Former Austin County Tax Assessor-Collector Marcus Peña was sentenced last week to 10 years in jail and ordered to pay $275,000 in restitution as punishment for stealing from the county and misusing taxpayer dollars.
A sentencing hearing was held Thursday at the Austin County Courthouse to determine the punishment for a count of first-degree felony theft by a public servant and another of misapplication of fiduciary finances. Peña pleaded guilty to both charges and faced up to 99 years in prison.
Visiting Judge Dwight Peschel presided over the hearing that lasted six hours while state prosecutors called several witnesses involved with the discovery of Peña’s theft, his arrest and his criminal history. The defense called several members of Peña’s family to ask for leniency.
According to the first witness, Tax Assessor-Collect Kim Rinn, who took over for Peña in January 2017, the office received an abnormally large order of office supplies with an estimated value of $10,000 during her first week in office. The order included 24 boxes of pens containing 100 pens per box. Rinn said there also was a large amount of toner in the order.
Rinn said the state provides toner for their offices so there was no reason for Peña to have put in the order for such a large amount. After doing inventory out of concern for such an unusual order, Rinn discovered the office had more than 200 boxes of toner priced at $279 per box.
After inquiring with the county auditor and treasurer about how to pay for the order, the treasurer said he would get the bank statements from December 2016 to sort it out. Rinn said she would’ve eventually seen the statements but because of the abnormality surrounding the office supplies, that process was accelerated to her during her first week in office.
When Rinn examined the December bank statements, she saw that Peña was writing checks out to himself. She said on top of the charges he had pleaded guilty to, the office supplies he had ordered showed a massive misappropriation of funds.
Assistant Attorney General Julie Stone, who prosecuted Peña’s case, said Peña wrote a total of approximately $275,000 in checks from July 2013 to December 2016 when he left office after losing an election to Rinn. Peña altered records to try and cover writing checks out to himself but could not alter the bank statements. In total, Peña wrote 451 checks to himself.
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.
From July of 2013 to December 2016, 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 several years prior but a forensic accountant found he spent approximately $9,000 on medical bills in that span, 3 percent of the total he stole.
The prosecution also brought up Peña’s arrest in 2009 after he stole approximately $975 from a Sears store where he was working. Peña reached a plea deal in which he would serve no jail time and had a year to pay back the money he stole and court costs which totaled approximately $1,600. Stone pointed to his inability to meet that requirement and request for an extension to pay back the $1,600 as a sign if he was given parole in this case, he would again struggle to pay restitution for the $275,000 he stole from the county.
When Peña took the stand, he said he understood that the citizens of Austin County are angry and asked for empathy rather than forgiveness.
“I would like to be given a second chance because I know I did wrong and hurt a lot of people in this county that really cared about me,” Peña said. “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.”
Peña said he had been working two jobs: one full-time and one part-time. The check for the full-time job went to an account controlled by his wife and the entirety would go back to the county. He said he would be able to pay the county back $3,000 a month.
Peña’s wife said on the stand that Peña and his daughter are very close and to send him to jail would harm her and he is better off on probation so he can pay the county back. She said that she had no idea of Peña’s criminal actions while they were ongoing.
The state asked for nine years in prison for Peña while the defense argued for probation with restitution for the $275,000. Peschel sentenced Peña to “10 years confinement into the institutional division of the Department of Criminal Justice on each count."
The sentences will run concurrently and once on parole, Peña will have to pay the $275,000 in restitution to the county. He will have 30 days from the sentencing hearing to appeal.