Brown County Auditor Jennifer Robison has requested an opinion from Texas Attorney General Ken Paxton’s office on how Brown County Shane Britton has run pretrial diversion agreements.     Those agreements are between first-time misdemeanor defendants and Britton’s office.
    Robison sought the opinion in a June 4 letter and via email. The letter was posted on the the attorney general’s website on June 5 in the “pending opinion requests” section.
    Britton’s office has used pretrial diversion agreements with defendants for many years, Robison’s letter states. In 2007, the Texas Legislature passed a bill presented by Rep. Jim Keffer pertaining to Brown County’s pretrial diversion program.
    Then-Assistant County Attorney Ryan Locker presented the proposal to the legislation.    After the Legislature enacted the law,  Britton began to utilize it to require donations to be paid to his office as part of pretrial diversion agreements, Robison’s letter states.
    Robison, who was appointed Brown County auditor by District Judge Steve Ellis on June 1, stated in her seven-page letter she’s sure pretrial diversion programs, when done lawfully and properly administered, “can be a good thing for all concerned. Rehabilitation can take place without punishment that is overly harsh.”
    But requiring defendants to make payments to a prosecuting attorney’s office “in exchange for more lenient treatment or dismissal of their cases under the guise of calling these payments ‘donations’ appears to me to create a major problem,” Robison’s letter states.
    “There is an obvious potential for abusing the practice of exacting a donation or other payment which directly or indirectly benefits the very prosecuting attorney who is the one requiring to to be paid in the first place, especially if there can be serious consequences” to a defendant who does not pay.
    Britton said he’s done nothing wrong and operated the pre-trial diversion and donations program based on the 2007 legislation.
    “I was as surprised as everyone else when I received a copy,” Britton said, referring to a packet containing Robison’s letter and exhibits. “I have not had an opportunity to read through all of the information provided.
    “While the questions asked are very important questions, I am surprised in the number of factual allegations that are not true. I anticipate filing a response with the Attorney General’s Office pointing out the factual inaccuracies. However, I ultimately look forward to the Attorney General answering the legal questions.”
    Britton said the donation from a pre-trial diversion defendant totaled $1,500 including $750 to the county attorney’s office.
    Britton said state law changed after the 2007 legislation presented by Keffer. He said the program is now called the Brown County Misdemeanor First Time Offenders Program, and sets the cost to the defendant at $980 — $500 to the county attorney’s office and $480 to the probation office.
    Robison posed four questions in her letter:  
    • Whether the county attorney can lawfully agree with defendants, in misdemeanor criminal cases, to refrain from prosecuting a violation of law if the defendant agrees to “donate” or otherwise pay money to Britton’s office as part of pretrial diversion agreements with his office;
    • Whether a judge can legally order defendants in misdemeanor criminal cases to make “donations” to Britton’s office as part of a pretrial diversion agreement with his office;
    • Whether the “donations” or payments otherwise received can be lawfully transferred from the county attorney’s office’s donation fund at Britton’s request, and with the approval of the commissioners court, be commingled with money in the county attorney’s hot check fund to supplement staff salaries of Britton’s office;
    • Whether a defendant in a misdemeanor case can be really required to pay a pretrial diversion fee to the county clerk or county attorney as part of a pretrial diversion agreement with Britton if it is not ordered by a court, and if it is not related to reimbursing the county for expense related to the pretrial intervention program, or as a probation fee.
    “In exchange for favorable disposition of their cases normally through a pretrial diversion agreement, the Brown County attorney appears to require … the alleged offender to contribute to the prosecutor’s donation fund, claiming it is authorized because of the (2007) legislation,” Robison’s letter states.
    “ … I do not feel I will be doing my job … if I simply rubber stamp the county attorney’s request for monthly transfer of sums out of the county attorney donation account into his hot check fund over which the (commissioners court) and I have no control.”    Robison raised other points in her letter including her asertment that county commissioners had agreed with a proposal from Britton in 2008 that the county attorney would pay more of his staff salaries out of the hot check fund. It was part of an overall plan that would give Britton a $15,000 annual raise, Robison’s letter states.
    When the hot check fund had less money than in previous years, Robison’s letter stated, Britton would request that money be transferred from the county attorney hot check fund for staff salaries.
    Robison also stated in her letter she is seeking an expedited opinion “due to the livelihoods of those current staff employees who had nothing to do with these matters but whose salaries are no longer adequately being paid out of the county’s general fund.”
     Britton said he believed the donation program “was a very good program that gave first time offenders a second chance, and at the same time benefitted the taxpayers of Brown County by placing more of the burden or prosecution on the backs of criminal defendants.”