Only two people in Texas have the legal authority to investigate the influence-buying scandal swirling around Service Corporation International Attorney General John Cornyn and Travis County District Attorney Ronnie Earle.
Cornyn, the state's lead lawyer, can investigate almost anything he chooses. But in June, Cornyn's office issued an official opinion in the funeral scandal that may be beneficial to SCI, a move that disqualifies him as an objective investigator. That leaves Earle, the longtime D.A. who oversees the Public Integrity Unit, which was formed specifically to investigate malfeasance by state workers and officeholders. The unit has the power to subpoena witnesses and documents and to file charges against wrongdoers.
The PIU is largely funded by state tax dollars and its purpose is to uncover and prosecute criminal wrongdoing by state employees. It's an important job, and the unit's funding has increased dramatically over the past few years. This week, thanks to a budget increase approved by the Texas Legislature, the unit will nearly double in size when it gets three new employees to add to its current staff of two lawyers, one investigator, and one secretary.
But despite the appearance that Houston-based SCI bought influence at the highest levels of state government, effectively killed a state investigation into its embalming practices, and has escaped paying a record fine of $445,000, Earle's office is not looking at the company or the scandal. "We are not investigating and we don't intend to," says first assistant district attorney Rosemary Lehmberg.
Perhaps Earle is right to be cautious. After all, the last time the Democrat got involved in a big political investigation, he got crushed. Call it his Kay Bailey Hutchison Hangover. Ever since 1994, when Earle folded his tent and gave up in his highly publicized efforts to prosecute Hutchison for allegedly using her post as state treasurer for political gain, the D.A. has been cautious. Perhaps he doesn't have the stomach for the huge political brouhaha that will ensue. If that's the case, Earle does have some options. He could appoint a special prosecutor, perhaps a Republican, to review the case, which would allow him to step back from the investigation. Or he could ask federal authorities to participate in a joint investigation.
According to legal authorities close to the matter, Earle doesn't have to know for certain that criminal acts were committed to justify an investigation. Instead, the question he must answer is: "Is there reason to be suspicious?" By that standard the answer appears to be yes. Here are the questions that may justify Earle's suspicions:
Who removed files from the TFSC offices relating to the agency's investigation of SCI? Sources have told the Chronicle that former employees at the agency removed numerous files, an offense punishable by up to two years in state jail.
Lobbyist Janis Carter has told the Chronicle that she was paid by SCI to write a bill that was later passed by the Texas Legislature. The bill tossed out the TFSC's board and got rid of the agency's general counsel. How did SCI get its bill passed with such alacrity?
Did Bush commit aggravated perjury when he submitted an affidavit that appears to be less than truthful?
Why is Sen. John Whitmire the Houston Democrat who rushed to SCI's aid after the TFSC began investigating the company claiming legislative privilege to avoid testifying in the whistle-blower lawsuit filed by Eliza May, former executive director of the funeral agency? What does Whitmire who received $5,000 from SCI's political action committee and is of counsel at Locke Liddell & Sapp, the law firm that represents SCI know about his firm's work for SCI? And who came up with the list of 11 questions that Whitmire sent to Cornyn on June 15, 1998?
Documents obtained by the Chronicle show that in January of this year, Locke Liddell was sending documents relating to the SCI investigation directly to Andy Taylor, Cornyn's assistant and a former Locke Liddell partner. Did Taylor's former law partners ask him to take actions as a state official to help their client?
Why did Cornyn's office issue an opinion? The AG usually refuses to issue opinions on pending matters.
Why did Sen. Ken Armbrister, D-Victoria, who got $1,500 in campaign contributions from SCI's PAC, submit a list of questions to Cornyn's office on April 9, just one day after Cornyn circulated an internal e-mail saying he wanted to review "all instances in which the Opinion Committee believes we should decline an opinion request"? And why was Armbrister's list of 11 questions almost identical to the one Whitmire had sent to Cornyn the year before?
Were state legislators bribed by SCI? Five legislators who wrote nearly identical letters to the TFSC board inquiring about the agency's investigation reported major campaign contributions from SCI.
How has SCI thus far escaped payment of a $445,000 fine that TFSC levied against the company? Although SCI disputes some of the fines, particularly those relating to licensing issues for embalming procedures, a substantial part of the fine came from the company's refusal to honor the agency's subpoenas.
Was there an SCI conspiracy to crush the TFSC and get rid of Eliza May? Kenneth J. Hughes, an outgoing TFSC board member and strong supporter of Gov. Bush, believes the company muscled the agency, whose mission is to protect consumers.
Those are the main questions. Is Earle still an enterprising prosecutor interested in protecting consumers? That may be the biggest question of all. R.B.