Controversy has continued to erupt at the Ector County Utility District (ECUD) with accusations from two board members that the Directors up for the November election are on the wrong ballot at the wrong time, that ECUD is disenfranchising voters in the taxation annexation election, and now, the board President Tommy Ervin, who has been serving on the Board of Directors for years is a convicted felon and does not legally hold office.
Ervin began serving on the board by appointment in 2007. He ran for election in an unopposed race in 2016 and 2020. He has been elected President of the Board starting in 2016. However, it has been discovered that Ervin has four felony convictions from the 1970s for dealing methamphetamine and cocaine. Without a pardon, a felon is prohibited from holding public office in the state of Texas.
Board members Will Kappauf, and Troy Walker have demanded for several weeks that Ervin produce a pardon that would qualify him to hold public office. To date, Ervin has not produced a pardon.
Instead, Ervin has given an evolving story, starting first with his assurance that he does have a pardon, to the latest story in which he was told someone obtained a pardon for him.
Several public records requests have been submitted regarding Ervin’s record of clemency.
The first to the Texas Board of Pardons and Parole resulted in the response that “After a thorough search of our available records, we have found no reference to Thomas “Tommy” Glenn Ervin applying for or receiving any type of pardon/clemency.”
The response also recommended that a check with the Texas Secretary of State Statutory Records Division (SOS), which is the official record holder in all clemency matters, would be advisable.
On Friday, November 4, the SOS responded to a request for public records regarding any record of a pardon or clemency for Ervin, writing that “A diligent search of the records of this Office found no documents responsive to your request.”
The lack of any record of executive clemency for Ervin with either the Board of Pardons and Parole, as well as with the Texas Secretary of State, raises a host of new concerns regarding the legality of Ervin’s status in public office.
An opinion by then Texas Attorney General Greg Abbott (AG), a Texas law provides that the conviction of a felony offense results in the immediate removal of that person from office.
“Accordingly, an officer’s removal due to a final felony criminal judgment of conviction is automatic and effective as a matter of law, thus creating a vacancy for the office without the need of further official action.”
The implication of this, according to Kappauf and Walker, is that Ervin’s seat is presently vacant and that any official action by Ervin that is done while he knows he doesn’t have a pardon, might constitute a violation of the impersonation of a public servant law, which is a felony.
Chapter 37 of the Penal Code, provides that it is an offense if a person “knowingly purports to exercise, without legal authority, any function of a public servant or of a public office.”
A public records request for Ervin’s past candidate application revealed that in 2016 and 2020, Ervin filed for his office using what appear to be a type of homemade candidate application that do not include certain elements that the Texas Election Code says must be contained on the application.
Chapter 141.031 of the Election Code provides that a candidate’s application for a place on the ballot required by the code must be signed and sworn and include an indication that the person has not been finally convicted of a felony, or if so convicted, has been pardoned.
Notably, Ervin’s applications are neither sworn nor do they include the language regarding a felony record.
In contrast, all three candidates presently on the November ballot used the uniform candidate application provided by the Texas Secretary of State, which includes the mandatory language.
“So many details place a dark cloud over this issue,” Kappauf told Odessa Headlines, adding that “An investigation needs to be made into whether Ervin intentionally circumvented the law that requires him to disclose his felonies as early as 2016, which would unquestionably tell us if he knew he was illegally holding that office back then. Regardless, he knows enough now that he shouldn’t be acting in official capacity.”
Despite acknowledging that his future on the board is in question, Ervin is taking measures to push through some major agendas at ECUD.
According to Kappauf, Ervin told him that he would be issuing a notice for a public meeting to hire a new manager for the district, and that the meeting would be set for November 27.
Instead, Ervin published public notice for a Thursday meeting on November 3, moving the hiring process up.
Kappauf confronted Ervin at the meeting to interview candidates for the newly proposed general manager position, saying that if Ervin isn’t qualified to hold office, he might be breaking the law.
Further, Ervin has placed an agenda item for the Board Meeting on Wednesday, November 9 to hire a candidate.
Past attempts to obtain comment regarding the felony convictions have not been successful.