Marcus Peña’s tearful plea for an early release from prison didn’t exactly fall on deaf ears, but it was not granted.
Assistant Attorney General Julie Stone scoffed at Peña’s complaints that his jail cell was warm and the food wasn’t very good. The dorm temperature is 125 degrees, he said, and the experience has been “miserable.”
“He stole $275,000, no way around it,” Stone said. “This is not a forum for how difficult his life is in jail. This is whether or not he deserves to be released from prison and whether he’s going to be able to make restitution.”
Ultimately Judge Dwight Peschel agreed that the convicted felon – Austin County’s former tax assessor-collector – should not be granted probation.
“This is more than money,” Peschel said in handing down his verdict. “This is a violation of public trust. Your request for shock probation is denied. You will have the opportunity to make restitution while you’re on parole. At this time in an effort to restore some faith in government, I can’t let it go because of your violation of trust as an elected official.”
With a nod to the bailiff, Peschel advised, “Take him back [to prison].”
Peña is, however, eligible for parole in February 2019. He is currently serving a 10-year sentence at the Garza East Unit in Beeville for stealing taxpayer money.
“I’m pleading for mercy,” Peña said in Monday’s hearing. “I want to pay back my restitution full and whole to make sure I do the right thing … It’s not fair [to my family] because they’re having to pay the price.”
Peña, 40, served as tax assessor-collector in Austin County for four years and lost a bid for re-election in 2016 to Kim Rinn, who currently holds the seat. Rinn discovered unusual office supply orders and bank statements that didn’t add up, according to witnesses who testified at Peña’s trial in March.
Stone, who prosecuted Peña’s case, said Peña wrote a total of about $275,000 in checks from July 2013 to December 2016. Prosecutors alleged that he altered records to try and cover writing 451 checks to himself but could not alter the bank statements.
During the March trial, Austin County Judge Tim Lapham testified that the county was planning to build a new EMS building in Sealy but because they were low on funds as a result of Peña’s theft, they instead were forced to raise the tax on homeowners by 2.3 percent. Peña was renting his home at the time.
During the time period that the former elected official was writing checks to himself, Peña and his wife spent approximately $341,000 but only had earned approximately $143,000. His spending habits included a $38,000 car, approximately $17,000 in phone bills and approximately $6,000 spent just on iTunes, according to court documents.
After his arrest, Peña told investigators he took the money to cover expensive medical bills stemming from his daughter’s birth but a forensic accountant found he spent approximately $9,000 on medical bills in that span, 3 percent of the total he stole.
Peña said Monday that his wife is employed as a teacher with Sealy ISD and he believes he could live off her income but wants to work and is willing to take on multiple jobs in order to repay his debt.
“I plan to start my own business,” he said, adding that he took a class in jail to gain certification in Occupational Safety and Hazards Administration and assisted a chaplain in counseling other inmates on how to be productive citizens. “I will make the right choices because I do not want to go back [to jail].”
He worked in prison as a maintenance clerk, organizing work orders for repairs. Peña said he felt remorse for the pain he inflicted on his wife, daughter and other family members. If released, he said he would be able to return home to his wife and haa a job offer from a relative to install and sell carpet. He also wants to start his own bookkeeping and income tax return business with his wife.
“You don’t really have a job when you get out; you have the offer of working with a family member,” Stone said. “You don’t have any sort of guarantee of what your income will be; you don’t know how many hours you’ll be working. Can I ask you, and I don’t mean to be snarky here, how you expect to have a job bookkeeping and handling other people’s money when you are a convicted felon for theft and misapplication of fiduciary property to the tune of $275,000?”
Peña said he would not be signing checks and had not researched whether the IRS would grant him certification to conduct such a business.
The courtroom was packed on one side with Peña’s family members and on the other side with county employees including County Judge Lapham, Tax Assessor-Collector Rinn, District Attorney Travis Koehn and Commissioner Randy Reichardt.
Former Sealy Mayor Mark Stolarski testified that he didn’t think Peña would pay restitution.
“I don’t see him accepting responsibility for his actions,” Stolarski said. “I’ve been around; I’ve seen a lot of people. I’m not ignorant to the ways of the world. I’ve run across people like him before.”
Stone pointed out that there is no criminal penalty if a person is released on probation and subsequently is unable to pay the required restitution.
Peña said during his March trial that he knew he had done wrong and hurt a lot of people.
“I would like to be given a second chance,” he said at the time. “The only thing I can do is pay it back and give them back the money they deserve. I know there’s no way for people to forgive me but I’m just asking for a second chance.”
The problem is, it wasn’t really a second chance. Testimony was introduced by Stone that Peña stole $1,600 from Sears while working there in 2009 and never paid back his debt. Following Monday’s hearing, Peña was returned to prison to serve the remainder of his sentence.