U.S. Department of Justice 

Office of the Inspector General 

An Investigation of the Department of 

Justice’s Actions in Connection with 

the Search for Absent Texas Legislators 

Office of the Inspector General 

August 12, 2003 

 
AN INVESTIGATION OF THE DEPARTMENT OF JUSTICE’S ACTIONS IN 

CONNECTION WITH THE SEARCH FOR ABSENT TEXAS LEGISLATORS

I. INTRODUCTION 

 On May 11, 2003, over 50 members of the Texas legislature left Texas to 

prevent a quorum in the Texas House of Representatives so that a proposed redistricting plan could not be voted upon. On Monday, May 12, the Chief Clerk 

of the Texas House of Representatives issued warrants directing “any Peace 

Officer of the State of Texas” to “send for and arrest” the absent legislators and 

return them to the Texas House of Representatives.1 See Exhibit A. At that 

time, the Texas Department of Public Safety (DPS) began efforts to locate and 

return the absent legislators to Texas. It was widely reported that DPS 

employees, other Texas officials, and Congressional staff contacted various 

federal agencies for assistance in locating and returning the absent Texas 

legislators. 

 Shortly thereafter, several Members of Congress requested that the 

Inspectors General at three agencies – the Department of Homeland Security 

(DHS), the Department of Transportation (DOT), and the Department of Justice 

(DOJ or the Department) – investigate what role their respective agencies 

played in the search for the absent Texas legislators. As a result of these 

requests, the Offices of the Inspector General at DHS and DOT issued 

investigative reports about this matter.2 

 This report describes the results of the DOJ OIG investigation. In this 

investigation, we attempted to identify any request made to a DOJ employee for 

assistance in finding or returning the Texas legislators, and what those DOJ 

employees did in response to the requests. 

 The OIG determined that Department employees received various 

inquiries and requests for assistance in connection with the absent Texas 

legislators. Requests were received by Department employees at the Main 

Justice Building in Washington, D.C.; by Federal Bureau of Investigation (FBI) 

offices in Texas and Oklahoma; and by the United States Attorney in the 

Western District of Texas. We found that, in response to these requests, 

Department employees, with one exception, recognized that this was a state 

 1 The warrants were administrative in nature (rather than based on a criminal or civil 

statutory violation) and were provided for by the rules of the Texas House of Representatives. 

2 On June 13, 2003, the DHS OIG issued its redacted Report of Investigation that 

discussed the role of the DHS Air Marine and Interdiction Coordination Center in the search for 

the aircraft transporting the Texas legislators. On July 11, 2003, the DOT OIG issued its 

report, which describes the actions of the Federal Aviation Administration (FAA) in the efforts 

to locate the aircraft. 
matter and did not provide any assistance to the search for the Texas 

legislators. 

In one instance, an FBI special agent in Texas received a request for 

assistance from an employee of the Texas DPS who was searching for two of 

the absent legislators. The DPS officer and the FBI special agent worked 

together on a local Joint Terrorism Task Force (JTTF).3 The FBI special agent 

also had previously worked with (and was personal friends with) one of the 

Texas legislators who the DPS was attempting to locate. To assist the DPS 

officer, the FBI special agent made two calls to the cell phone of the absent 

legislator who he knew. The FBI special agent spoke to his legislator friend, 

and the legislator told the FBI special agent that he and other legislators were 

in Oklahoma. The FBI special agent relayed this information to the DPS officer. 

 

Except for this one incident, Department employees responded that they 

would not take any action in response to those requests or become involved in 

any way in the search for the Texas legislators. 

II. THE OIG INVESTIGATION 

 

As noted above, the purpose of our investigation was to determine 

whether any Department resources were used to assist in the search for, or 

return of, the missing Texas legislators. Our investigation was therefore limited 

to those employees and components within the Department of Justice, 

including the FBI, United States Marshals Service (USMS), the United States 

Attorneys’ Offices, and Justice Department Headquarters in Washington D.C. 

The OIG sought to uncover any requests to DOJ employees for assistance 

with the search for, or the return of, the Texas legislators who were absent 

from May 11 through May 15, 2003. We did not investigate – and it is beyond 

the scope of our jurisdiction to review – the basis for or the appropriateness of 

any actions taken by other federal or state officials in connection with the 

search for the missing Texas legislators. 

In our investigation, we pursued all known or reported leads that 

suggested potential involvement by DOJ employees in the search for the Texas 

 3 A JTTF is a group composed of various law enforcement agencies that focuses on

terrorism and terrorism-related matters. Each of the FBI’s 56 domestic field offices now leads a 

JTTF in its respective geographic area of responsibility. The FBI’s New York Division formed 

the first JTTF in 1980. Participants in JTTFs include the Bureau of Immigration and Customs

Enforcement in DHS; U.S. Secret Service; USMS; U.S. Customs Service; Offices of the Inspector 

General; Postal Inspection Service; Internal Revenue Service; Department of the Interior

Bureau of Land Management; U.S. Park Police; Defense Criminal Investigative Service; and 

other federal, state, and local law enforcement agencies.

2 
legislators. In addition, we conducted a canvas of those DOJ offices most likely 

to have been involved in this matter, including the FBI, U.S. Attorney, and 

USMS offices in Texas and in the Eastern and Western Districts of Oklahoma 

to determine if they received any requests for assistance in connection with this 

matter. 

Although the actions of the Texas DPS in connection with this matter are 

beyond the scope of this report and the jurisdiction of this office, we sought 

information from the DPS about its contacts with DOJ employees. In addition, 

to the extent that the Texas DPS possessed notes or documents that may have 

corroborated or shed light on the contacts between DPS and DOJ employees, 

we asked the DPS for these notes or the reasons why those notes no longer 

exist.4 

In pursuing our investigation, the OIG conducted more than 25 

interviews. We interviewed employees from the DOJ, the FBI, the USMS, the 

Texas DPS, the Texas Attorney General’s Office, and the Office of United States 

Majority Leader Tom DeLay. We also obtained and reviewed e-mail, telephone, 

and computer records that relate to the inquiries made to the DOJ about the 

missing Texas legislators. 

In the following sections of the report, we describe in detail the results of 

our investigation. Section III contains our factual findings. In that section, we 

detail the various inquires and requests which were made to Department 

officials in connection with the search for and return of the missing legislators, 

and the actions of Department employees in response to those requests. We 

examine each request individually, first reviewing those made to Department 

Headquarters, then those made to the FBI, followed by the requests to the U.S. 

Attorneys’ and USMS offices. In Section IV, we identify the policies which 

govern the actions taken by the Department in connection with this matter, 

and we assess whether those policies were violated. In Section V, we provide 

our conclusions and recommendation. 

 4 The investigation of any allegations of misconduct by DPS employees or any 

allegations against DPS employees for destroying documents would be outside the 

jurisdiction of the OIG. Rather, these matters would be within the jurisdiction of 

Texas State officials. In addition, any allegations of possible federal criminal violations 

related to the destruction of documents would be under the jurisdiction of the FBI, not

the OIG. However, in our limited interviews of DPS officials, we did not see evidence 

demonstrating a federal criminal violation. 

3 
III. FACTUAL FINDINGS 

A. Department of Justice Headquarters 

1. Inquiry from the Office of United States Majority Leader 

Tom DeLay 

On May 13, 2003, William Moschella, the Assistant Attorney General in 

the Office of Legislative Affairs (OLA), received a call on his cell phone from a 

counsel to Majority Leader Tom DeLay (the Counsel).5 The Counsel previously 

had served as a Principal Deputy in OLA and, prior to that, had worked with 

Moschella as a staff member on the House Judiciary Committee. Moschella 

said he was in a meeting when the call came in, but when he returned to his 

office shortly thereafter, sometime between 8:30 a.m. and 9:30 a.m., he called 

the Counsel back and had a short conversation of about five minutes. 

According to Moschella, the Counsel said he was calling to find out if the 

Department of Justice had any legal authority to intervene in the Texas 

legislators matter, although the Counsel said he thought he knew what the 

response would be. Moschella told the OIG that he understood the Counsel to 

mean that he knew the response would be “no.” 

Moschella said the Counsel did not ask him to take any action, and 

phrased his request as a legal question. The Counsel also told Moschella that 

he had already spoken to Johnny Sutton, the U.S. Attorney for the Western 

District of Texas. Moschella remembered that the Counsel mentioned that 

Sutton was traveling and the Counsel had reached Sutton at the Dallas airport. 

Moschella told the OIG that he anticipated that the answer to the 

Counsel’s question would be no, the Department could not intervene. 

However, because this issue was not a matter within Moschella’s substantive 

jurisdiction, he said he decided to consult with other Department officials and 

he agreed to get the Counsel a quick answer. 

Moschella then e-mailed Edward Whelan, the Acting Assistant Attorney 

General in the Department’s Office of Legal Counsel (OLC). Moschella copied 

Deputy Assistant Attorney General Alice Fisher and Assistant Attorney General 

Michael Chertoff, both of the Criminal Division, on the e-mail. In the e-mail, 

Moschella described his conversation with DeLay’s Counsel and asked whether 

 5 Moschella informed the OIG that, as a matter of policy, OLA does not normally release

information about who has contacted it for advice, or the substance of those contacts. 

According to Moschella, this policy is intended to encourage Members of Congress and their

staff to contact OLA with concerns relating to DOJ policy issues. He said that disclosure of 

specific inquiries could chill OLA’s relationship with Members of Congress. In this instance, 

however, Majority Leader DeLay’s office has already disclosed the fact that his staff contacted 

OLA in connection with this matter, and Moschella agreed to provide the details of the contact. 

4 
“the Department has the legal authority to assist the Texas House’s Sergeantat-Arms enforce the ‘arrest’ warrant issued to bring certain Texas State 

legislators back to Texas to vote.” The e-mail stated that the Counsel had 

already spoken to U.S. Attorney Sutton, whose opinion was that the 

Department did not have authority to intervene. The e-mail asked that 

something be turned around in a “couple of hours” and suggested that “we give 

them a preliminary read with the caveat that their [sic] are substantial issues 

to consider.” 

In response to the e-mail, Fisher called Moschella on the telephone. She 

told the OIG that her response to Moschella was that the Criminal Division is 

not involved in enforcing warrants – that is the responsibility of the USMS. 

She referred Moschella to Associate Deputy Attorney General Paul Murphy, 

who handled USMS issues for the Deputy Attorney General’s Office. Fisher 

said she told Moschella that “this is not something the Department should be 

getting involved with.” 

Whelan told the OIG that after he received the e-mail from Moschella, he 

sent a follow-up question to Fisher and Chertoff, asking if they knew of any 

federal criminal violations that had occurred in the Texas legislator case. They

did not respond to Whelan’s e-mail. He told the OIG that he thought that any 

idea of the DOJ getting involved in this matter struck him as “wacko.” He said 

he presumed that Moschella was just checking, and that Moschella felt the 

same way he did. 

Whelan told the OIG he thought about the matter for a couple of minutes 

and could not think of any federal violation. He said he considered whether 

there might be certain arrangements with local law enforcement regarding 

assisting in detaining the people sought by Texas authorities. He said he 

therefore e-mailed his question to Paul Murphy asking, “If Texas asked the U.S. 

to arrest someone who was subject to an ordinary arrest warrant in Texas, is 

there some existing agreement that spells out the terms and conditions of any 

federal assistance? Or would this be an exercise of the inherent sovereign 

power of the United States to assist a State?” 

Murphy responded to Whelan’s e-mail with an e-mail stating that the 

USMS “does have the authority to pursue state fugitives . . . [b]ut that 

authority, I believe, is limited to assisting state authorities to execute courtissued felony warrants. I doubt that USMS, as it stands now, could take any 

action on this matter. That’s my initial take on the legal issue. From a 

practical standpoint, this is a hornet’s nest.” 

Moschella recalled a conversation he had with Whelan that same day in 

which they decided that the DOJ would not write a legal memorandum on this 

topic or conduct any further research. According to Moschella, within one to 

two hours of his original conversation with DeLay’s Counsel, Moschella called 

5 
the Counsel back to say that there was nothing the DOJ could do. Moschella 

said he explained that the DOJ had no legal “hook.” He also said he told the 

Counsel that the DOJ had not conducted an in-depth analysis of the issue. 

Moschella told the OIG he is not aware of any other inquiries or requests 

made to the DOJ in connection with the search for or return of the legislators. 

The OIG interviewed DeLay’s Counsel about his contacts with the 

Department on this issue. His recollection was substantially similar to that of 

Moschella’s. Like Moschella, the Counsel described the two conversations he 

had with Moschella on May 13, a few hours apart. The Counsel told the OIG 

that he asked Moschella, “As a matter of law, is it appropriate for the 

Department of Justice to assist the state of Texas to execute the warrants for 

the Texas legislators?” The Counsel told the OIG that he explicitly informed 

Moschella that he was simply asking him to look at a legal issue and was not 

asking him to take specific action. The Counsel said that Moschella stated that 

he understood the nature of the inquiry, and a few hours later Moschella told 

the Counsel that the Department would not get involved. 

The Counsel told the OIG that he viewed his actions in bringing this 

request to Moschella as constituent service, because Texas officials had asked 

for Congressman DeLay’s help in this matter. The Counsel stated that he was 

not aware of any other DOJ employees being contacted other than U.S. 

Attorney Sutton. The Counsel also said he did not know of any DOJ 

involvement in the search for the missing Texas legislators. 

2. OLA’s Statement Regarding the Department’s Involvement 

in the Texas Matter

On May 13, 2003, OLA received a letter from Representative John 

Conyers about the Texas matter. The letter stated that federal intervention in 

the issue would be inappropriate and asked “on what authority any Federal 

intervention would be based, and what precedent, if any, exists for Federal 

action in such a case?” Moschella told the OIG that he wanted to respond to 

the letter right away, because he knew the DOJ had not been involved in the 

matter. 

A member of his staff drafted a response for Moschella’s signature. 

Within the next few days, pursuant to its normal practice, the draft response 

was circulated to the Criminal Division, the Civil Rights Division, the Deputy 

Attorney General’s Office, the Executive Office for United States Attorneys, and 

the FBI. The staff member also verified with all four U.S. Attorneys Offices in 

Texas that they had taken no action to assist with the search for or return of 

the absent Texas legislators. 

6 
The original draft of the response letter stated in part, “Accordingly, we 

have no plans to deploy our law enforcement resources in connection with this 

matter.” A Special Counsel in the FBI’s Office of Congressional Affairs who 

reviewed the letter said she had some concerns about the tense used in that 

sentence, because she thought that by the time the letter was issued the 

legislators would be back in Texas. She told the OIG that, in her opinion, it did 

not make sense to say that the Department had “no plans to deploy,” when 

future deployment would essentially be moot. She therefore suggested 

substituting the phrase “have not deployed.” It appears that her suggestion led 

the DOJ to state in the letter that they “have not deployed and have no plans to 

deploy our law enforcement resources in connection with this matter.” The FBI 

Special Counsel told the OIG that at the time she reviewed the letter she was 

not aware of any involvement by any FBI employee in the search for the Texas 

legislators.6 

On May 16, 2003, OLA sent the letter, signed by Moschella, which stated 

that, “We [the Department] are not aware of any information pertinent to the 

Texas State legislators that would warrant action by federal law enforcement 

authorities, including those of the FBI. Accordingly, we have not deployed and 

have no plans to deploy our law enforcement resources in connection with this 

matter.” A copy of the letter is attached as Exhibit B. The Department 

subsequently sent the letter to 30-40 other Members of Congress who had 

inquired about this matter. 

On May 30, 2003, the Department’s Office of Public Affairs issued a 

statement with similar language: “[T]he Justice Department is not aware of 

any information pertinent to the Texas State legislators that warranted action 

by federal law enforcement authorities, including those of the FBI. 

Accordingly, we did not deploy our law enforcement resources in connection 

with this matter.” 

B. Federal Bureau of Investigation 

The OIG canvassed various FBI offices to determine if they had any 

involvement in the search for the absent Texas legislators, and we interviewed 

several FBI employees about this matter. The following sections describe the 

results of our investigation. 

 6 As detailed below, an FBI special agent in Corpus Christi already had made several 

calls in connection with the search for the legislators. However, the FBI Special Counsel did 

not know of these calls when she reviewed the letter. She said she did not learn about the calls

until she read about them in the press on June 7, 2003. 

7 
 1. FBI Headquarters 

The OIG interviewed two members of the FBI’s Office of Public and 

Congressional Affairs (OPCA) because we were informed that requests for 

assistance received at FBI Headquarters likely would go to the attention of that 

office. The OPCA is the only section within the FBI that is authorized to 

respond to Congressional requests. The OPCA employees we interviewed said 

they were unaware of any requests for assistance with the search for or return 

of the Texas legislators. 

 2. FBI Dallas Division 

The Chief Division Counsel in the FBI’s Dallas Division reported that a 

special agent in the FBI’s Sherman, Texas, Resident Agency (RA), received a 

telephone call regarding the absent Texas legislators from a local Republican 

Party member whose name the agent could not recall. The special agent also 

could not remember the exact date of the call, but said it came in when the 

news began to be aired about the flight to Oklahoma of the missing legislators. 

The caller asked the special agent if the FBI could be “involved” if the Texas 

legislators crossed state lines. The agent explained that the only way the FBI 

could be involved was through an Unlawful Flight to Avoid Prosecution (UFAP) 

warrant, and only if the Austin District Attorney’s Office issued a criminal 

felony warrant and agreed to extradite and prosecute if the FBI located and 

arrested the legislators. The agent further explained that the current situation 

did not appear to be a criminal matter and that the voters or legislators should 

address this in the future. The Dallas Division of the FBI took no action and

had no other involvement in this matter. 

 3. FBI El Paso Division 

The Chief Division Counsel of the FBI’s El Paso Division reported to the 

OIG that the results of a survey of all division employees revealed that no 

El Paso Division employees had any involvement with the search for the Texas 

legislators. 

 4. FBI Oklahoma City Division/Ardmore Resident Agency 

We determined that the Ardmore, Oklahoma, RA of the FBI’s Oklahoma 

City Division was contacted by the Office of the Texas Attorney General in 

connection with the warrants for the absent Texas legislators, but the office 

declined to provide any assistance on this matter. 

An FBI special agent in Ardmore told the OIG that on May 12, 2003, he 

received a call from a southwest Texas area code. Although the caller identified 

himself, the special agent did not hear the name. The caller said that the 

8 
special agent should call the Attorney General of the State of Texas, and the 

caller said that the Attorney General was in the Speaker of the Texas House of 

Representatives’ office. The FBI special agent said he initially thought it was a 

crank call. He responded that the Attorney General could contact him at the 

same telephone number the caller had dialed. 

A minute later, the special agent received a call from Jay Kimbrough, 

whom the special agent described as the Attorney General (AG) for the State of 

Texas. (Kimbrough is, in fact, the Deputy AG.) According to the FBI special 

agent, Kimbrough stated that Texas authorities had tracked the absent Texas 

legislators to Ardmore, Oklahoma. According to the FBI special agent, 

Kimbrough said the legislators had flown in an aircraft and that they had “run 

out on Congress.” Kimbrough told the special agent, “we’ve got letters to order 

them back.” The special agent said he asked whether the letter was along the 

lines of a “contempt of Congress,” and Kimbrough said that it was. The special 

agent asked whether there was a state statute or federal statute involved, and 

Kimbrough said no. The special agent said he responded that, “It did not 

sound like there would be much the FBI could do, but he said he would check.” 

He asked Kimbrough to fax the letter to him. 

After receiving the faxed letter, the FBI special agent called his 

supervisor, a Senior Supervisory Resident Agent in Muskogee, Oklahoma, and 

discussed the letter. According to the special agent, the supervisor checked 

with the FBI Oklahoma Division’s Chief Division Counsel who agreed that this 

was not a federal matter and there was nothing the FBI could do. 

The special agent said he called Kimbrough back at the Office of the 

Speaker of the Texas House of Representatives. The special agent stated that 

the FBI could not be involved. He stated that it could become a federal matter 

if there was a state charge and Texas obtained a UFAP warrant based on the 

state charge.7 The special agent also told Kimbrough that, to request such a 

warrant in this case, he should address himself to the Austin RA of the FBI. 

The OIG interviewed Kimbrough about these conversations. Kimbrough 

stated that he called the FBI RA in Ardmore at the direction of Texas House 

Speaker Tom Craddick, who told him that a game warden in Oklahoma said he 

knew an FBI agent who had said he could help in returning the legislators 

because they had crossed state lines. Speaker Craddick gave Kimbrough a 

phone number, which turned out to be the number of the FBI RA in Ardmore. 

Kimbrough said he called the number and spoke with the FBI special agent. 

Kimbrough’s description of the two conversations was similar to that of the FBI 

special agent, and Kimbrough confirmed that the special agent’s ultimate 

response was that there was nothing the FBI could do. Kimbrough said he did 

 7 UFAP warrants are discussed in more detail in Section III.C.1. of this report. 

9 
not have any contact with any other Justice Department employee in 

connection with this matter. He said that, with the exception of the Ardmore 

FBI special agent and U.S. Attorney Sutton, he was not aware of any Justice 

Department employee being contacted in connection with this matter, other 

than what he has read in press reports. 

 

 5. FBI San Antonio Division/Brownsville Resident Agency 

The Special Agent in Charge (SAC) of the San Antonio Division, Patrick 

Patterson, reported that on May 12, 2003, two FBI special agents in the 

Brownsville, Texas, RA were contacted by a Texas Ranger. The Ranger asked 

the two special agents what the procedure was for establishing a “trap and 

trace” on a telephone. Both special agents informed the Ranger that this 

investigative technique required a court order. One of the special agents told 

the SAC who conducted the canvass that he was aware that the Ranger’s 

inquiry was made in connection with the search for the absent legislators. The 

other special agent told the SAC that he later surmised that the inquiry was 

made in connection with the missing legislators. Neither agent provided any 

assistance to the Texas Ranger on this matter. 

At the OIG’s request, a canvass of the FBI San Antonio Division did not 

reveal any other requests for information or assistance made of the division in 

connection with the absent legislators. 

 6. FBI Houston Division/Corpus Christi Resident Agency 

We determined that, in response to a request from a DPS officer, an FBI 

special agent in the Corpus Christi RA telephoned one of the absent Texas 

state legislators to obtain information about his location and the location of one 

other legislator. The FBI special agent subsequently provided this information 

to the DPS officer. The following sections describe this incident. 

 a. Telephone Call to Representative Juan Escobar 

The Corpus Christi FBI special agent told the OIG that he first learned of 

the Texas legislators’ departure for Oklahoma on the news as he was driving to 

work. He could not recall the exact date, but the records make clear that the 

date was May 13. When the special agent reached the office that morning, 

another FBI employee told him that information about the absent legislators 

had come across their TCIC printout.8 The TCIC bulletin included the name of 

 

(cont’d) 

8 TCIC stands for the Texas Crime Information Center. TCIC printouts contain data on 

warrants, convictions, and other information relevant to law enforcement. According to the FBI 

special agent, if the TCIC contains information relevant to the Corpus Christi area or to one of 

their cases, that information is shared within the office. The OIG confirmed that on

May 12, 2003, at 6:09 p.m., a message was sent to all Texas law enforcement agencies stating: 

10 
a former Border Patrol agent and colleague, Representative Juan Escobar, who 

had been a member of the Organized Crime Drug Enforcement Task Force 

(OCDETF) in Corpus Christi prior to becoming a Texas state legislator in May 

2003. According to the special agent, he got teased that day for being friends 

with a “fugitive” because of the employees who worked in the Corpus Christi 

FBI office he was the person who was the friendliest with Escobar. 

The FBI special agent told the OIG he has known Escobar for 12 years 

and first met him when Escobar was an Immigration and Naturalization 

Service (INS) agent. During the past four years, while Escobar had been with 

the INS, the two men had spent many hours together working on OCDETF

cases, and they had become personal friends. Escobar, who left the Border 

Patrol in March 2003 to run for Texas state representative, was elected in a 

special election in early May 2003. 

The FBI special agent said that sometime during the morning of May 13, 

he was speaking on the telephone with a sergeant from the Texas DPS. They 

had been planning to work together that day in connection with a JTTF 

matter.9 The DPS sergeant informed the FBI special agent that he would not 

be able to work that day on their JTTF matter because the sergeant, along with 

most of his unit, had been reassigned to locate the missing Texas legislators. 

While the sergeant recalls speaking with the special agent about Escobar that 

morning, he does not recall this specific conversation. In particular, he does 

not recall asking the special agent to call Escobar.

The FBI special agent said that he and the sergeant speak on the phone 

almost every day related to their JTTF work. The special agent was unable to 

say, with respect to the telephone call in connection with the search for the 

absent legislators, whether he had called the sergeant initially, or whether the 

 

“The following fifty-three legislators are reported to be absent from the 78th legislative session. 

Under the Texas constitution and the rules of the Texas House of Representatives, these

individuals are subject to immediate arrest. Your assistance is requested in locating these

absent legislators. If a legislator is located, notify the nearest office of the Texas Department of

Public Safety. DPS will transport the legislators back to Austin and deliver them to the floor of 

the House. If your agency has or develops any information concerning the whereabouts of any

absent legislator, please report that information to your local DPS office or call our tip line at 

1-800-525-5555.” The notice then listed the names of the legislators, their dates of birth,

driver’s license information, and last known addresses. The message was rescinded on 

May 13, 2003, at 8:45 p.m.

9 The FBI special agent had, for the past 12 years, worked a variety of cases, several of 

which have involved organized crime/drug enforcement task forces. These cases often involve

working with the Texas DPS. For the past eight years, he also has worked on OCDETF cases, 

and numerous DPS Narcotics and Special Crime Services (SCS) units have been members of 

the task force. Immediately after September 11, a JTTF was formed in Corpus Christi, which 

at times included the entire Texas DPS SCS unit in Corpus Christi. 

11 
sergeant had called him. At some point during their first conversation that 

day, he told the OIG, they began discussing Escobar. According to the special 

agent, he suggested that the DPS sergeant simply call Escobar to find out 

where he was and save himself the trouble in trying to locate him. The special 

agent explained that the DPS sergeant also had worked with Escobar over the 

past two years, so both he and the special agent had Escobar’s contact 

numbers.10 

According to the special agent, the DPS sergeant responded that he did 

not have Escobar’s numbers with him. The sergeant also said that the special 

agent knew Escobar better than the sergeant did, so Escobar might be more 

receptive to a call from the special agent. The special agent told the OIG that 

he therefore agreed to “reach out” to Escobar. 

Shortly thereafter, the special agent contacted Escobar on Escobar’s cell 

phone. According to the special agent, he and Escobar first chatted about nonwork matters, and the special agent congratulated Escobar on his election, 

since it was the first time they had spoken since the election. After the “small 

talk” including mention of Escobar’s retirement party from the INS, Escobar 

began to explain what was going on with the legislators. He said the legislators 

had been busy in session dealing with school financing and similar issues, and 

“all of a sudden” the issue of redistricting was raised by the governor, so he 

and his fellow legislators had “left.” Escobar said he was in Oklahoma with 

“the rest of them,” and that they would not be leaving until the legislative 

session was over. 

The FBI special agent told the OIG that during the conversation Escobar 

“admitted” that he was in Oklahoma with the other legislators. The special 

agent said he commented to Escobar something to the effect that, “one minute 

he’s a law abiding citizen working with us, and the next minute he’s a fugitive.” 

The special agent said his comment was made in a joking manner. Escobar 

mentioned that a member of the Texas Rangers was in Oklahoma verifying the 

location of the legislators. Escobar then said that he had to go and would call 

the special agent back later. According to the special agent, this conversation, 

which occurred before 10 a.m., lasted five minutes or less. 

Although Escobar’s recollection of the details of this conversation was 

somewhat different, the main points were similar. According to Escobar, 

sometime on May 13 he received a phone message from the FBI special agent.11 

 10 The special agent told the OIG that he assumed Escobar was in Oklahoma with the 

other legislators. (The fact that a number of the legislators were in Oklahoma had been 

reported on the news that morning.) 

11 Representative Escobar said this message may have been as early as 12:20 a.m. on 

May 13. 

12 
The message was brief and simply requested a call back. Escobar called the 

special agent’s office number, and the phone was answered by one of the 

support staff at the FBI office in Corpus Christi. She commented something to 

the effect of, “My, my Juan, you’re gone, and there’s a list for you guys.” The 

FBI special agent was not in the office, so Escobar said he left a message for 

him. 

According to Escobar, the special agent called him back at approximately 

11 a.m., and they had a brief conversation lasting a minute or so. Escobar 

said the special agent asked, “Hey, how are you doing?” and Escobar replied, 

“Okay.” The special agent asked, “Are you in Oklahoma?” and Escobar said, 

“Yes.” The special agent responded, “Okay.” They then had a brief 

conversation about personal matters, such as how their families were doing. 

Escobar said the special agent said something to the effect of, “Talk to you 

later,” and the conversation ended. 

Escobar said he thought the call was a personal call, although it “sent a 

flag” because he had not heard from the special agent in some time. Escobar 

stated that his previous conversation with the special agent had occurred 

shortly before Escobar had resigned from the INS on approximately March 20, 

2003. On that occasion, Escobar told the special agent he was leaving to run 

for office. The special agent told him to take care and wished him luck. 

Escobar noted that the special agent did not contact him during the campaign 

and did not contact him to congratulate him on winning the election. Escobar 

said that between March 20, 2003, and May 12, 2003, Escobar had not heard 

from the special agent. 

Escobar explained that he had known the special agent since 1991, 

when Escobar arrived in Corpus Christi. He and the special agent began 

working closely together in approximately 1999. From that point on, they 

worked together on a daily or weekly basis, depending on the requirements of 

their cases. The special agent had Escobar’s home and personal cell phone 

numbers, and there were many occasions when the special agent contacted 

Escobar at his home in connection with their task force work. 

Escobar at one point told the OIG that the special agent “never” called 

unless it was work related. However, he acknowledged that the two had been 

bike riding together “a couple of times” the previous fall, and when Escobar 

was recovering from a knee injury the special agent had called him multiple 

times in connection with that. After Escobar re-injured his knee in January 

2003, they stopped going on bike rides. 

 b. Additional Telephone Calls About Escobar 

After speaking with Escobar on May 13, the FBI special agent called the 

DPS sergeant to say that Escobar was in Oklahoma, so that the DPS did not 

13 
need to do any surveillance on him. The special agent told the OIG he could 

not recall whether he reached the sergeant directly or not, and that he may 

have relayed this message to someone else at SCS. 

We interviewed the DPS sergeant, who told us that the conversation in 

which the FBI special agent informed him that Escobar was in Oklahoma was 

the first conversation he could recall having with the FBI special agent that 

day. The sergeant said he believes the FBI special agent contacted him rather 

than the other way around. According to the sergeant, he told the special 

agent that he was “tied up looking for Texas legislators,” and the special agent 

responded, “I figured that.” The special agent then told the sergeant that 

Escobar had called the special agent and said that he was in Ardmore, 

Oklahoma – that they [the Texas legislators] were all up there in Oklahoma. 

The sergeant said he had not told the special agent that he was doing 

surveillance on Escobar. He said he would not have told him that because that 

was not the case. According to the sergeant, during this call he did not realize 

that the “Escobar” the special agent was referring to was the same Juan 

Escobar they had both worked with on the drug enforcement task force. It was 

not until the sergeant passed the information on to his captain that the 

sergeant was informed by the captain that the Escobar in question was a 

former law enforcement colleague. 

According to the DPS captain, whom we also interviewed, she and the 

DPS officers under her command were assigned to find a number of the absent 

legislators, although Escobar was not among those they were assigned to find. 

Nonetheless, once she learned from the sergeant that the FBI special agent had 

spoken with Escobar, she contacted the DPS Command Center to find out if 

DPS also was looking for Escobar. The captain reported to the lieutenant at 

the command center that the FBI had made contact with Escobar. The 

lieutenant responded that he was not the one “calling the shots.” The captain 

offered to call the FBI special agent to confirm the information about Escobar, 

and the lieutenant told her to go ahead and do so. 

According to the DPS captain, she then called the FBI special agent. The 

captain, who is also a member of the JTTF task force, said she speaks with the 

FBI special agent on the phone an average of three to four times a week. She 

asked the FBI special agent where Escobar was. The special agent told her 

Escobar was in Oklahoma, that they were all in Oklahoma. The captain told 

the OIG that this conversation lasted less than five minutes, perhaps as little 

as two minutes. She said the conversation gave her the impression that the 

FBI special agent had called Escobar because he knew him, not as an “official 

act.” She stated that his tone was that it was a call to someone with whom he 

worked. After the conversation with the special agent, the captain called the 

DPS Command Center and reported that she had confirmed that the FBI had 

information that Escobar was in Oklahoma. 

14 
The FBI special agent and Escobar had a number of additional 

conversations that day. According to the FBI special agent, Escobar called the 

special agent again approximately 30 minutes after their first conversation. In 

a short telephone call, Escobar asked the special agent whether he had 

previously called that day on behalf of himself or on behalf of the FBI. The 

special agent responded that he could not answer for the FBI as a whole, 

because he did not know what it was doing in Austin or in other parts of the 

country, but that neither he nor anyone in the FBI Corpus Christi RA was 

looking for Escobar. The special agent told the OIG he was not sure why 

Escobar called him back to ask this question, but he suspected that after 

talking with others in Oklahoma, Escobar became concerned that the FBI was 

looking for him. During this phone call, the special agent said he told Escobar 

that he hoped Escobar “knew what he was doing,” because if DPS had obtained 

a warrant and Escobar had crossed state lines to avoid the warrant, then, if 

requested, the FBI could get a UFAP warrant. The special agent told the OIG 

that his motive in making these statements to Escobar was that, as a friend of 

Escobar, he did not want to see Escobar’s law enforcement work and integrity 

“go down the drain” over this. He was concerned that this could impact 

Escobar's ability to get a concealed handgun permit, or otherwise negatively 

impact what he had worked so hard for as a law enforcement agent.12

Escobar first told the OIG that he could not recall such a conversation. 

He said he did not recall the FBI special agent ever mentioning the warrant. 

He also told the OIG that the special agent never threatened him or pressured 

him to come back. After reviewing his cell phone records, he said he may have 

called the special agent back at the end of the day to ask him what his calls 

had “been about,” but he was not sure he had reached the agent to ask him 

this question. He said he may have simply reached support staff at the FBI 

office. 

c. Phone Call to Determine the Location of Representative 

Canales 

In the late afternoon that same day, May 13, at approximately 4:00 p.m., 

the FBI special agent learned that the Texas DPS had been assigned to conduct 

surveillance at a location where Texas State Representative Gabi Canales was 

expected to speak. The special agent told the OIG that he was not certain from 

whom he first learned of this planned surveillance. However, the DPS captain 

told the OIG that she or the DPS sergeant had called the special agent again on 

May 13 to tell him that their unit might have to do surveillance to locate 

Canales. She said they called because they did not want to expend DPS 

resources needlessly conducting surveillance on someone who was out of state. 

 12 This reflects the special agent’s mistaken belief that the warrant in question involved

potentially serious criminal and civil consequences. 

15 
As a result, the DPS wanted the special agent to call Escobar again to find out 

if Canales was with him in Oklahoma. 

According to the DPS sergeant, he told the FBI special agent, “If you’ve 

got contact with Juan [Escobar], could you call and see if Gabi Canales is in 

Ardmore too, because maybe then they'll cut us loose.” The special agent 

responded that he would try. The special agent told the OIG that surveillance 

is labor intensive and costly, and based on what Escobar had said during their 

earlier conversation (that he was there with the “rest of them”), there was no 

doubt in his mind that Canales was in Oklahoma with Escobar. 

According to the special agent, he called and left a message on Escobar’s 

cell phone. In the message, he said he was calling to find out if Canales was in 

Oklahoma, because the DPS was going to try to find her. The special agent 

said he asked Escobar to call him back if he could so they would not have to go 

“sit wherever they were going to sit.” According to the special agent, Escobar 

called back approximately 40 minutes later. Escobar told the special agent 

that Canales was in Oklahoma with him and that she did not plan to leave. 

Escobar said the phone call was less than a minute long. According to both 

the special agent and Escobar, they have not spoken again since that 

conversation. 

With respect to their conversation about Canales, Escobar’s recollections 

are similar in most respects. According to Escobar, the conversation was brief, 

perhaps 30 seconds to a minute. Escobar was not certain about the timing of 

when the call occurred, but he said that during this call the special agent 

asked him how he was doing and then asked if Canales was there [in 

Oklahoma]. Escobar responded, “Yeah, I’m looking at her right now.” The 

special agent replied, “Oh, okay, that way we’ll pull surveillance off and not 

have to spend any more money on her.” Escobar said the special agent did not 

specifically indicate which law enforcement agency was doing surveillance. 

Escobar told the OIG he later learned that DPS had been to his house. 

Escobar said he does not recall the special agent asserting that he was calling 

on behalf of the FBI, but Escobar assumed that was the case. 

After speaking with Escobar about Canales, the special agent called the 

DPS sergeant and said that Escobar had informed him that Canales was also 

in Oklahoma. The DPS captain told the OIG that she learned either from the 

sergeant or the FBI special agent that Escobar said Canales was in Oklahoma. 

She believes she received this information from the special agent prior to 

1:00 p.m., because she told the OIG that it was at 1:00 p.m. that day that the 

legislators in Oklahoma held a press conference in which they stated their 

location and their intention to remain in Oklahoma. Shortly thereafter, the 

captain went onto the Internet where newspapers were posting photographs of 

the legislators who had been talking to the press. The captain found 

16 
photographs on the web, including pictures of Canales, further confirming the 

information from the FBI special agent.13

Escobar told the OIG that shortly after his conversation with the FBI 

special agent about Canales, he joked with Canales, “you’re becoming popular, 

even the FBI is looking for you.” A week after his return to Texas, Escobar 

received a call from the Associated Press. He is not sure how the media 

learned of the phone calls from the FBI special agent, but assumes that it was 

a result of his comment to Canales. 

d. The Special Agent Informs his Supervisor of the 

Telephone Calls 

The FBI Supervisory Senior Resident Agent (SSRA) in Corpus Christi told 

the OIG that he recalls that, at some point on May 13, when he walked past 

the FBI special agent’s desk, the special agent told him that he had called 

Escobar and that they [the legislators] were up in Oklahoma. The special agent 

told the OIG that he did not feel he had to keep his supervisor, the SSRA, 

informed about the calls, but he thought the SSRA would find it interesting 

because Escobar had worked in their office and the SSRA knew Escobar as 

well. The SSRA was out of the office the rest of that day. The next day the 

Special agent told the SSRA that he had spoken to Escobar again. According to 

the SSRA, the special agent explained that the DPS sergeant had called to see if 

the special agent could check to see if Canales also was in Oklahoma. 

According to both the special agent and the SSRA, the special agent had 

not been directed by anyone in the FBI to place the calls to Escobar. The SSRA 

did not express concern to the OIG that the special agent had made these 

phone calls. The SSRA cannot recall any other discussion of the calls until 

reporters contacted the special agent about the calls several weeks later. 

The SSRA said that, as the supervisor for the Corpus Christi and Victoria 

RAs, he often keeps a record of assistance provided to local law enforcement in 

a “control file.” He does this so that he can account for the man-hours put in 

by his agents that do not appear elsewhere in FBI records. He said that with 

respect to the special agent’s calls to Escobar, the SSRA did not keep such 

documentation, because the activity was so minimal and there was never any 

“official” request. The SSRA told the OIG that he did not view the phone calls 

as “official” FBI calls. 

 13 It appears the captain may be mistaken with respect to when she received this 

information from the special agent, because the special agent’s cell phone records suggest he

spoke with Escobar about Canales after 3:00 p.m. on May 13, 2003. 

17 
e. Notes and Records of the Special Agent’s Calls 

The OIG sought to obtain telephone records, notes, and other 

documentation relating to these calls. The telephone records provided by the 

FBI reflect only two relevant calls for May 13. The first relevant call is one from 

the special agent’s cell phone to Escobar’s cell phone at 3:10 p.m. on May 13 

lasting 1 minute and 12 seconds. The second is an incoming call at 4:21 p.m. 

to the special agent’s cell phone from an unknown number that lasted less 

than one minute. The phone records of the Corpus Christi RA do not reflect 

any relevant call because local calls are not retained in the FBI’s regular phone 

system. 

The telephone records provided by Escobar reflect a total of five calls 

from his cell phone to the FBI office in Corpus Christi on May 13. They do not 

reflect any phone calls to or from the special agent’s cell phone.14 The first call 

was placed by Escobar to the FBI’s offices at 9:48 am on May 13 and lasted 

approximately 2 minutes. Escobar said he believes he placed that call to 

return the special agent’s first message. He believes a support staff person 

paged the special agent within the office, but he did not come to the phone, so 

Escobar hung up. The second call was placed by Escobar from his cell phone 

to the FBI office in Corpus Christi at 9:54 a.m. and lasted approximately 1 

minute. It is the call in which, according to Escobar, the support staff member 

teased him for being a fugitive, as described above. The third phone call was 

placed from Escobar’s cell phone to the FBI office in Corpus Christi at 

11:08 a.m. and lasted approximately 4 minutes. According to Escobar, that is 

the conversation in which he told the special agent about his location and they 

briefly discussed personal matters. Escobar’s phone records reflect that he 

subsequently checked his voicemail at 11:45 a.m. Escobar said that it was at 

that point that he received a message from the special agent seeking another 

call back. Escobar could not recall the exact contents of the message. The 

phone records reflect that a fourth phone call was placed from Escobar’s cell 

phone to the FBI Corpus Christi RA at 12:05 p.m. The call lasted 

approximately 3 minutes. According to Escobar, he did not reach the special 

agent on that occasion but spoke to someone on the support staff. The phone 

records reflect a fifth and final call at 4:22 p.m. that lasted approximately 

2 minutes. That may have been the conversation in which Escobar told the 

special agent that Canales was with him. Neither the FBI agent nor Escobar 

took any notes in connection with these conversations. 

 14 This may at first seem unusual, given that the special agent’s cell phone records, as 

described above, show an outgoing call to Escobar’s cell phone at 3:10 p.m. However, the 

special agent stated that he left a voicemail message, and the Representative’s phone records 

apparently do not show incoming calls that are connected directly to voicemail. 

18 
The DPS captain and sergeant told the OIG they could recall taking notes 

in connection with their conversations with the FBI special agent. The 

sergeant stated that he had destroyed his notes in connection with the search 

for the legislators at the instruction of his superiors. However, he declined to 

discuss the destruction of notes further. The DPS captain told the OIG that 

she destroyed her field notes at the instruction of her commander. The captain 

acknowledged that the Command Center may have made a record of the 

information she passed on to them, but she has no specific knowledge of that. 

Marshall Caskey, the Chief of the Criminal Law Enforcement (CLE) 

Division of the Texas DPS, which includes SCS, told the OIG that there may 

have been some notation of the fact that the legislators discussed by the FBI 

special agent and the DPS officers had been located. He stated that if such a 

notation was made, it could have been among the notes that were destroyed 

pursuant to an e-mail instruction on May 14. 

Chief Caskey stated that Title 28 of the Code of Federal Regulations, 

Part 23, which regulates criminal intelligence systems operating policies, 

prohibits his organization from keeping intelligence data on persons who are 

not suspected of criminal activity. He stated that there was no criminal 

predicate in this case that would have permitted CLE to maintain the 

information gathered by DPS employees related to the search for the absent 

legislators. Because it was determined that the Texas legislators matter was 

not criminal, Caskey said that no field notes made in connection with that 

matter could be placed in any of the CLE intelligence files. He added that 

intelligence data cannot be mixed with investigative data. 

 

Chief Caskey told the OIG that Texas law provided authority for the DPS 

to go and arrest the missing legislators. He said it therefore was appropriate 

for the DPS to gather “skip-trace type” information on them – which included 

details about their children and families. However, this is not the kind of 

information, according to Caskey, which should remain in DPS intelligence files 

when there is no allegation of criminal wrongdoing. Caskey also stated that no 

formal reports were made in connection with this matter, so no reports were 

destroyed, only field notes. He explained that field notes are often destroyed in 

the normal course of business. He stated that Texas law does require that field 

notes be kept and that the DPS is “not required to keep every jot.” He noted 

that, in a normal case, he typically destroyed his field notes once his formal 

reports were finished. He said this was a matter of personal choice, and that 

field notes may be shredded. 

In addition, Chief Caskey noted that this situation, where notes 

containing intelligence data were appropriately created in a situation were 

there was no criminal predicate, was very unusual. He said there was “no 

manual on how to do this.” He told the OIG that in this instance, the issue of 

what to do with the intelligence data that had been gathered came up when a 

19 
legal counsel in the DPS General Counsel’s Office raised the issue with him. 

They discussed the propriety of “hanging onto the information” and the legal 

counsel said it was not pertinent. Based on this conversation, Caskey 

contacted the Commander of SCS and told him to make sure that the field 

notes were not put into criminal files. The Commander then contacted his 

secretary and had her send out an e-mail to carry out the Chief’s instruction. 

However, Caskey said the e-mail went beyond what the Chief had intended, 

because the e-mail included a directive to destroy all “correspondence” and 

“photos.” 

Chief Caskey indicated that the DPS website contains large volumes of 

documents produced in connection with the DPS’s conduct in this matter. He 

asserted that the DPS did not destroy all its records in connection with its 

search for the missing legislators. For example, he noted that the computer 

“footprints” for the records checks that were done are retrievable and were 

produced. He said no attempts were made to erase those records. 

f. Other Cooperation with Local Law Enforcement 

The FBI special agent told the OIG that he was aware that there are rules 

governing assistance by FBI agents to local law enforcement agencies. While 

he did not know off-hand the details of these FBI policies, he stated that the 

assistance he could provide depended on the level of FBI involvement in the 

case and the type of assistance requested. He said that he does not believe 

that the telephone calls he made were in violation of any FBI policy. He added 

that there have been times in the past when he has contacted friends or 

relatives of fugitives for assistance in finding fugitives. He also has provided 

assistance to local law enforcement in the past along the lines of a computer 

database check. As part of his task force work, he has assisted both DPS and 

the Nueces County District Attorney’s Office by seeking to execute UFAP 

warrants. While he realized that any information provided to him by Escobar 

would have to be passed on to other law enforcement agents if relevant to their 

investigation, he asserted that his purpose in calling Escobar was based on his 

past relationship with and concern for Escobar. 

The Corpus Christi FBI SSRA also told the OIG that the FBI regularly 

provides assistance to local law enforcement. For example, the Corpus Christi 

RA works with local law enforcement on violent crime fugitive cases, including 

instances where there is no federal warrant. Similarly, in certain 

circumstances the FBI may need “back-up” from local law enforcement because 

they do not have enough personnel to handle a situation. In that case, local 

law enforcement provides assistance. 

The DPS sergeant also described a number of occasions where the FBI 

has provided assistance to the Texas DPS in connection with work on a Texas 

state case. He recalled instances in which FBI special agents assisted in 

20 
searching for fugitives wanted by the state. He also believes that the DPS SCS 

crime analyst regularly receives help from the FBI with her work, and she 

provides assistance to the FBI when requested. The DPS sergeant stated that 

law enforcement agencies in the Corpus Christi area, including local and 

federal authorities, have a good working relationship. Other FBI agents and 

officials with whom the OIG spoke described similar cooperation and 

assistance. 

The FBI policies which govern an agent’s ability to provide assistance to 

local law enforcement in such a situation are discussed in the analysis section. 

C. U.S. Attorneys’ Offices 

The OIG also canvassed U.S. Attorneys’ Offices in Texas and the Western 

District of Oklahoma to determine if they had any involvement in the search for 

the missing legislators. The following sections describe the results of this 

review. 

1. U.S. Attorney’s Office for the Western District of Texas 

We found that the Office of the Texas Attorney General contacted the 

U.S. Attorney’s Office for the Western District of Texas in connection with this 

matter. Within a few hours of that contact, U. S. Attorney Johnny Sutton said 

he responded that his office did not have jurisdiction in the matter and would 

not get involved. 

Sutton told the OIG that he recalled being contacted on May 13, 2003, 

when he was on his way from Texas to an Attorney General’s Advisory 

Committee meeting in Washington, D.C. He received a page and called the 

number indicated, reaching Barry McBee, First Assistant to Texas Attorney 

General Greg Abbott.15 McBee asked whether there was any federal 

jurisdiction for Sutton’s office to assist the State of Texas in getting the absent 

Democratic legislators back. McBee said that a “Department of Justice” lawyer 

was aware of the situation and had done some research on this issue. McBee 

told Sutton he could talk to the lawyer (who, it later turned out, was the former 

Department of Justice lawyer now serving as Counsel to Majority Leader Tom 

DeLay, whose actions we describe in section III.A.1., above). McBee also 

wanted to know if the FBI could become involved. McBee said his office had 

contacted the FBI in Oklahoma and that the FBI would not do anything 

without Sutton’s involvement. Sutton responded that he did not think there 

was any federal interest in this issue, so McBee should keep his expectations 

low, but Sutton said he would check. 

 15 Sutton had had prior contact with McBee when Sutton was criminal justice policy

director for President Bush during the President’s campaign.

21 
Sutton said he called his First Assistant U.S. Attorney (John Murphy), 

his criminal Chief (Richard Durbin), and the Deputy United States Attorney 

(Robert Pitman) and asked them to look into the matter. In a memorandum 

dated May 13, 2003, Durbin wrote that he considered whether the United 

States Attorney “may or should authorize the filing of a federal criminal 

complaint charging unlawful flight to avoid prosecution in violation of 

18 U.S.C. § 1073 based on a violation by Democratic State Legislators of a rule 

of the Texas House of Representatives, that involves the legislators’ willfully 

absenting themselves from the State of Texas to deprive the Texas House of 

Representatives of a quorum.” Durbin concluded that the answer to that 

question was no. He wrote that the statute at issue, the “Fugitive Felon Act,” 

relates primarily to persons fleeing prosecution in a felony case. The absent 

legislators were not charged with a criminal offense, and there was no evidence 

that they fled to avoid prosecution for a felony, so the statute was not 

applicable to them. Alternate provisions of the statute were deemed equally 

inapplicable, because the legislators were not fleeing to avoid giving testimony 

in a pending criminal proceeding or to otherwise hinder a criminal 

investigation. Thus, the memorandum concluded that the Fugitive Felon Act, 

18 U.S.C. § 1073, did not apply to this situation. 

Sutton told the OIG that at approximately 5:00 p.m. that same day, after 

hearing back from his staff, he had a second conversation with McBee in which 

he confirmed that his office had no jurisdiction to assist the State of Texas in 

the matter. Sutton added that even if he did have jurisdiction, it was still a 

state matter. Sutton also called the Counsel to DeLay, and they had a brief 

conversation in which Sutton said this was not something he would get 

involved with. 

Also on that same day, Sutton recalls reaching out to the Deputy 

Attorney General's Office to give them a “heads up” about the call and the 

issues raised. He said he reached Associate Deputy Attorney General Stuart 

Levey, who agreed with his position that the Department should not get 

involved. E-mail records reflect that Levey also spoke with two members of 

Sutton’s staff on May 13 about whether anyone had asked them to intervene 

and what the response had been. 

 

Sutton told the OIG he also left a voicemail message for Principal 

Associate Deputy Attorney General Chris Wray, but he did not hear back from 

Wray. Wray told the OIG he recalls bumping into Sutton in the hallway at the 

Justice Department sometime later and discussing the matter with him briefly. 

He agreed with Sutton’s assessment that the Department should not get 

involved in this matter. 

The OIG also interviewed First Assistant Attorney General Barry McBee 

in connection with these events. Both Sutton’s and McBee’s recollections are 

22 
similar with respect to the substance of the calls, although their recollections of 

the timing of the calls differ slightly. McBee believes that he first called Sutton 

on May 12, and that they had a total of three brief calls. According to McBee, 

during the first call, McBee asked whether there was federal jurisdiction. 

During the second conversation, which took place later on May 12, Sutton said 

that after a quick review his office did not think there was jurisdiction, but he 

may have said he would “bounce it off people in D.C.” As McBee recalls it, a 

third conversation occurred the next day when McBee paged Sutton and 

Sutton called him back to say his office would not get involved. 

McBee’s phone records support his recollection about the timing of the 

calls. They show a page from McBee’s state cell phone to Sutton’s pager at 

6:42 a.m. on May 13, and an incoming call from an unknown number six 

minutes later. During that conversation, according to McBee, Sutton 

definitively stated that the federal government did not have jurisdiction in the 

matter. McBee told the OIG that he is not aware of any Justice Department 

employee providing any assistance with the search for the legislators. 

On May 13, Sutton’s office drafted a short statement for the press in 

which he said, “The U.S. Attorney’s Office is not aware of any circumstances 

involving the actions of Texas Legislators that fall within the jurisdiction of this 

office. This matter falls squarely within the purview of the state authorities 

and does not invite involvement by federal authorities.” 

A canvas of the employees in the U.S. Attorney’s Office for the Western 

District of Texas revealed only one other inquiry in connection with this matter. 

On May 13, Deputy U.S. Attorney Pitman received an urgent page in 

connection with this matter from Texas State Representative Jack Stick, who 

previously had been an Assistant United States Attorney in the San Antonio 

office in the district. 

According to Representative Stick, he paged Pitman, who is a personal 

friend of his, and Pitman called him back. They discussed a number of 

personal matters during their conversation, which lasted a few minutes. Stick 

said that approximately 20 to 30 seconds of their conversation was devoted to 

discussing the Texas legislators’ matter. According to Stick, he told Pitman 

that someone had asked him whether there was anything the “feds” could do. 

Stick had told that person that he thought there wasn’t. Stick posed the 

question to Pitman in their telephone call, and said Pitman responded, “I don’t 

think so.” Stick said Pitman also may have said that he thought the 

Department had already considered that question and had come up with the 

same answer. One of them mentioned that a UFAP would not apply, because 

“there is no ‘P’” (the “P” in UFAP stands for “prosecution”). The conversation 

continued into personal matters and ended shortly thereafter. Stick said he 

did not ask Pitman to take any action in connection with the Texas legislators, 

23 
and he is not aware of anyone having asked any Department employee to take 

action in connection with the Texas legislators.16

We found no other contacts with anyone in the U.S. Attorney’s Office for 

the Western District of Texas about this matter 

 2. U.S. Attorney’s Office for the Southern District of Texas 

Michael T. Shelby, the United States Attorney for the Southern District of 

Texas, reported to the OIG that no employee in his office was contacted or 

provided any information regarding the search for, or the return of, the absent 

Texas legislators. 

 

 3. U.S. Attorney’s Office for the Northern District of Texas 

First Assistant United States Attorney James T. Jacks from the Northern 

District of Texas reported to the OIG that no employee in that office had any 

contact or was requested in any way to participate in the activities involving the 

Texas legislators. He said no one sought any legal opinions or other 

prosecutive function from his office. 

 4. U.S. Attorney’s Office for the Eastern District of Texas 

Deputy Chief Assistant U.S. Attorney for Management and 

Administration Kerry Klintworth reported to the OIG that no employee in the 

U.S. Attorney’s Office for the Eastern District of Texas was contacted or 

provided any information regarding the search for, or the return of, the absent 

Texas legislators. 

5. U.S. Attorney’s Office for the Western District of 

 Oklahoma 

First Assistant U.S. Attorney Bob Troester reported to the OIG that, after 

an inquiry of the entire office, he discovered no contact by state, local, or 

federal officials regarding the search for or return of the absent Texas 

legislators. Troester said that because he is the District’s press officer he 

received some media inquiries in connection with those events, but he made no 

comment other than to note that Ardmore, Oklahoma, is located in the Eastern 

District of Oklahoma. 

 16 Pitman is on extended leave, and we did not interview him. 

24 
6. U.S. Attorney’s Office for the Eastern District of 

 Oklahoma 

Sheldon J. Sperling, U.S. Attorney for the Eastern District of Oklahoma 

(which includes Ardmore, Oklahoma), told the OIG that he was contacted by a 

Senior Supervisory Resident Agent in the FBI’s Oklahoma City Division about 

the absent legislators. As discussed in Section III.B.4., an FBI agent in 

Ardmore was contacted by the Texas Deputy Attorney General and the agent 

contacted his supervisor. According to U.S. Attorney Sperling, the FBI agent’s 

supervisor contacted Sperling to confirm that the FBI should not become 

involved in this matter. Sperling told the OIG that he reviewed a copy of the 

letter from the Texas authorities that had been faxed to the FBI special agent in 

Ardmore. Sperling told the OIG that he “cautioned” the FBI agent against any 

FBI action concerning this matter. He told the OIG that he provided similar 

guidance to the U.S. Marshal for the Eastern District of Oklahoma. 

D. United States Marshals Service 

 1. United States Marshals Service for the Western District of 

 Texas

The USMS office for the Western District of Texas was contacted by the 

Texas Rangers for information regarding how the Rangers had handled a 

similar situation in the past. However, the Rangers did not request assistance 

in locating or returning the absent Texas legislators. 

The OIG interviewed United States Marshal Jack Dean. He told the OIG 

that on the day the legislators went missing, a Senior Captain with the Texas 

Rangers (a division of the DPS), contacted him to find out how the Texas 

Rangers had handled the situation when a group of state senators were absent 

under similar circumstances in 1979. Dean explained to the OIG that he had 

been Chief of the Texas Rangers before retiring and coming to the Marshals 

Service. In 1981, when he was a member of the Texas Rangers, Dean had 

hired the Senior Captain and Dean said they are personal friends. 

Dean said that when the Senior Captain contacted him about the absent 

Texas legislators, he wanted historical information regarding how the Rangers 

handled the senate situation in 1979, because those events occurred before the 

Senior Captain worked at DPS. Dean told the OIG that he was willing to 

provide the historical information, but the call ended abruptly when the Senior 

Captain said, “I’ve got to go. I think they found them.” Dean said the 

conversation lasted approximately two minutes. He said the Senior Captain 

did not ask Dean for actual assistance in locating the missing legislators. 

The OIG contacted the Senior Captain about this matter. He said he has 

a vague recollection of having a very brief conversation about this matter with 

25 
Dean. He noted that he and Dean are close personal friends and talk 

frequently about a number of topics. His recollection was that he said 

something to the effect of, “Hey, what did the Rangers do back then? What was 

their participation?” and Dean may have responded, “They all [the senators] 

came back. No one got arrested.” The Senior Captain stated that he did not 

request Dean’s assistance, nor did Dean offer any assistance in this matter. 

Dean told the OIG that, other than this one phone call with the Senior 

Captain, he was not aware of any contacts with, or requests made to, the 

USMS in connection with this matter by the DPS or by other Texas officials. 

He said that to the best of his knowledge, neither he nor any member of the 

USMS’s Western District of Texas had received any request to assist in any way 

with the matter. 

 2. U.S. Marshals Service for the Southern District of Texas 

Ruben Monzon, the U.S. Marshal for the Southern District of Texas, 

reported to the OIG that no employee in his district was contacted for 

information nor gave assistance to any federal, state, or local official in 

connection with the search for the absent Texas legislators. 

 3. U.S. Marshals Service for the Northern District of Texas 

Anthony Odom, Chief Deputy U.S. Marshal for the Northern District of 

Texas, responded to the OIG that an unknown male caller contacted its office 

and asked, “what would be necessary for U.S. Marshals to be involved in the 

arrest of the missing Texas legislators.” A representative of the USMS office 

replied that the office would have to receive a request for assistance from the 

responsible agency, state or local, that held warrants for the missing 

legislators. And, if such request was made, and it was determined the missing 

legislators were in another district, the request would be forwarded to the other 

district. According to the USMS representative, the caveat also was made that 

individual USMS offices could choose, even if a request was made, not to 

assist. 

 4. U.S. Marshals Service for the Eastern District of Texas 

John L. Moore, U.S. Marshal for the Eastern District of Texas, reported 

to the OIG that he polled his staff and no one in his district participated in any 

activity or was contacted for any assistance in this matter. 

26 
 5. U.S. Marshals Service for the Western District of 

 Oklahoma 

Michael W. Roach, the U.S. Marshal for the Western District of 

Oklahoma, reported to the OIG that his office had no involvement in returning 

the legislators to Texas. 

 6. U.S. Marshals Service for the Eastern District of 

 Oklahoma 

John W. Loyd, the U.S. Marshal for the Eastern District of Oklahoma, 

reported to the OIG that his office did not receive any requests to assist with 

the search for or return of the absent legislators. He said that neither he nor 

his office had any involvement in this matter. 

IV. OIG ANALYSIS 

As described above, we found that DOJ employees received a total of nine 

requests for information or assistance in connection with the absent Texas 

legislators. Eight of these requests resulted in no action being taken by the 

DOJ to find or seek the return of the legislators. Those eight inquiries, and the 

responses given by the DOJ employees, are summarized as follows: 

• A member of Majority Leader Tom DeLay’s staff called a senior DOJ 

official to inquire whether the Department had the legal authority 

to assist the Texas authorities in enforcing the warrant for the 

absent legislators. The Office of Legislative Affairs, after brief 

consultation with other Department divisions, declined to provide 

assistance. 

• An unknown Texas “Republican party” member contacted a special 

agent in the Dallas Field Division of the FBI and asked if the FBI 

could be “involved” if the Democrats crossed state lines. The agent 

responded that the FBI would not be involved because this did not 

appear to be a criminal matter. 

• A member of the Texas Attorney General’s Office contacted the 

Ardmore, Oklahoma, Resident Agency of the FBI to find out if there 

was anything the FBI could do in the matter. After briefly checking 

with his superiors, an FBI agent responded that there was nothing 

the FBI could do. 

• A Texas Ranger contacted two FBI special agents in the 

Brownsville, Texas, Resident Agency of the FBI and asked what the 

procedure was for establishing a “trap and trace.” Both agents 

27 
informed him that this investigative technique required a court 

order. 

• A Texas State representative who had worked as an Assistant U.S. 

Attorney contacted a Deputy U.S. Attorney in the San Antonio 

office. They had a brief conversation in which the representative 

asked if the federal government could do anything with respect to 

the absent legislators. The Deputy U.S. Attorney said that he did 

not think so. 

• A member of the Texas Attorney General’s Office contacted the U.S. 

Attorney for the Southern District of Texas. The U.S. Attorney had 

his staff research the issue and responded that his office had no 

jurisdiction, but even if there was jurisdiction, it was a state matter 

and his office would not assist. 

• A member of the Texas Rangers asked the U.S. Marshal for the 

Western District of Texas how a similar situation had been handled 

when legislators were absent from the Texas senate in 1979. The 

Marshal provided a brief response, based on his recollection from 

his work for the Rangers during that time. 

• An unknown male contacted the U.S. Marshals service for the 

Northern District of Texas and asked what would be necessary for 

the Marshals to become involved in the arrest of the legislators. A 

representative of the office provided a brief description of the 

relevant procedures. 

In these eight instances, the relevant DOJ employees promptly and 

appropriately declined to become involved in this state matter. In some of 

these instances, the employees quite reasonably consulted with their 

supervisors or did some checking before responding to the inquiry. In other 

instances, the employees provided an immediate response. 

In only one instance did we find that a DOJ employee took action in 

connection with the search for the Texas legislators. We determined that a 

special agent in the Corpus Christi FBI RA contacted Texas State 

Representative Escobar two times when he was in Ardmore, Oklahoma. On the 

first occasion, in response to a request from the Texas DPS, the FBI special 

agent determined that Escobar was in Oklahoma and reported that information 

to the DPS. On the second occasion, in response to another request from the 

DPS, the FBI special agent called Escobar to determine if another 

Representative, Gabi Canales, was also in Oklahoma. The special agent 

reported this fact to the DPS as well. 

28 
In evaluating the appropriateness of the special agent’s actions, we 

considered several factors. First, a threshold issue is whether the special agent 

made these calls in his “official capacity.” We conclude that he did. Even 

though the special agent and Escobar had a personal friendship, their 

relationship was primarily that of former colleagues. Moreover, the special 

agent called Escobar while on duty, from his office, at the request of the Texas 

DPS. Escobar knew that the special agent was an FBI agent. While they 

discussed personal matters on the phone, according to the special agent the 

purpose of the calls was to obtain information for the DPS on the whereabouts 

of Escobar and Canales. Thus, though some of the statements the special 

agent made during his conversations that day with Escobar were motivated by 

personal concerns, the calls themselves must be viewed as actions taken by the 

special agent in his official capacity. 

The next question is whether the special agent violated any statute or 

FBI policies by placing the calls. After careful review and consultation with the 

FBI, we did not find that the agent violated any FBI policy. 

FBI policy prohibits employees from divulging information obtained in 

their official capacities. Manual of Investigative Operations and Guidelines 

(MIOG), Part 1, Section 1-19(2). The MIOG, however, specifically states that 

the “FBI is authorized to acquire, locate, or pass on various records to local 

agencies, effect cooperation between local law enforcement or verify the location 

of a person whose interview is desired for a local or state law enforcement 

agency.” MIOG, Part 1, Section 62-3.2.17 The policy states that, “The FBI, on 

behalf of a local or state law enforcement agency, may verify the location of an 

individual. No interviews with subjects, suspects, or witnesses should be 

conducted by Bureau personnel. No extensive efforts are to be expended to 

locate individuals for interviews. FBI personnel are to merely verify their 

whereabouts, such as a residence address or employment, etc.” MIOG, Part 1, 

Section 62-3.3(3). The actions of the special agent appear to fall squarely 

within above policy. He was asked by a local law enforcement agency to “verify 

the location of any individual.” He did not interview the individual. He did not 

expend “extensive” efforts. Indeed, the phone calls he made were not long 

distance, because Representative Escobar had a local cell phone number. The 

special agent simply verified the whereabouts of the representatives and passed 

the information to local law enforcement. 

The FBI’s Manual of Administrative Operations and Procedures (MAOP), 

also provides that, “Dissemination [of information] to any state or local 

 17 This provision is based on Title 28 of the United State Code, Section 534, which 

relates to the Attorney General’s authority to acquire and preserve identification, criminal, and 

other records, and to exchange those records with federal, state, city, penal and other 

institutions.

29 
government agency should be restricted as a general practice to those agencies 

directly engaged in the criminal justice process, e.g., police, prosecution, penal, 

probation, and parole and the judiciary, and only where access is directly 

related to a law enforcement function of a recipient agency, e.g., in connection 

with a lawful criminal or intelligence investigation . . .” MAOP, Part 1, Section 

9-3.1. According to the DPS officers interviewed by the OIG, they were 

collecting intelligence information and were conducting surveillance in an effort 

to execute a warrant, albeit a non-criminal warrant. Chief Caskey described 

the field notes taken in connection with this matter as “intelligence data.” 

Thus, because the request regarding the whereabouts of Escobar and Canales 

was made to the FBI special agent by members of a law enforcement agency 

who were conducting an intelligence investigation, the MAOP policy permitted 

the FBI agent to disseminate the information to them. 

According to the MAOP, the special agent was not required to open a file 

in connection with his calls to Escobar. See MAOP, Part 2, Section 2-5.1. FBI 

case files must be opened when substantial work is done on a case; for 

example, when “one or more interviews are to be conducted” or “when an 

informant is being operated.” MAOP, Part 2, 2-5.1. An FBI form exists that 

can be used for noting an inquiry made with respect to a person or subject in a 

particular case (the FD 159). However, that form is generally used when there 

is an existing case file in which to place the form. 

The FBI special agent’s supervisor told the OIG that, in some instances, 

he keeps a record of the expenditure of his agents’ time on local law 

enforcement matters so that he can justify how their time is spent. The 

supervisor told the OIG that time spent on this matter was so minimal, 

however, that no such record was kept. The absence of a record of these calls 

in FBI files is not a violation of FBI policy. 

Further, the special agent’s calls to Escobar did not constitute a misuse 

of government property, as defined in MAOP, Part 1, Section 1-3. Even if the 

special agent’s calls to Escobar were, in part, motivated by their personal 

friendship, given that the special agent intended to (and did) pass on 

information he obtained during the calls to representatives to the Texas DPS, 

the calls cannot be viewed as “personal” calls. 

FBI personnel are prohibited from engaging in political activities when 

they are in contact with the public while they are on duty. MAOP, Part 1, 

Section 1-18.3.2. According to the policy, the reason for this prohibition is 

that, “[t]he FBI, like all law enforcement agencies, must be perceived by the 

public as nonpartisan and apolitical.” Although the FBI policy does not define 

the term “political activity,” the entire section of the MAOP on “Political 

Activities,” when read as a whole, suggests that the term applies to actions 

such as voting, expressing opinions on political subjects, and displaying 

30 
political pictures, stickers or badges. We do not believe that the special agent’s 

phone calls to Escobar constituted impermissible on-duty “political activity.” 

V. OIG CONCLUSIONS AND RECOMMENDATION 

With one exception, the Department’s employees declined to become 

involved in the search for, and the return of, the absent Texas legislators. In 

the case of the FBI agent in Corpus Christi, given the FBI policies as they 

currently exist, the agent was in a situation where he had to decide whether to 

exercise his discretion to either decline the request or, alternatively, to assist 

the Texas DPS. The agent had a close working relationship with the requestors 

and was friends with the person whom they wanted the agent to contact. He 

mistakenly believed there was a criminal element to this matter, because law 

enforcement officers making the request were using terms typically used in 

criminal cases, such as “warrant.” All these factors played into the agent’s 

decision to assist Texas DPS by making the calls. 

We believe the agent should have declined the request as a better 

exercise of his discretion. He also might have consulted with colleagues or 

supervisors to get their opinion about his becoming involved, given that he 

already was well aware that the matter stemmed from a political dispute and 

was of substantial public importance. In addition, had he more carefully 

evaluated the situation, he may have recognized that there was no federal 

interest at stake and no criminal element to the request. 

We also note that the Texas DPS was able to determine through 

television and the Internet that both Escobar and Canales were in Oklahoma. 

In addition, this is not a situation where public health or safety was at issue. 

This further supports our conclusion that it would have been a better practice 

for the FBI special agent not to involve himself, and therefore the FBI, in this 

matter. However, we do not believe he committed misconduct or violated any 

FBI policy. 

Finally, the expansion of the Joint Terrorism Task Forces to all 56 FBI 

Divisions has brought FBI agents into even closer contact with their local law 

enforcement counterparts during a time of increasing demands on law 

enforcement resources nationwide. FBI agents will continue to require 

assistance from local law enforcement on cases of primarily federal interest, 

and FBI agents, in turn, may be asked for assistance by local law enforcement 

colleagues with their cases. Given such requests, we believe the FBI should 

examine the written guidance it provides to its agents with regard to how to 

evaluate and respond to requests for assistance from local law enforcement. In 

doing so, the FBI should consider clarifying, consolidating, and reinforcing 

various policy directives that relate to this topic. The guidelines should seek to 

31 
encourage cooperation, when appropriate, and also seek to better assist FBI 

agents to determine when they should decline to provide assistance in response 

to such requests.

32 
Errata

Since the initial public release of the report on August 12, 2003, the OIG made 

three changes to the report: 

Page 10, subpart 5: Instead of “FBI San Antonio Division/Austin Resident 

Agency” the phrase has been changed to “FBI San Antonio Division/ 

Brownsville Resident Agency” 

Page 27, final bullet: instead of “two FBI special agents in the Austin, Texas, 

Resident Agency” the phrase has been changed to “two FBI special agents in 

the Brownsville, Texas, Resident Agency” 

Page 28, second bullet: instead of “A member of the Texas Attorney General’s 

Office, and a member of Majority Leader Tom DeLay’s staff, contacted the U.S. 

Attorney for the Southern District of Texas” the sentence has been changed to 

“A member of the Texas Attorney General’s Office contacted the U.S. Attorney 

for the Southern District of Texas.” 

33 
List of Exhibits 

Exhibit A Warrant issued by Texas House of Representatives for 

 Representative Juan Escobar 

Exhibit B Letter sent to Congress signed by AAG Moschella 

34 
Exhibit A 

HOUSE OF REPRESENTATIVES 

IN THE NAME AND BY THE AUTHORITY OF THE 

HOUSE OF REPRESENTATIVES, STATE OF TEXAS 

TO: The Sergeant-At-Arms of the Texas House of Representa1tives and to any Peace Officer of the State 

of Texas: 

GREETINGS: 

Pursuant to Art. 3, Sec. 10, Texas Constitution and in accordance with the Rule 2, Section 4(6) and Rule 5, 

Section 8, Rules of the Texas House of Representatives, by order of the majority of the members of the 

Texas House of Representatives present: 

You are hereby directed to send for and arrest The Honorable Juan Escobar, Member of the Texas House of

Representatives, wherever he may be found, and to return that person to the Hall of the Texas House of 

Representatives and there secure and retain that person. 

Herein fail not. So ordered this 12th day of May, 2003. 

 
 Exhibit B 

 

 

 

U.S. Department of Justice 

Office of Legislative Affairs 

Office of the Assistant Attorney General Washington, D.C. 20530 

 

MAY I 6 2003 

The Honorable John Conyers, Jr. 

U.S. House of Representatives 

Washington, DC 20515 

Dear Congressman Conyers: 

This responds to your letter, dated May 13, 2003, to the Attorney General, which expressed 

concern about press reports regarding the deployment of any federal law enforcement resources in 

connection with Texas State legislators who are working in Ardmore, Oklahoma. We understand that 

your letter also was addressed to the Department of Homeland Security, which will respond separately

about matters within its jurisdiction. 

We are not aware of any information pertinent to the Texas State legislators that would warrant 

action by federal law enforcement authorities, including those of the FBI. Accordingly, we have not 

deployed and have no plans to deploy our law enforcement resources in connection with this matter. 

We hope that this information is helpful and that you will contact this office if you would like

additional assistance regarding this or any other matter. We will send identical letters to the other 

Members who joined in your letter to us. 

 Sincerely,

William E. Moschella 

Assistant Attorney General