Disputing the "Deputy' in Deputy Ruiz

Can a deputy still be a deputy without swearing to oaths required by law? One lawyer doesn't think so.

Disputing the Deputy' in Deputy Ruiz
Illustration By Doug Potter

Q: When is a sheriff's deputy not a sheriff's deputy?

A: When the officer hasn't filed an anti-bribery oath with the secretary of state, says Linda Icenhauer-Ramirez, the court-appointed attorney of Edwin Delamora. In an Aug. 28 court filing heavily based upon a 1999 state appeals court decision, Icenhauer-Ramirez urged District Judge Julie Kocurek to grant a new trial to Delamora, convicted this summer of capital murder in the February 2001 shooting of Travis Co. Sheriff's Deputy Keith Ruiz, who was assisting the Capital Area Narcotics Task Force during a drug raid at Delamora's Del Valle mobile home. While prosecutors say Delamora knowingly shot the deputy in an attempt to buy time to flush his drug stash, defense attorneys argued that Delamora didn't realize the invaders were law enforcement officers and fired to protect his family.

A member of the Sheriff's SWAT team, Ruiz had not renewed his "Statement of Officer" oath, required under the Texas Constitution, before his death. Icenhauer-Ramirez's motion argues that law enforcement officers can't legally discharge their duties unless they've renewed the anti-bribery oath. "Under [the Texas Penal Code], an intentional first-degree murder is elevated to a capital murder if the person murders a peace officer," Icenhauer-Ramirez wrote. "Thus an essential element of [the] capital murder charged ... is that the victim was a peace officer acting in the lawful discharge of an official duty [at the time of death]." With an outdated oath, Ruiz was "constitutionally disqualified" from serving as a deputy on the night he was killed, Icenhauer-Ramirez argues, making moot the capital murder charge.

Representatives of the Travis Co. sheriff's and the district attorney's offices dispute the claim. "We're confident that what they have is groundless," said TCSO spokesman Roger Wade. "The defense team is going down the rabbit trail, and we're not going to follow them." First Assistant Travis Co. District Attorney Rosemary Lehmberg says the DA's office respects the oath requirement (Travis Co. DA Ronnie Earle has refiled each time he has been elected in the last 24 years), but doesn't believe that the law Icenhauer-Ramirez cites in the appeal applies in this case. The DA's office plans to contest the motion for a new trial.

In 1989, voters passed a constitutional amendment that split the anti-bribery oath (originally intended only for state legislators) from the official oath of office, and extended its requirements to all elected and appointed state officials. Under Article XVI, Section I of the Texas Constitution, which requires officers to retake and refile the anti-bribery oath at the expiration of each term of office (or at least every two years), Ruiz should have renewed after the November 2000 re-election of his boss, Travis Co. Sheriff Margo Frasier. The Texas Local Government Code "provides that a deputy serves at the pleasure of the sheriff," Icenhauer-Ramirez wrote. "A deputy sheriff's term expires when the sheriff's term expires. Thus a sheriff and her appointees (deputies) were required to retake their oaths and refile the statements every four years. ... Accordingly, Keith Ruiz was not in compliance with state law at the time of his death."

But records on file with the secretary of state reveal that Ruiz had not renewed since January 1997, and he was not alone. While the Chronicle found that Frasier renewed her oath accordingly, only three of the 12 deputies identified as part of the CANTF raid at Delamora's home had current oaths on file -- and none were from TCSO. Of the nine TCSO officers, four have never filed the oath, and five had not refiled since 1997.

While the oath requirement is firmly planted in the state constitution, law enforcement agencies differ in their interpretations of compliance. Deciding on Ruiz's status rests firmly with Kocurek, whose decision could have a roiling impact: A ruling that Ruiz was not legally a deputy at the time of his death could call into question all of the law enforcement activities of not only the CANTF deputies whose oaths had expired, but also countless enforcement actions of deputies who never participated in the CANTF, which disbanded after a series of controversial incidents. A floodgate of questions from inmates and defense attorneys would also likely follow.

Since Frasier was an incumbent, said TCSO spokesman Wade, Sheriff's officials believed that Ruiz and other deputies didn't have to refile their oaths. "Whether he filed was not as important -- he was a peace officer," Wade said. Lehmberg says it doesn't matter whether Ruiz's oath was current, because he would still be considered a "de facto" officer. In an opinion published in May 1996, the state attorney general defined a "de facto" officer as "one who has the reputation of being the officer, and yet is not a good officer in point of law." In other words, the officer acts under someone appointed validly, "but has failed to conform to some precedent requirement, as to take the oath, give a bond, or the like." However, the AG's opinion continues, the de facto determination can only be made based on the facts -- which in the Delamora case may well have to be determined in court.

In a review of AG records, the Chronicle found a March 1996 opinion stating that all law enforcement officers, including city police officers, must take the anti-bribery oath. In a 1994 letter, then-Secretary of State Ron Kirk notified state agencies of this requirement, adding that officials' failure to take the oath had already affected court proceedings. Kirk cited the example of a deputy sheriff who was called to testify concerning a speeding ticket; after the defendant raised the oath issue, the Justice of the Peace excluded the deputy's testimony and dismissed the ticket. "The deputy had failed to file the constitutionally required statement," wrote Kirk.

The clearest case of legal action involving the oath is Prieto Bail Bonds v. State, decided in May 1999 by the 8th Court of Appeals in El Paso. After a senior judge forfeited a bond due Prieto, the company successfully argued that the forfeiture was invalid because the judge hadn't filed the anti-bribery oath. To argue Delamora's case, Icenhauer-Ramirez is relying heavily on Prieto, which helped define which officers are required to take the oath, and reiterated that the oath must be taken at the start of every new term. Still, Lehmberg argues, the court's decision doesn't apply in the Delamora case due to Ruiz's "de facto" officer status.

The motion is scheduled for a Sept. 23 hearing before Judge Kocurek.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for almost 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

Support the Chronicle  

NEWSLETTERS
One click gets you all the newsletters listed below

Breaking news, arts coverage, and daily events

Can't keep up with happenings around town? We can help.

Austin's queerest news and events

Eric Goodman's Austin FC column, other soccer news

Information is power. Support the free press, so we can support Austin.   Support the Chronicle