As Hearings Resume, UT System Lawyers in the Spotlight

House Committee on Transparency in State Agency Operations co-chairs Rep. Carol Alvarado, D-Houston, and Rep. Dan Flynn, R-Canton, during a hearing on Oct. 22, 2013.
House Committee on Transparency in State Agency Operations co-chairs Rep. Carol Alvarado, D-Houston, and Rep. Dan Flynn, R-Canton, during a hearing on Oct. 22, 2013.

The spotlight will be on the University of Texas System lawyers and just how much they must tell lawmakers on the House Select Committee on Transparency in State Agency Operations as the panel investigates whether to file articles of impeachment against a controversial regent. 

The committee convenes Tuesday to begin two days of hearings in its ongoing probe that could determine whether articles of impeachment should be filed against UT Regent Wallace Hall, who lawmakers have accused of being on a “witch hunt” to oust University of Texas at Austin President Bill Powers.

Hall and his attorneys have said the regent’s investigative efforts — which have yielded more than 800,000 documents in response to his requests for information — were driven by findings of questionable practices at the flagship university.

An attorney for Hall did not respond to a request for comment for this story.

Hall, the regent at the center of the investigation, is not expected to attend this week’s hearings, which may not take two full days. Rather, the committee is expected to hear from some of the UT system’s top lawyers, including its general counsel and vice chancellor Dan Sharphorn, and the general counsel to the board of regents, Francie Frederick.

“I think we’re going to get some insight into the attorney-client issues,” committee co-chair state Rep. Carol Alvarado, D-Houston, said on Monday.

During an initial round of witness testimony in October, the system’s former general counsel, Barry Burgdorf was subpoenaed and testified before the committee, but he was restricted somewhat by the system, which asserted attorney-client privilege on certain matters.

During the hearing, state Rep. Trey Martinez Fischer, D-San Antonio, expressed doubts that such a privilege could be applied in these circumstances. When he asked the UT System to produce Sharphorn to explain the system’s approach to the issue, Sharphorn was not produced — resulting in a rather anti-climactic conclusion to the proceedings.

Fischer subsequently asked the committee’s special counsel, Houston attorney Rusty Hardin, to make sure that future hearings include a “subject matter expert testify about the presence or lack of any testimonial privileges that have been or may be asserted by witnesses before the committee.”

Sharphorn and the regents decided to seek some guidance on the matter on Monday. After a closed-door meeting that lasted about an hour and a half, the board voted to seek an opinion from the attorney general about its ability to restrict testimony under attorney-client privilege. An opinion is unlikely to be ready before Tuesday’s legislative hearing.

The board also voted to waive attorney-client privilege "in a limited manner concerning those certain matters as recommended by outside counsel" during the regents' closed-door meeting. System officials have declined to specify which "certain matters" for which the privilege would be voluntarily waived. 

In addition to issues of attorney-client privilege, Alvarado said this week’s hearings would likely probe how the system handled sensitive information about UT-Austin students and employees.

Barbara Holthaus, a senior attorney for the system and an expert on privacy matters, is expected to be a witness.

During the October hearings, lawyers for UT-Austin expressed concerns that they could not vouch for the handling of private employee and student information that was turned over to the system in response to Hall's requests. Kevin Hegarty, UT-Austin's chief financial officer, admitted to the committee that he was worried about the legal ramifications if private information was shared, as well as the potential professional ramifications for protesting how documents were being handled by system officials.

“It’s obvious that these folks are afraid for their jobs,” Alvarado said of the previous witnesses, “so the fact that they came out and gave testimony says a lot about the significance of these hearings.” 

If Hall were to be impeached, he would be the first non-elected government appointee to suffer such a fate in the state’s history.

A number of wrinkles have cropped up since the October hearings that also could come up this week.

Paul Foster, the new UT System board chairman, indicated that he plans to propose new rules that will narrow regents’ abilities to launch their own investigations without explaining their motives.

It came to light that, according to a former regent who was on the call, Hall told an agent for University of Alabama football coach Nick Saban via telephone in January that he expected Powers to be gone by the end of the year.

And one of the committee members, state Rep. Lyle Larson, R-San Antonio, indicated to Gov. Rick Perry that he believes the best course of action is for Hall to resign. Perry didn’t appear convinced; he publicly supported Hall and called the committee’s investigation “extraordinary political theater.”

More hearings have been tentatively scheduled for early December.

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