Bush named as defendant

The funeral home regulator's suit "has no merit," Bush's spokesman says.

By Robert Bryce
Published April 18, 2000 4:00PM (EDT)

Last summer, a judge here ruled that George W.
did not have
to testify in a whistle-blower lawsuit
brought by a woman who
regulated the state's funeral homes. But
now that Bush is a defendant
in that same lawsuit, he may have
difficulty staying out of the

On Friday, attorneys representing former
Texas Funeral Service
Commission executive director Eliza May added Bush
a defendant in the lawsuit she filed 13
months ago. The lawsuit
alleges that May was fired by the state
in February 1999 because she
"repeatedly and in good faith reported
violations of the law" allegedly
committed by funeral homes owned by
Houston's Service
Corporation International, the world's
largest funeral company. The suit,
which originally named the funeral
agency, SCI and SCI CEO Robert
Waltrip as defendants, was
changed to include Bush because May's
attorneys allege the
governor has not been forthcoming about
his knowledge of the matter.

The amended lawsuit claims Bush
"knowingly permitted his staff to
intervene improperly" in the
investigation of SCI by the state
agency. The suit also claims his
actions are an abuse of power and were
designed to "subvert the lawful
conduct of public officials in the
performance of their
official duties."

Some background: Although May's lawsuit
deals with a number of legal
issues, it is, at root, about alleged
influence buying. The suit
claims Bush and a handful of state
legislators sprang to SCI's
defense because the funeral company gave
tens of thousands of dollars
in campaign contributions to the
politicians. The suit makes much of
the connections between Bush and
Waltrip, who has known the Bushes
for three decades. SCI's political
action committee gave Bush $35,000
for his 1998 campaign and Waltrip gave
Bush $10,000 for his 1994
race. Waltrip also serves as a trustee
for former President George
Bush's presidential library and SCI gave
more than $100,000 toward
the construction of the library. Given
those connections, the lawsuit
claims that any suggestion that Bush
would not have intervened on
Waltrip's behalf is "highly unlikely on
its face."

While Waltrip's connections to Bush are
many, May's attorneys will also
face charges that the suit is
politically driven. One of May's
lawyers, Charles Herring Jr., is the
former chairman of the Travis
County Democratic Party. May has been
active in Democratic politics
on the city and state level for more
than a decade. From 1994 to 1996
she served on the state Democratic
Executive Committee and from 1996
to 1998 she was treasurer for the Texas
Democratic Party.

Last August, Texas Attorney General John
Cornyn, a Republican and a
close Bush ally, argued that May's
deposition was being "sought
purely for purposes of harassment." Bush
has repeatedly called May's
lawsuit "frivolous." During a press
conference last summer, he said,
"This is a frivolous lawsuit; this is

May's lawyers have already failed once
in their efforts to force Bush
to testify. Last July, the lawyers
subpoenaed Bush. In
early August, Bush issued an affidavit
that said he had no "personal
knowledge" of the issues surrounding the
investigation into SCI and
that he had no "conversations with SCI
officials, agents or
representatives" about the state's

Shortly after the affidavit was issued,
May's attorneys filed a
motion in Travis County District Court
claiming Bush was in contempt of court
because his claim that he had "no
conversations" was contradicted by
SCI's own lobbyist, Johnnie B. Rogers.
The longtime Austin lobbyist
told reporters that he was in the office
of Joe Allbaugh, Bush's
chief of staff (and current campaign
manager) on April 15, 1998, when
Bush stopped by for a brief chat with
Rogers and Waltrip, who had
gone to Allbaugh's office to complain
about May's investigation.
Bush's claim of "no conversation" was
also later contradicted by Bush
himself in a press conference, and by
Bush's press secretary, Linda
Edwards, who acknowledged that the
governor had an "exchange" with
Waltrip during his April 15 visit to the
governor's office.

On Aug. 31, Travis County District Court
Judge John Dietz, a
Democrat, ruled that May's attorneys had not
presented enough evidence to
compel Bush to testify in the case. He
did not rule on the motion to
have Bush held in contempt. In his
ruling, Dietz said May's attorneys
did not show Bush has "unique and
superior knowledge" of the facts in
May's lawsuit. Texas case law requires
that before plaintiffs are
allowed to depose heads of corporations
and other entities --
including, presumably, governors -- they
must show that person has
information not available from others.

But now that Bush is an actual
defendant, he may not be able to fend
off efforts to get his testimony. A
likely scenario: Cornyn will try to
any testimony by Bush for as long as
possible. Even if a district court
judge rules against Bush, Cornyn
could appeal the ruling all the way to
the Texas Supreme Court, where
all nine justices are Republicans. But
by the time it gets there,
Nov. 7 will probably have come and gone.

The Bush campaign press office refused
to comment on the lawsuit and
referred calls to Michael Jones, Bush's
press spokesman in the Texas
capital. Jones said his office had not
received a copy of the lawsuit, but said
the "groundless suit involves
the same old claims already rejected by
the court last year when an earlier
unjustified deposition was sought. As it
pertains to the governor, this
feeble claim has no merit."

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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