2009-10-29

Gov appoints Kerr County Attorney as 198th District Judge

By Judith Pannebaker

In a move that apparently caused consternation within the 216th Judicial District, Texas Gov. Rick Perry appointed Kerr County Attorney Melvin “Rex” Emerson Jr., 49, to fill the unexpired term of 198th District Judge Emil Karl Prohl, who resigned last month.

On Friday, Oct. 23, the governor selected Emerson over 216th District Attorney Bruce Curry, who had also applied for the position, along with Emerson and three other attorneys. Curry’s appointment would have led to a shake-up in the 216th Judicial District.

As a newly minted district judge, Emerson will hold court in Kimble, Mason, Menard and McCulloch counties, as well as in a portion of Kerr County. However, it is expected he will hear occasional criminal and civil cases in Bandera County as well.

Ironically, Prohl administered the oath of office to Emerson when he became Kerr County Attorney on Jan. 1, 2005.

Emerson served as Kerr County campaign chairman for Perry in 2002.

His appointment will last for 13 months before he must run in the 2010 General Election for a full four-year term.

About a month before Prohl resigned in the wake of an investigation into alleged illegal use of asset forfeiture funds – money derived from criminal acts – the Bandera County Courier received a confidential tip that Prohl had resigned “effective immediately” from the bench and was, in fact, “cooperating with investigators.”

Using due diligence, Courier staff placed calls to the offices of 198th District Attorney Amos Barton and Prohl. Eventually, court coordinator Becky Henderson issued a categorical denial that Prohl planned to vacate the bench. “In fact, he were just discussing his plans to run for re-election,” she said. No sooner had she rung off, than Barton called the Courier and not only denied, but also disparaged, the rumor.

In light of the earlier telephonic hint, the Courier was not surprised when Prohl actually resigned from the bench on Sept. 15, when news of his precipitous departure swept through the Gillespie County Courthouse.

Prohl’s troubles began when Kerrville attorney Richard Ellison filed complaints with the State Commission on Judicial Conduct in July on behalf of himself and two clients that Ellison claimed had been convicted as a result of Prohl’s bias in favor of then-198th District Attorney Ron Sutton.

According to documents obtained by the Courier, Prohl had received checks totaling $14,500 from Sutton, which he used for office training, conferences and equipment and a criminal law conference. Additionally, Ellison claims Prohl also appeared to have received – from the same source – a portion of $21,475 for conferences in Hawaii, as well as $6,000 for “per diem” expenses during the conferences, which were sponsored by the Texas Independent Bar Association.

According to Ellison, the funds were garnered from seizures of cash and other assets by the Kimble County Sheriff’s Office. Apparently, Prohl approved all expenditures from the asset forfeiture fund from which he became a beneficiary.

Also in July, Ellison lodged a complaint with the Texas Ethics Commission claiming Prohl had failed to disclose the gifts of money and trips to Hawaii from Sutton in sworn financial statements filed with the TEC.

In a letter dated August 5, Ian M. Steusloff, assistant general counsel for the TEC, apprised Prohl that a portion of Ellison’s complaint was being investigated. Steusloff requested Prohl respond to the allegations in a sworn affidavit within 10 business days.

While that investigation apparently remains ongoing, Prohl’s resignation stopped any disciplinary action as the result of Ellison’s complaints to the State Commission on Judicial Conduct. In an order issued Sept. 23, Prohl agreed to resign his judicial office “in lieu of disciplinary action by the Commission, pursuant to Section 33.032(h) of the Texas Government Code. The commission agrees that it shall pursue no further disciplinary proceedings against Judge Prohl in connection with the above-referenced matter.”

Additionally, Prohl’s resignation bars the 18-year veteran jurist from serving in a judicial capacity again in the State of Texas. The agreement with the TCJC was signed a week after Prohl’s resignation.

Earlier, District Administrative Judge Steve Ables appointed Brazos County District Attorney Bill Turner as a special prosecutor. Although he appeared before a Kimble County Grand Jury in August, Turner declined to discuss the focus of his investigation. It has been speculated, however, that the inquiry covers misappropriation of public funds and deprivation of honest services, among other instances of malfeasance.

It is unclear how Turner’s investigation will intersect with a potential one by the office of the attorney general.

When the disposition of the 198th district’s asset forfeiture fund came to light, Sutton reportedly characterized the scrutiny as “much to do about nothing.” According to 198th District Attorney Amos Barton, Sutton currently holds the “honorary title” of assistant district attorney, but “doesn’t do much work for the district.”