeking recovery of attorney's fees based on the bad faith nature of the suit.

In his answer to Schaefer's lawsuit, Shaunessy contended that the sole intent of the litigation was to harass Payne and attempt to impact the outcome of the county attorney race.