Find out why Tarrant County is paying to prosecute and defend 2 former jailers
Two former county jailers face criminal charges for allegedly lying about checking on an inmate, who later died in custody. While the county prosecutes them, it is also paying for their defense in a federal lawsuit.
Darien Kirk and Erik Gay were indicted in 2020 on charges of tampering with a government record with the intent to harm or defraud another. The state contends that Kirk and Gay lied about checking on 28-year-old Javonte Myers, an inmate who later died in his cell. The Tarrant County Medical Examiner's Office lists Myers’ cause of death as a seizure disorder.
Myers’ mother, Sondrea Miller, is also suing Kirk, Gay and the county on the same grounds as the criminal case. The federal lawsuit, filed in April, says Myers lay dead in his cell for hours before he was discovered. The jail knew about Myers’ seizure disorder and other physical and mental health issues, the lawsuit states, and it blames the jailers’ "deliberate indifference” for Myers' death.
On May 17, the Tarrant County Commissioners Court voted unanimously to pay lawyers to defend Kirk and Gay in that lawsuit. The agreement requires the hired lawyers to do what they can to keep costs under $30,000 per jailer.
Why would Tarrant County prosecute these former jailers in criminal court and then pay to defend them in civil court?
It’s required by law, County Administrator G.K. Maenius told commissioners on Tuesday.
He pointed to the Texas Local Government Code, which declares that county employees who get sued for something they did in the course of their job have a right to legal representation from the county.
If “it reasonably appears that the act complained of may form the basis for the filing of a criminal charge against the official or employee,” the commissioner’s court can hire outside lawyers. That’s what Tarrant County did in this case.
“The reason that we’re seeking outside counsel is because the District Attorney’s office is conflicted out of this one,” Maenius said, referring to the simultaneous criminal case.
Commissioner Roy Charles Brooks then asked for some clarification.
“We have no choice?” Brooks said.
“That’s correct,” Maenius said.
The irony of the situation was clear to Thomas Torlincasi, a local resident and frequent commenter at public meetings in Tarrant County.
“As a taxpayer, what I’m hearing is, is that we pay for these two individuals’ prosecution, and we pay for these two individuals’ defense,” Torlincasi said during public comment.
It's typical for both public and private employers to agree to provide defense for their employees in lawsuits, said David Kwok, an associate professor at the University of Houston Law Center who specializes in white collar crime and “governments gone bad.”
“It makes sense to have a unified approach if someone is accusing your organization and your individual employees of some sort of wrongdoing,” Kwok said.
People probably wouldn’t want to work for an employer that won’t protect them in case of a lawsuit, Kwok added. However, they only get protection if what they’re being sued for is related to their job duties.
"If some employee goes out and just goes on a murderous rampage […] that can be a relatively straightforward argument that what they were doing was not in the course of their business, and that therefore their employer would have no duty to pay for an attorney,” he said.
This usually applies to former employees, too, Kwok said. Kirk and Gay both no longer work for the Tarrant County Sheriff’s Office, spokesperson Robbie Hoy said in an email.
Hoy said he could not confirm the manner of their departure, but the Fort Worth Star-Telegram reported in 2021 that Gay was fired after an investigation, and Kirk resigned before the investigation was complete.
Both the criminal cases and the lawsuit against Kirk and Gay are ongoing, and the outcome of one could end up influencing the other, Kwok said.
"If the government thinks that they have a strong enough criminal case against an individual, there is an incentive for the civil folks to sit back for a moment,” he said. “Because if you go ahead and let the criminal case proceed and they convict, that can make a much easier case for the civil litigants.”
Kwok also points out that criminal courts and civil courts have different goals. Civil court cases, like lawsuits, are designed to figure out if someone is owed money for a wrongdoing. Criminal courts decide whether someone deserves a punishment for wrongdoing, like jail time.
It’s unusual for a connected criminal and civil case to be happening at the same time, but because they’re separate, Kwok said, Tarrant County’s situation isn’t necessarily a conflict of interest.
"Is it awkward? Certainly,” he said. “I think, of course, Tarrant County would be happier if no one did anything wrong."
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