EL PASO, Texas - ABC-7 got to the bottom of just how the district attorney's investigation into Pastor Tom Brown began.
The D.A.'s office is investigating Brown for allegations that he may have broken the law in his efforts to recall Mayor John Cook and city Representatives Susie Byrd and Steve Ortega.
In August, District Attorney Jaime Esparza said his investigation was prompted by a letter from the Texas attorney general. Through the Open Records Act, ABC-7 obtained the original complaint filed with the Attorney General's Office and the letter from the A.G. to Esparza's office.
The complaint was filed by the Washington, D.C.-based group Americans United for Separation of Church and State with the Charitable Trusts Section of the Texas Attorney General's office. In it, the group contends that, "materials promoting this recall have been featured on the (Brown's) ministry's website, along with specific calls that the three be removed from office. Tom Brown's Ministries may also be in violation of Texas law." The group, in its complaint, also provided printouts of Brown's ministry website in which Brown directs people on where to sign up for the recall petition and writes an open letter to City Council. In one of the website's printouts, Brown writes about disillusioned voters and, "that is why we are helping to recall the mayor and two city representatives."
Americans United, in its letter to the A.G., quotes the Texas Election Code, which states that Texas corporations, including nonprofits, are prohibited from making any "political contributions or political expenditures in connection with a recall election." Violation of that section of the election code is a felony of the third degree.
Brown has maintained he did not break the law. Joel Oster, Brown's newest attorney from the Alliance Defense Fund, argues that the Supreme Court decided that it is perfectly legal for the recall group to mount their campaign against Cook and the two city representatives because it falls under freedom of speech, even if that campaign was carried out through churches like Brown's ministry.
Brown's attorneys also contend the election code itself is unconstitutional and should not be enforced.
An investigator with the attorney general's office forwarded American United's letter to the district attorney's office because the A.G's Charitable Trusts Section only investigates nonprofits for issues relating to misuse of funds.
In the letter to Esparza, an investigator with the Texas Attorney General's Office writes, "Since this complaint references possible criminal consequences for violation of the applicable law, I am referring this matter to your office for review and consideration."
The Attorney General's Office does not have the authority to order the D.A. to investigate a claim, and it did not do that, said an A.G. official and Esparza.
"Our office simply forwarded a complaint letter we received to the appropriate authorities for their consideration of these allegations. We did not 'refer' it to the D.A. for its 'investigation.' Those are very different actions," wrote Thomas Kelley, an official with the A.G.'s press office, who responded to ABC-7's questions via email.
"Each referral stands on its own and depending on the referral and depending on the issue, then we make a decision of whether or not to continue the investigation," Esparza said in a phone interview on Wednesday. Esparza also said that it was his and not the attorney general's idea or order to investigate Brown.
"Based on the type of complaint that they referred to us, we felt it was necessary to start an investigation to determine whether or not any prosecution was necessary, and we're still in the investigative phase," Esparza said .
Brown contended that an investigation is not necessary
"The Americans United for the Separation of Church and State is a radical organization that only criticizes conservative churches, but they give the pass to liberal churches." Brown also said the investigation into his actions was "political persecution."
"The D.A. knows where the complaint came from. It came from a left-wing organization that only persecutes conservative churches," Brown added.
Robert Boston, American United's senior policy analyst, said Brown's description of the group was a mischaracterization.
"Pastor Brown's claims that we only look at conservative churches are completely false and only show his ignorance of our organization and the work that we do. As a matter of fact, the instance that got us interested in this issue was way back in 1988 and it involved the Rev. Jesse Jackson, who was campaigning in liberal churches."
Boston said it was Texas residents who tipped them off about the recall campaign. He said they keep their sources confidential but did say it was not an elected official or anyone affiliated with the city of El Paso or to the three elected officials who are the targets of the recall.
"The incident involving Pastor Tom Brown was especially egregious to my mind because he was essentially organizing a recall campaign for the mayor and two members of the city council from a ministry," Boston said.
Brown maintains that American's United, which also filed a complaint with the Internal Revenue Service about him, is biased.
"That's not fair and I don't think the district attorney should be using a politically left wing organization to try to persecute a conservative pastor," he said.
Esparza said his office did not handle the complaint any differently than others.
"We treated it just as if we received a referral from a law enforcement agency," Esparza said. "And we made a decision as to whether or not more action was appropriate."