Reposa’s Reroute

If you can’t beat ’em, run against ’em

photo by Jason Stout/Thinkstock

Adam Reposa remains in line to serve the full remainder of his six-month sentence for direct contempt of County Court at Law Judge Nancy Hohengarten. The Texas Court of Criminal Appeals reaffirmed as much last Wednesday when it denied a series of motions the uniquely constituted DWI defense attorney and his counsel filed over the past month seeking various types of bonds. Retiring Judge Elsa Alcala issued a dissenting opinion, joined by colleagues Bert Richard­son and David Newell, urging Reposa's release to electronic monitor pending the court's ruling on the merits of his case. But Alcala acknowledged the likelihood that the CCA won't actually get around to hearing Reposa's case before his sentence runs out, "render[ing] moot his legal challenges." She also opined that she would have tasked Reposa with filing a supplemental brief breaking down the status of his pending pleadings in the case – and there sure are a lot. She takes specific aim at the state's belief that Reposa remains a flight risk, reminding that he's a career attorney who'd like to continue trying cases when he gets out – and that he's spent much of the past six months pleading his case to different courts.

Reposa is hoping he can find one more. On Nov. 10, he announced plans to register as a candidate to challenge Judge Hohen­garten for her County Court 5 seat in the March 2018 primary. (Reposa planned to officially register that day, but pulled his paperwork because of a clerical error, his attorney said on Sunday. He may have officially filed by the time you read this. Fellow attorneys Mario Flores and McKinley Melancon are also rumored to be candidates, though neither had filed by the time we went to press.) He believes a footnote in the Texas Code of Judicial Conduct's statute barring judges from engaging in inappropriate political activity may also warrant a political opponent's case being moved out of their court. ("A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal," is the comment he's pinning those hopes to.)

Meanwhile, Reposa's attorneys continue unabated in their efforts to get this unlikely martyr out of jail. On Thursday, Nov. 16, Carissa Beene filed two motions (one seeking a bond, another seeking outright relief) in Williamson County's 425th District Court; which prosecutor Keith Henneke followed the next day with an emergency motion to the 3rd Court of Appeals requesting a halt of any proceedings in that court and a show cause hearing in that court. (The 3rd Court has already stayed proceedings in WilCo Judge Rick Kennon's 368th District Court.) Reposa's team was finalizing its response to Henneke's motion on Monday morning.

Also on Friday afternoon, Benjamin Blackburn walked into Hohen­garten's court to ask the judge to either commute Reposa's sentence or issue him home confinement probation with a monitor. Blackburn's arguments were familiar: Reposa believes he was deprived of due process when he didn't receive his sentence for contempt until Hohengarten's judgment was affirmed by Judge Paul Davis, and isn't buying the state's argument that there's precedent for that order of action. (One of the state's cited cases is Reposa's 2008 conviction of direct contempt, which Davis also affirmed.) But Blackburn also tried to appeal to the human nature of Reposa's case, pleading with Hohengarten to reclaim authority over the duration of his client's sentence because "it was your sensibility that was offended," so it should be her punishment to dole out. Blackburn also got quite personal, telling the judge that Reposa is his child's godfather, and that the kid's baptism is set for January, meaning Reposa cannot be there – which apparently led to questions from the involved priest about whether Reposa was the right choice to be godfather to begin with ....

Blackburn told Hohengarten he'd personally put $10,000 up as collateral for Reposa's bond, on which the judge also did not bite. She insisted that she no longer holds authority to rule on the case, redirecting attention to Davis, "the one person who could hear this motion and make a decision." In fact, she considers Davis the only judge with power to issue any consequential ruling in the case, no matter the court.

Which might prove a problem moving forward. Because Davis oversaw guilt/innocence in Reposa's first contempt trial, and because of the way he's handled Reposa's antics during this case's proceedings, Reposa and his counsel have long believed that the judge cannot be an objective arbiter, and in October filed a motion for his recusal, thereby barring him from issuing any action on Repo­sa's fate until another judge (!) can rule on that motion. No hearing date has yet been set. When one finally gets scheduled, it may already be time for the March primary.

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Adam Reposa, Nancy Hohengarten, Court of Criminal Appeals, Elsa Alcala, Bert Richardson, David Newell, Mario Flores, McKinley Melancon, Texas Code of Judicial Conduct, Paul Davis

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