HOUSTON (CN) — A high school referee claims Texas prosecutors maliciously prosecuted him for having a sexual relationship with an 18-year-old male student, knowing his independent-contractor status gave them little chance of convicting him.
Brian Ortiz filed the federal complaint Monday against Montgomery County, its District Attorney Brett Ligon and two assistant district attorneys. Montgomery County’s seat Conroe is an hour north of Houston.
Ortiz was arrested in February 2013 and charged with improper relationship between an educator and student, a second-degree felony punishable by up to 20 years in prison and a $10,000 fine.
Ortiz says in the lawsuit he met Trey Trott, then an 18-year-old Conroe Independent School District student, on the hook-up app Grindr and started dating Trott in January 2013, with the approval of Trott’s parents.
Ortiz was 25 at the time and a full-time employee of Bank of America. He moonlighted as a high school referee at sporting events in Greater Houston. He says Conroe ISD hired him through various Houston referee associations and considered him an independent contractor.
“It is important to note, Mr. Ortiz last officiated a sporting event for Conroe ISD in January 2013,” the complaint states.
Ortiz says that after he started dating Trott, he found out the teen had a fling with Conroe ISD police Sgt. Chris Sutton, which struck Ortiz as illegal, because Sutton oversaw Kid Chat, a crime-stoppers group that met once a week at Conroe ISD police headquarters to discuss how students could get paid for tips about crime on campus. Trott had attended some Kid Chat meetings led by Sutton.
Ortiz says he notified school officials and law enforcement about Sutton and Trott, leading to Sutton’s resignation from the police department and Sutton’s arrest.
But Ortiz says his whistle-blowing had an unintended consequence: “Unbeknownst to Mr. Ortiz, his protected speech resulted in him being a target. On February 25, 2013, he was arrested and charged with an improper relationship between student and educator.”
Though prosecutors persuaded a jury to convict Sutton of five felony counts of improper relationship between educator and student in September 2014, for which he was sentenced to 10 years probation, Sutton appealed to Ninth Texas Court of Appeals in Beaumont, which acquitted him in a 2-1 ruling.
The majority agreed that Sutton was not an employee of the high school Trott attended.
The Montgomery County District Attorney’s Office appealed to the Texas Court of Criminal Appeals, which affirmed Sutton’s acquittal in September.
In addition to teachers, the Texas Education Code lets prosecutors charge certain employees — nurses, school psychologists, professional counselors, family counselors, social workers, and speech therapists, among others — for having sex with students, even if they do not work on the same campus as the student.
Prosecutors argued that though police officer is not on the list, Sutton's involvement with school programs made him an employee. But the criminal appeals court stuck to a strict reading of the statute in upholding Sutton’s acquittal.
After that ruling, assistant district attorney Tiana Sanford told Courthouse News her office decided to drop Ortiz’s charges.
Sanford is a defendant in Ortiz’s lawsuit. She did not immediately respond to a request for comment Wednesday.
Ortiz says it was obvious the prosecutors had no case against him.
“Despite, in February 2013, the [school] district admittedly stating Mr. Ortiz was classified as an independent contractor … defendants continued with the retaliatory and malicious prosecution of Mr. Ortiz,” the complaint states.
Ortiz seeks punitive damages for malicious prosecution and retaliation in violation of the First, Fourth and 14th Amendments.
He is represented by Chukwudi Egbuono in Houston.
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