Friday, April 26, 2024
The Hood County Commissioners Court, at its regular meeting on Tuesday, Jan. 11, unanimously agreed to table an allegedly unprecedented decision on whether to issue a subpoena for Precinct 2 Constable John Shirley’s county-issued cell phone.
The county judge and commissioners will reconsider the subpoena if Shirley, who was not present at the meeting, does not turn in the phone before the court’s next regular meeting on Jan. 25.
The HCN reported on the cell phone situation as well as other issues with Shirley early last November after several county officials said they had not seen him since January.
At that time, Shirley declined through an email to provide any information to the HCN about his absences other than that he was caring for his cancer-stricken wife and that operations in his office were “unchanged.”
Documents obtained by the newspaper through Open Records showed a marked decline in productivity for that office despite two unpaid deputy constables assisting with duties.
Constables are provided for in Article 5, Section 18 of the Texas Constitution of 1876. Hood County’s four elected constables are paid $72,955 per year plus $601 in certificate pay.
The county’s IT department has been trying to reclaim Shirley’s county-issued iPhone 8 since September after an audit found that the phone was missing from the list of county devices.
According to IT employee Owen Curnutt, further checks revealed that the phone’s tracking feature was disabled, and the iCloud account password had been changed even though those passwords are closely guarded within the IT department and Shirley did not have access to it. Those passwords are different from lock-screen codes.
An examination also revealed that a new primary email address was added to the iCloud account and the “trusted phone number” was changed to a number ending in “24,” the same digits that are in Shirley’s personal phone number as listed in personnel files.
According to Curnutt, the name on the account was switched from “Hood County” to “John Shirley” on the same day the phone number and email address were changed.
Records obtained by the HCN show that Curnutt emailed Shirley about the situation on Sept. 9 and advised him that cellular service would be disabled until he returned the device to the county.
The following day, Shirley emailed back stating that he would return the phone “as soon as I can.”
On Oct. 8, with the phone still not having been returned, Curnutt emailed a letter detailing the situation to County Judge Ron Massingill and Commissioner Ron Cotton, who, like Shirley, represents Precinct 2.
Curnutt raised concerns that sensitive county information might have been jeopardized and that Criminal Justice Information Services (CJIS) protocols might have been violated.
At the Jan. 11 Commissioners Court meeting, Massingill indicated that he had placed the “subpoena duces tecum” — a writ for production of evidence — on the agenda for consideration after having consulted with County Attorney Matt Mills and District Attorney Ryan Sinclair.
Mills told the court that he had communicated with Austin attorney David Brooks on the matter.
He later told the HCN that Brooks is an independent contractor lawyer who specializes in county government. Mills said that when he took office, he “inherited” a contract with Brooks, who provides consulting services.
Mills told the court that, although he has “never seen it done,” Brooks advised that a subpoena issued by the Commissioners Court is “at least feasible” due to a provision under Chapter 81 of the Local Government Code.
Precinct 4 Commissioner Dave Eagle expressed doubt about that interpretation and noted, “It is clear in the statute that it says subpoena a witness, not a thing.”
Under Subchapter B, which deals with duties and powers of Commissioners Courts, Sec. 81.022(c) states, “A subpoena for a witness may be executed and returned immediately if necessary.”
Eagle called the situation “uncharted territory” and noted that Curnutt was out sick and thus unavailable for questioning that might produce evidence to justify a subpoena.
He said that while a subpoena might ultimately be a valid course of action, “I don’t think it ought to be done today, like this.”
Eagle further stated that since the phone has been disabled, he wondered what “immediate harm” the county might suffer by not having custody of the device.
Cotton noted that Shirley had been asked to return the phone and posed, “How much longer do we want to wait before we take action on this?”
The commissioner added that the phone is needed so that it can be brought back into compliance with the IT Department and CJIS.
Massingill expressed a willingness to delay a decision on the subpoena but noted that Shirley agreed back in September to return the phone.
“All he has to do is return the phone. The cell phone is not his,” the judge said. “This could have all been avoided.”
As far as a subpoena by the Commissioners Court being uncharted territory, Massingill said, “There’s no precedent because I don’t know of any public official that’s ever done anything like that to begin with.”
Referring to claims that Shirley had been “exonerated” by the Texas Rangers, Massingill said that the past investigation had not involved the constable’s county-issued cell phone.
“I’m not going to shirk my duty to the citizens of Hood County,” the judge stated. “I’m going to follow the law.”
Shortly after the Commissioners Court meeting, a post appeared on Shirley’s Facebook page criticizing Massingill, Cotton, Mills and Sinclair for “meeting secretly to conspire” to retake possession of the cell phone.
The 13-paragraph post, presumably made by Shirley, noted that emails between him and IT show that the IT employees “understood the situation with my wife and to bring it in whenever was convenient.”
The last paragraph stated, “I’ll gladly bring in the phone. They can have it back. It’s county property after all.”
