Bush won't have to testify in whistle-blower case

A Democratic judge rules Texas governor will not have to give a deposition in the so-called Formaldegate case.

By Robert Bryce
Published August 31, 1999 5:00PM (UTC)
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Gov. George W. Bush scored a major victory in a Texas courtroom Monday, when a judge ruled the presidential front-runner will not have to testify in the so-called Formaldegate trial. Bush's testimony was sought by attorneys for Eliza May, the former executive director of the Texas Funeral Service Commission, in a whistle-blower lawsuit against the state of Texas.

After an all-day hearing, Travis County District Court Judge John Dietz ruled that May's attorneys, who filed suit against the state in March, did not present enough evidence to compel Bush to testify in the case.


Attorney General John Cornyn, who appeared in court on Bush's behalf, said he was there to "defend an important principle." He said the state of Texas is sued about 10 times a day and that if Bush were required to testify in the lawsuit brought by May, "then this governor and future governors will have little time to do anything else."

In his ruling to quash the subpoena, Dietz, a Democrat, said that May's attorneys had not proven that Bush has "unique and superior knowledge" of the facts in the case and therefore Bush would not be required to testify. Texas case law requires that before plaintiffs are allowed to depose heads of corporations and other entities, they must show that person has information that is not available from other, lower ranking, people in the company. Cornyn argued that the same, or higher, standard should apply to the governor.

Patton Lochridge, an attorney for SCI, was pleased with the ruling. "I think it was correct," said Lochridge, who added that Dietz "analyzed it well and followed the law."


The ruling is the latest development in the whistle-blower lawsuit filed six months ago by May, the former treasurer of the Texas Democratic Party. May sued the state, Houston-based SCI and SCI's CEO Robert Waltrip, alleging that she was fired after she and other agency employees found numerous violations of state law by the company's funeral homes. As a result of the investigations done by May, the agency recommended that SCI be fined $445,000. So far, the company has not been required to pay the fine.

May, who was fired by the TFSC's board in February, claims that state legislators and Bush's office interfered with her agency's investigation in order to help SCI, the world's largest funeral company. Waltrip is a longtime friend of the Bush family and has contributed at least $45,000 to Bush's political campaigns.

The state and SCI deny that May was fired for political reasons. During the hearing, the attorney general's office released affidavits from five TFSC commissioners, all of which said that May was terminated because they had lost confidence in her. The affidavits also said that May failed to collect licensing fees, failed to properly supervise employees and had "a general lack of accountability."


As he was leaving the courthouse, Cornyn told a large group of reporters that May's efforts to depose Bush were "not about a search for the truth" and that it "could have something to do with the fact that he's running for president." Cornyn added that there are "50 other people" who know more about the case than Bush and that it is "unlikely that the governor will ever be deposed" in May's lawsuit.

Lawyers for May said they have not decided if they will appeal the ruling. But they added that the lawsuit will go forward and that depositions of Bush's staff members will be held soon. Charles Herring Jr., a lawyer for May, said that the judge "wants us to seek evidence from others and that includes [Bush campaign manager] Joe Allbaugh and [general counsel] Margaret Wilson. We will be doing that and then we'll be back."


May's other lawyer, Derek Howard, denied that his client was motivated by politics. "This is not about 'getting' Gov. Bush," said Howard.

In an unrelated legal matter, Bush was sued today by three people who were arrested earlier this year while demonstrating in front of the governor's mansion. The lawsuit, which names Bush individually as well as the Texas Department of Public Safety and three of the agency's commissioners, claims that the arrests violate the free-speech rights of the protesters. David Kahne, an attorney with the American Civil Liberties Union told the Associated Press that the arrests were "designed to intimidate and harass protesters, not to keep the sidewalks clear of pedestrians." The plaintiffs allege that no arrests were made in front of the governor's mansion until Bush became a presidential candidate.

Ray Sullivan, a Bush spokesman, told the Associated Press that the decision to arrest the protesters was made by the state troopers to "protect the safety of pedestrians and protesters around the governor's mansion."

Robert Bryce

Robert Bryce is the managing editor of Energy Tribune. His latest book is Gusher of Lies: The Dangerous Delusions of "Energy Independence."

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