RE: HCN, April 29, 2017 Letter to Editor — “Where’s the due process?”

Released on behalf of Dave Eagle, Hood County TEA Party Vice President.


Mr. Roger Enlow, Editor

Hood County News

P.O. Box 879

Granbury, Texas 76048

         RE: HCN, April 29, 2017 Letter to Editor — “Where’s the due process?”

Dear Mr. Enlow:

            Sometimes one cannot sit idly by and not speak out.  Now is such a time.  I reference a letter to the editor published in the April 29, 2017 edition of the HCN entitled “Where’s the due process?” penned by Lloyd “Butch” Barton, Hood County Commissioner, Pct. 2.

            In his letter, steeped with recalcitrant indignity, Mr. Barton bemoans the fact that the Hood County Commissioners were recently the subject of a 12-18 month Texas Attorney General’s investigation for alleged violations of the Texas Open Meetings Act.  Mr. Barton goes on to lament that he suffered some sort of due process atrocity because the AG’s office dared to take a look at whether the Commissioners were complying with the Open Meetings Act and to question whether the Hood County Commissioners routinely conduct their business in an open and transparent manner.

            Question:  If you are doing everything you are supposed to be doing in an open and transparent way, then you should welcome and encourage outsiders to come in and take a look at what you are doing and how you are doing it.  Having someone look over your shoulder should not be an issue if you are open and honest.  After all, Texas has enacted statutes that mandate open and transparent government.  If my memory serves me correctly, Mr. Barton was required to at least take a couple of hours of training on the Texas Open Government Act.  Who oversees this?  The Texas Attorney General.

            According to the Texas Open Government Act, “the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”  (Tex. Govt. Code § 552.001).  What that means is if John or Jane Q. Taxpayer sees what he or she believes is a violation of the Texas Open Government Act, that citizen has a right to call that to the attention of the governing authority and to call out the government official for that perceived misconduct.  If the government official who is the recipient of this scrutiny does not like that, I’d suggest he go find a job in the private sector.  But I digress.

            Let’s explore due process for just a moment.  Amendments V and XIV of the US Constitution speak to the legal concept of due process, which dates back at least to the Magna Carta’s signing at Runnymede in 1215.  Since the enactment of the US Constitution, there are likewise mountains of case law that explore, explain and define due process.  So — What is due process?

            “Due process” is a legal term of art that breaks down into two different components — procedural due process and substantive due process.  The first question Mr. Barton needs to answer is whether he is complaining that some feigned substantive due process right was violated or whether some feigned procedural due process right was violated.

            Substantive due process relates to the government’s limited power to infringe on one’s individual rights to life, liberty or property based upon narrowly defined parameters.  Procedural due process has to do with the methodology which the government must follow to get to one’s life, liberty or property.

            In Mr. Barton’s case, I don’t think that either of these forms of due process come into play.  Someone, according to Mr. Barton, made an allegation to the attorney general’s office that the commissioners had conducted one or more illegal meetings in direct violation of the Texas Open Meetings Act.  Apparently those allegations were enough of a presentment that the attorney general’s investigators deemed it necessary to investigate the matter further.  Apparently those investigations uncovered enough information to justify a presentment of allegations to the District Attorney.  Apparently the District Attorney deemed that the allegations were enough to take the matter to a Grand Jury.

            Although Mr. Barton’s pro bono attorney sloughed off the allegations as a waste of time, apparently the AG’s office did not think it was a “waste of time” or they would not have conducted the investigation.  In addition, what would you expect to hear from a criminal defense lawyer who makes his living defending folks who are accused of all kinds of high crimes and misdemeanors.

              Based upon the evidence that was presented to the Grand Jury, according to Mr. Barton, the Grand Jury “no billed” him.  That should resolve the matter and Mr. Barton should feel exonerated.  Mr. Barton’s perceived “due process” rights were never called into play.

            On the other hand, had the Grand Jury moved forward with an indictment, then Mr. Barton’s constitutional right to procedural and substantive due process would have attached at that point in time.

            Based on Mr. Barton’s long-winded whine to the HCN, it appears that he does not like it when a citizen calls into question some of the activities in which he participates as an elected official.  We’re supposed to trust him and “let him do his job,” right?

            It’s sad to see that someone who holds an elected office such as the County Commissioner’s seat has no more knowledge of the law than Mr. Barton.  This is even more troubling in the fact that he also was an officer in the Air Force, which, by the way, I am grateful to him for his service to our country.  Be that as it may, based on Mr. Barton’s background, one would assume that he was at least offered a minimal classroom education on Constitutional Law and the meaning of due process via the Fifth and Fourteenth Amendments to the US Constitution.  Apparently this County Commissioner skipped out on those classes.

            John Jay, the first Chief Justice of the US Supreme Court, said it most succinctly:

“Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free . . . By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.”

            Mr. Barton wants to know, “Where’s the due process?”  It’s there.  It’s been there the whole time.  Mr. Barton just doesn’t know it.  I respectfully suggest that Mr. Barton learn what due process is before he makes a claim that his due process rights have been violated.

            Thank you for your attention to this.


            Dave Eagle, Citizen for Open and Accountable Government

cc:        Mr. Jerry Tidwell

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