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2013-03-28

State Bar complaint against Payne dismissed

By Judith Pannebaker BCC Editor

After a year-long investigation, the State Bar of Texas has dismissed a complaint of professional misconduct filed against former Bandera County Attorney John Payne.
In a letter dated Feb. 26, Paul H. Homburg III of the Office of the Chief Disciplinary Counsel of the State Bar of Texas gave notice of "nonsuit on all allegations of professional misconduct asserted in this disciplinary proceeding ... without prejudice." Basically, this means the state bar has investigated the allegation and is dropping the case. According to www.lawguru.com, "nonsuit" is simply another word for dismissal and "without prejudice" means the complaint can be re-filed at a later date.
A complaint of ethics violations had stemmed from Payne's purported actions regarding the alleged rape of a then 11-year-old girl that might have occurred in March or April 2011. However, the alleged sexual assault was not reported by the victim to the Bandera County Sheriff's Office until September 2011.
The first indication that a complaint had been filed with the State Bar of Texas came in a political advertisement that Janna Lindig, then a challenger for county attorney, ran in the Bandera County Courier on April 26 during a contentious race against incumbent Payne. Lindig prevailed in a run-off election last summer and was sworn in as county attorney in January.
In her advertisement, Lindig indicated that a complaint had been initiated by former BCSO Investigator Sgt. Jose Barreto after he was frustrated "by the lack of assistance in trying to negate the impact of Mr. Payne's contact." Lindig also stated she had conferred with then Chief Deputy Richard Smith and Investigator Cherié Green about Payne's alleged conduct.
Barreto and Green had investigated the alleged rape. According to Lindig, Barreto had given her three unsolicited statements from him and Green.
"These communications were conducted in connection with my preparation of a draft of a complaint to be presented to the State Bar," Lindig wrote. She continued, "The only 'details' regarding the assault case that were relayed to me were the names (of the victim, the victim's mother and the three alleged offenders) and that a report had been filed. The facts that were discussed with me were those in the written statements pertaining to the actions of Mr. Payne, and were to be used in the complaint to the State Bar ..."
Lindig stated that, under the Disciplinary Rules of Professional Conduct, an attorney is mandated "to inform the disciplinary authority of a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty or trustworthiness."
In her advertisement, Lindig admitted that she had prepared the complaint for submission to the State Bar, but her involvement ended when a person "directly affected by Mr. Payne's conduct" decided to proceed with the complaint. She wrote, "I forwarded my research on the complaint and that ended my involvement."
Attorney Stephen Schaefer actually filed the complaint against Payne with the State Bar of Texas on March 7, 2012. On March 23, 2012, he filed civil litigation against Payne and an employee of the county attorney's office, as well as against teenage boys who were purportedly involved in the alleged sexual assault and the father of one of the boys.
In part, Schaefer's filing read: "This suit is against, among others, John D. Payne and individuals who abused and misused their title, office and access to information to commit torts that proximately caused damages to the plaintiff."
Interestingly, Lindig wrote, "Even though I violate no rules by revealing my involvement with the grievance, I would not have revealed that a grievance was prepared, but the statements in the Courier left me no choice. I regret that the legitimate and confidential action taken may somehow be used to try to justify Mr. Payne's actions." An investigation by the Office of the Chief Disciplinary Counsel of the State Bar of Texas failed to agree with Lindig's assessment of Payne's conduct.
In her advertisement, she referenced articles published in the April 12 and 19, 2012, editions of the Bandera County Courier as purportedly the basis for her revealing that a grievance had been prepared. However, the articles in question concentrated on the civil lawsuit and county law enforcement personnel releasing privileged information about a case involving minors to an uninvolved third party. No mention was made of a complaint against Payne to the State Bar because the Courier was unaware of the fact until Lindig's ad revealed it on April 26.
Currently, the alleged rape case continues in judicial limbo. After Payne recused himself from the case, attorney Jerry Phillips was appointed prosecutor pro tem last April. However, nothing points to the case being presented to the Bandera County Grand Jury. Phillips failed to return a Courier email requesting an update about the case.
Additionally, in October 2012, a hearing had been scheduled on a motion to dismiss the civil litigation against Payne. On that date, Schaefer and his clients reportedly hammered out a $2,500 monetary settlement with Payne's attorney, Michael Shaunessy of the Austin law firm of Sedgwick, LLP. District Judge Keith Williams signed the order of dismissal with prejudice, which bars the case being refiled on the same basis at a later date. However, nearly six months, the lawsuit has not yet been officially "settled."
Shaunessy did not respond to an email from the Courier enquiring about the status of the settlement - which could be, at most, $2,500.