El Paso County District Attorney Yvonne Rosales violated state law when her office allegedly misused more than $2,600 of public money on items promoting herself as district attorney, according to the Texas Ethics Commission.
The Texas Ethics Commission's opinion comes after the El Paso County Auditor’s Office audit showed Rosales used $2,604 of forfeiture funds to buy victims' advocate material such as t-shirts and children's badges which had her name and title on them.
A draft of an advisory opinion posted online by the Texas Ethics Commission states the Texas Penal Code prohibits a public servant such as the district attorney from using government resources to “create promotional items with logos that display the name and title of the officer and distribute those items to the public.”
The commission’s opinion on the issue therefore states Rosales’ use of the forfeiture funds, money or property suspected of being part of a crime seized by the state, to buy items displaying District Attorney’s title and name is a violation of the Texas Penal Code.
The violation would be a charge of "abuse of official capacity," which is a state jail felony because the alleged misuse of funds is more than $2,500, but under $30,000, according to the Texas Penal Code. A state jail felony holds a maximum sentence of two years in jail and a $10,000 fine.
El Paso County District Attorney's Office spokesman Paul Ferris referred all questions to El Paso County Chief Administrator Betsy C. Keller.
Keller could not immediately be reached by phone.
Rosales claimed in an emailed response obtained by the El Paso Times to a Nov. 3 memorandum sent by El Paso County Auditor’s Office that the auditor’s findings were “biased” and a “one-sided viewpoint."
“I am deeply disappointed that the memo that will be submitted without my consent is clearly biased in nature as it does not properly reflect the series of events that transpired to purchase of the items, which are similar to items that the prior administration made over the course of 28 years but was never questioned by Human Resources,” Rosales wrote.
She also questioned if the findings were because of gender discrimination and if auditors failed to advise the new administration.
“Is this gender discrimination, a lack of due diligence on the part of auditor’s to properly advise a new administration when seeking guidance prior to making any purchases with forfeiture funds?” she asked in her email.
The outcome of the commission's finding could lead to criminal charges being filed against Rosales. Law enforcement could launch their own investigations or an investigation could be launched if a complaint against the district attorney is filed by anyone.
Texas Department of Public Safety spokesman, Sgt. Marc Couch, said DPS nor the Texas Rangers "are currently involved at this time in any investigation of the allegations against the El Paso County District Attorney Yvonne Rosales."
El Paso County Sheriff's Office spokeswoman Chris Acosta said the office has not received a complaint over the allegations.
She added any complaints received by the sheriff's office would be sent to DPS because the district attorney is an official of state government.
El Paso Police Department spokeswoman Det. Judy Oviedo said, "we are not investigating this and we have not received a complaint."
County commissioners court to discuss El Paso DA in executive session
El Paso County Commissioner David Stout said the findings of the audit have been sent to the Texas Attorney General’s Office. County commissioners approved the DA sending her report during a Nov. 15 El Paso County Commissioners Court meeting.
No discussions were held during the meeting on the audit's findings.
Texas Attorney General’s Office officials did not immediately respond to an emailed request about their involvement in investigating the allegations.
Stout added the opinion of the commission and the audit's findings are expected to be discussed Monday in executive session at the El Paso County Commissioners Court meeting.
Commissioner Iliana Holguin said her office is working with the El Paso County’s Attorney’s Office on gathering more information on the opinion issued by the Texas Ethics Commission and how to move forward.
Commissioner Carlos Leon declined to comment, while Commissioner Carl Robinson could not be reached by phone to comment on the issue.
The commission's draft opinion was released this week ahead of a Dec. 9 meeting in Austin, where the ethics commission will discuss the issue. The meeting will be livestreamed on the commission's website.
The opinion does not state which district attorney’s office requested the commission’s opinion on the issue.
However, the details in the opinion match the allegations of the items Rosales purchased including t-shirts with a lotus flower.
The request for an opinion by the commission on the issue was made by an “employee of a multi-county district attorney’s office.” The El Paso County District Attorney’s Office for the 34th Judicial District oversees El Paso, Hudspeth and Culberson counties.
The employee wanted an advisory opinion on “whether employees of the district attorney’s office may use public funds to distribute items, including, but not limited to “pens, shirts, tote bags, stickers, etc.,” displaying logos with the district attorney’s name and title,” according to the opinion released by the commission.
The requestor, who is not named in the opinion and referred to as only "he," wrote in his request that the items would be “distributed at all community functions that the DA and or a representative of the office attends ... to those of all ages,” according to the opinion.
The requestor also said, “Other items displaying the logos are “plastic badges that would be handed out to children during our school initiatives.”
The commission stated in its opinion: “District attorneys are not officers or employees of political subdivision, but they are public servants,’ therefore the Texas Penal Code “applies to district attorneys, prohibiting them from intentionally or knowingly misusing ‘government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.’”
The employee also asked in his request to the commission for an opinion about “a car magnet that we would use to identify our investigator vehicles when attending functions outside of the office while on official office business.” But the commission ruled, it would be “would be an appropriate use of public funds, such as affixing the official seal to a vehicle used for official purposes.”
The employee also stated in his request that the district attorney had just taken office and was years away from seeking reelection.
The commission stated it was still a violation of the penal code no matter how much time the district attorney had in office nor how far away the next election is scheduled to be held.
Rosales' first term as district attorney will end Dec. 31, 2024.
“However, the requestor seeks instead to affix her name and title to various promotional items like pens and tote bags and give those items away to members of the public,” the commission’s opinion states. “The stated purpose is ‘community outreach,’ and the requestor notes that the official just recently took office and is not up for re-election for several more years. But we note that each logo not only identifies the office, but also prominently includes the name of the current occupant of that office."
It continues, "This type of promotional item would lead one to believe that its purpose ‘was to support the incumbent,’ regardless of the timing.”
Items included t-shirts, badges to identify victim advocates
A memorandum sent Nov. 3 by the El Paso County Auditor’s Office stated the items purchased by the El Paso District Attorney’s Office included “work t-shirts to identify victim advocates at community events with the District Attorney’s logo and name prominently displayed.”
The other item mentioned is “children’s badges for junior investigators for use in community outreach of services for crime victims and information with the District Attorney’s name in bolder and larger font.”
The commission’s opinion states the items presented by the requestor included “a seven-pointed star containing the name, title, and geographic district of the district attorney with a silhouette of a person holding a magnifying glass, under which is printed ‘Junior Investigator.’”
Another item presented to the commission was a “lotus flower encircled with the name and title of the district attorney and imprinted with 'Healing-Hope-Voice-Help-Strength' and an inscription characterizing the lotus flower, according to the opinion. The inscription read, “rises and blossoms above the muddy waters and dark places.”
The commission stated, “In each logo, the name and title of the district attorney are in larger and bolder typeface than the other text.”
In the email response to the Auditor’s Office’s Nov. 3 memo, Rosales stated the “lotus flower that has an inspirational saying is the MOST PROMINENT feature of the work shirt.”
She added, “the subjective ‘bold’ lettering of the name on the children’s badges because the lettering for junior investigator has to be smaller because of the space area, so it in fact is not bolder and the lettering is smaller due to the investigator feature within the circle.”
In her response email, Rosales addresses the district attorney not falling under the Texas Election Code, but does not mention the Texas Penal Code.
The auditor’s office recommended in its Nov. 3 memo that the district attorney’s office reimburse the money if the Texas Ethics Commission decides the items were for political advertisement or campaigning.
It is not clear if Rosales or the District Attorney’s Office has reimbursed the money.
This article originally appeared on El Paso Times: Rosales accused of violating state law by Texas Ethics Commission