What's in a Name?

Ask Gov. Rick Perry’s chief spokesman, Mark Miner, a question on any issue these days and the answer will invariably begin, “Liberal trial lawyer Bill White …”

The gruff-but-disciplined operative is expert at staying on message, and he’s determined to hang the liberal-lawyer stereotype — conjuring a vision of the greedy ambulance chaser — firmly around the Democratic gubernatorial nominee's neck and to make him confront it. White has obliged, realizing, surely, that labels can trump issues in any campaign dogfight and that “trial lawyer” is a four-letter word in much of Texas.

So is he one or isn’t he? More importantly, should it matter?

White appears to think so. Asked in March if he's a trial lawyer, White replied, “I mean, I tried lawsuits, but never plaintiff’s personal injury. I represented businesses — that’s who I represented." Asked if being labeled a trial lawyer during a 2010 election in Texas was a negative, he responded, “Well, if it was true, absolutely. If it’s false, then maybe people would see there’s enough falsehoods, and they shouldn’t trust people with no credibility.” He added: “Including journalists who repeat these things.”

The Perry team set all this in motion even before the general election line-up had been fixed. In late February, a memo written by Perry advisor Dave Carney articulated a caricature of White, the opponent he expected his boss to meet in November: “In this political environment no competitive state will elect a big city trial lawyer, anti gun, sanctuary city promoting, Clinton protégé DC politician, let alone a conservative state like Texas.“

Since then, the campaign has relentlessly sought to force "trial lawyer" deep into the subconscious of voters — there’s no issue too tangential to prevent its inclusion in a Perry campaign press blast. For example, when White criticized Perry’s calculation of the dropout rate, a release shot back, “Liberal trial lawyer Bill White ignores facts when they don’t suit his agenda." A release about Houston libraries shutting down for budgetary reasons: “For 32 days liberal trial lawyer Bill White has hidden the truth from Texans...” A release detailing the firing of a government whistleblower: “On Day 44 of liberal trial lawyer Bill White hiding his tax returns from the people of Texas...”

Trial lawyer or not, White at this point is far removed from being a practicing lawyer of any kind. His legal career began when he graduated University of Texas School of Law in 1979 and took a job at the Houston firm then known as Susman, Godfrey & McGowan. He quit the firm in 1993 and has since served as the U.S. Deputy Secretary of Energy under Bill Clinton, headed up companies like Frontera Resources, Howe-Baker, and WEDGE Group, and, most recently, served three terms as the mayor of Houston.

Nonetheless, the Perry campaign seems intent on taking voters back two decades, highlighting cases White worked on involving tort claims that they contend justify the “plaintiff’s personal injury” tag he specifically denies. In general, the definition of "tort" includes all civil wrongs other than a breach of contract — including, but not limited to, in lawyer parlance, the kind of personal injury cases that generally define “trial lawyers” in the public mind. Predictably, the Perry camp defines "trial lawyer" more broadly than the White camp does.

In one of the cases Perry’s campaign cites, White represented the now-deceased Billy Goldberg, a Democratic heavyweight from Houston, in a 1987 tort claim seeking damages from a construction company for “emotional distress.” Spinning out of a previous business dispute, Goldberg sought personal compensatory damages from R. J. Longo Construction Company for, among other things, “distress he has suffered and continues to suffer as a result of Longo’s wrongful conduct.” In the course of seizing property from Goldberg’s company to satisfy a business debt, federal marshals — acting at the direction of Longo — rifled through and took Goldberg’s personal property, causing him distress, White asserted on Goldberg’s behalf. According to the petition, “This distress continues to this day even though his personal property has been returned because of the reasonable perception that the defendants rifled through his personal papers and belongings, gaining access to confidential information that they are not entitled to have.”

Does that make White a personal injury trial lawyer? Perry spokesman Catherine Frazier says it does. "There are numerous cases that show he did serve in that capacity," she says. But White spokesman Katy Bacon doesn't buy that there's a “personal injury” in the Goldberg case or, for that matter, in any other case that White took on. “This isn’t a case where someone’s coffee was too hot or they found a rat in their food and were grossed out so they got money,” she says. “That's a completely different type of case. This is a property case — not a personal injury case. I don’t have to tell you that personal property in Texas is a big deal."

“Most Texans know Bill White as the popular mayor of Houston and a successful businessman,” she insists.

Bacon doesn't dispute that when White was a practicing lawyer, he represented businesses on both sides of the docket — as plaintiffs and defendants — or that he often asked the courts to add on punitive or exemplary awards in additional to actual damages, a practice that draws the ire of advocates of the tort reform movement, which largely turned “trial lawyer” into a cuss word. Yet in some cases, Bacon says, White attempted to lower punitive damages.

Most lay people hear “tort” and think “tort reform,” another controversial phrase in state politics. Sherry Sylvester, a spokeswoman for tort reform advocacy group Texans for Lawsuit Reform, says of trial lawyers: “Their agenda is to push legislation that tilts the court in favor of their client, so they can make more money. That’s how we define it.”

TLR formed in 1993 — just as White quit practicing law, and a year before Texas was called the “Lawsuit Capital of the World,” by the Wall Street Journal. TLR’s agenda struggled at first, but its fortunes turned when Republican George W. Bush took office as governor of Texas in 1995, a year in which it saw huge success tightening restrictions on punitive damages. In 2003, when Republicans gained control of the Texas House, another wave of tort reform legislation swept over the state. Sylvester contends that the public, like the Legislature, has come around to TLR's way of thinking. “58 percent of Texans support tort reform — and want more,” she says. “That’s a majority of Democrats and over 80 percent of Republicans.” Perry, she says, “is one of the strongest tort-reform governors in the country.”

Tex Quesada, a Dallas attorney who is president of the Texas Trial Lawyers’ Association, frames the debate differently. “As a general rule, the trial lawyers are attorneys who are representing small businesses or families who have claims against insurance companies, or Wall Street bankers, or oil refineries.” Attorneys going up against such organizations, he says, “tend to make powerful enemies among very powerful groups.”

Asked why his profession repeatedly comes under attack in the governor’s race, Quesada says, “I can’t begin to tell you what motivates a politician who gathers very heavy support from insurance companies and oil refineries to decide which attack to lodge. It’s not unusual for a politician who wants support from business interests or oil companies to attack lawyers. It’s a lot easier to attack lawyers than to defend insurance companies or oil refineries.”

If statewide polls are any indication, the general public is unmoved by the is-he-or-isn't-he debate. After more than a month of general election name-calling by the Perry campaign, White is registering his highest level of support, according to a Rasmussen Reports survey released this week. Rasmussen has Perry beating White by only 4 points, 48 to 44. In March, Perry had a six-point lead, 49 to 43.

Nonetheless, that debate is likely to continue — at least if the Perry campaign has its way. “The public should be concerned with people who take advantage of our legal climate in ways that waste money and that made a mess of our health care system that the governor and other state leaders have had to go back and fix and are continuing to improve,” Frazier says.

The White campaign counters that it’s easy to hate lawyers until you need one. “People who bring legal actions or defend legal actions deserve fair representation,” Bacon says. “Rick Perry is playing on a stereotype, and it’s never a good idea to malign an entire profession.”

In the Till

Lloyd Doggett, Ron Paul, Jeb Hensarling, Joe Barton, Chet Edwards and John Cornyn — all members of the Texas delegation to Congress — each have at least $1 million in their campaign accounts. Doggett's at the top of the list, with $3.1 million on hand. Edwards, with $1.7 million on hand, is an interesting case since, unlike his fellow congressmen, he's got a bracing election ahead against Republican Bill Flores. Flores, who survived a GOP primary runoff earlier this month, had only $60k in the account at the end of March. And here's a funny stat: 34 of the 41 Texans whose cash on hand totals top the latest reports with the Federal Election Commission's are incumbents.

Counting the Laggards

U.S. Census workers will soon spread out across Texas neighborhoods, going door-to-door to count the millions who didn’t fill out their 2010 questionnaires. This week marked the deadline to respond via mail, and Texas once again fell below the national participation average. Sixty-eight percent of Texans mailed back forms, compared to 71 percent nationally. That means Texas could again lose out on millions, or perhaps billions, in monies for transportation, schools and health and human services programs.

Had every household in the country responded, $1.5 billion in taxpayer money could have been put to other use. That’s how much the bureau estimated it would cost to do a complete door-to-door count. Some of Texas’ hardest to count areas, the impoverished areas near the border known as colonias, were of particular concern in the early stages of the U.S. Census Bureau’s campaign to raise awareness about the decennial count. But Census Director Robert Groves admitted to the Rio Grande Guardian that despite its best efforts, the department fell short of its outreach goals in the area.

D-Fence

With the dust settling from last week’s runoffs, two Democratic congressmen have the GOP mustering at their gates. Republicans’ best shot at winning congressional seats in Texas are CD-23 and CD-17, currently held by Democrats Ciro Rodriguez of San Antonio and Chet Edwards of Waco, respectively.

Rodriguez’s district is heavily Hispanic, but contains pockets of Republican strongholds in North Bexar County. Edwards’ district is the most Republican held by Democrat in Congress, but he’s held that seat through thick and thin since 1992.

Canseco’s victory last week prompted Cook’s Political Report to shift its rating of the 23rd district from “likely Democratic” to “lean Democratic.” Dave Wasserman, the publication’s House analyst, explains: “Republicans finally got the candidate they wanted here … I don’t base that alone on his ethnicity, he has a pretty solid business background and he has run here before in South Texas.”

“This district deceptively dangerous for Democrats because it took a very high Hispanic turnout to produce a very narrow win for Barack Obama in 2008,” Wasserman said, “I predict that the Hispanic share of the electorate will go down in 2010.”

CD-17, which Cook’s consistently rates “Lean Democratic,” is growing more and more Republican each year, and in an election cycle likely to be rough on Democrats, Wasserman predicts Edwards will face a tough fight to keep his seat. The National Republican Congressional Committee has long had Edwards in its sights: “Pete Sessions, the chair of the NRCC, considers it his unfinished business to defeat Chet Edwards,” Wasserman said.

The Week in the Rearview Mirror

A new rule from the Texas Ethics Commission, written in response to the U.S. Supreme Court’s recent Citizens United case, says corporations can spend money in elections but have to disclose where that money comes from. Current law still prohibits corporations and labor unions from donating directly to candidates. Watchdog groups say the rule might not cover trade associations and “political ‘front’ groups” to disclose donors. They're thinking of (some of them, anyhow) of outfits like the Texas Association of Business, which famously teamed with then-U.S. House Majority Leader Tom Delay’s political action committee to run ads against Democrats to help wrest the state House from Democratic control in 2002.

The U.S. Supreme Court isn’t getting involved in the case of Charles Dean Hood, a Texas man sentenced to death in 1990 on double-murder charges. During Hood’s trial, the judge and the prosecutor had a romantic relationship, which they admitted under testimony last year. After issuing a reprieve the day before Hood was scheduled to die in 2008, the Texas Court of Criminal Appeals ordered a new sentencing trial, but left the conviction intact. In addition to Hood’s case, the nation's high court also declined to hear four other death row cases from the state.

The Texas Commission on Environmental Quality has more power than usual over school finances at the moment. If it decides to allow Valero Energy Corp. a property tax exemption for pollution control equipment called “hydrotreaters” that remove sulfur from gas and diesel to reduce emissions, the commission could deprive schools in some districts of nearly 85 percent of their funding. Currently, state officials oppose applying the exemption to the hydrotreaters, because they do not reduce emissions on-site.

Former GOP gubernatorial candidate and oilman Clayton Williams Jr. made headlines after unsettling parts of the West Texas community. His company, Fort Stockton Holdings, applied for a permit to slurp up to 15 trillion gallons of water from the Rio Grande watershed in Pecos County. He hopes to sell the water for municipal use outside of Pecos County. FSH already has a permit to draw the same amount for irrigation purposes, but an attorney for Williams says that for every gallon pumped with the new permit, an equal amount would remain untouched by the other.

The Mexican American Legislative Caucus teamed up with the Legislative Study Group, the House Black Caucus and Senate Hispanic Caucus for a State Board of Education special hearing. The groups are united in their opposition to the now-famous curriculum debated by the SBOE, which many groups allege leave out key historical figures.

Gov. Rick Perry made a list of the country’s 10 worst governors assembled by a liberal watchdog group. Citizens for Responsibility and Ethics in Washington said Perry made the list for, among other things, disregarding campaign finance laws and avoiding transparency. Perry’s office was unfazed by the remarks, saying Texas ranks first in online transparency.

The Texas Capitol building is getting a facelift, starting with the House of Representative’s chamber. Workers will begin painting the West Side chamber this week, which will close the area until Thanksgiving. Plans also include painting the statehouse’s dome to match the pink granite of the main building.

Political People and Their Moves

When she was running for governor, Kay Bailey Hutchison gave up her posts near the top of the GOP in the U.S. Senate. Now she's making her way back. She's in the Senate Republican leadership as "counsel" — one of three in that spot — after being tapped by Senate Minority Leader Mitch McConnell.

Al Erwin, a lobbyist and former Public Utility Commissioner, is getting a kidney transplant next week and the donor — carefully matched up for biological compatibility and all that — is ... his wife, lobbyist Gay Erwin. A statistician would call that sort of compatibility unlikely, but there it is. Al blames Agent Orange exposure in Vietnam for his kidney problems.

Scratch John Stevens as a candidate for U.S. Attorney in the state's Eastern District. He was nominated by President Barack Obama, but withdrew his name and will run for reelection as a district court judge in Jefferson County.

Newbies: Eric Johnson, D-Dallas, is now a state representative; he was the only candidate in the special election for Terri Hodge's seat in the House. She quit as she plead guilty to federal tax charges. And Van Taylor, R-Plano is now in office; he defeated Mabrie Jackson in a GOP runoff for Brian McCall's seat. McCall quit early to become the new chancellor of the Texas State University System.

Quotes of the Week

Gov. Rick Perry at the Southern Republican Leadership Conference: "Republicans got frustrated. They got frustrated because we elected men and women who said, you know, 'Elect us and we're going to go to Washington, D.C. with an R behind our names.' And they went to Washington, D.C. and we ended up couldn't tell the difference between whether they were Republicans or Democrats. That's what happened to the Republican Party."

Perry, on accepting federal stimulus money, during a sit-down for Newsweek and The Texas Tribune: “We Texans send billions of dollars to Washington, D.C., in the form of federal gas taxes and income taxes. These are Texas-earned, Texas-generated dollars — monumental amounts of money, substantially more than flows back into this state. So the idea that we’re going to be purer than pure and not take any money back because it’s been identified as stimulus dollars? These are our dollars. This is our money."

U.S. Sen. John Cornyn of Texas, talking about Scott Brown, the new guy in the Senate, in The Wall Street Journal: "Everyone expected him to be not a Texas Republican but a Massachusetts Republican, and they are not the same thing."

Lt. Gov. David Dewhurst on the possible ramifications of health care reform, at the anti-Obamacare rally at the Capitol: “We’re either going to dramatically increase our taxes in Texas or we’re going to have to cut back in programs like public education, like higher education, like public safety, like transportation, and that’s unacceptable.”

Luana Buckner, the chairman of the Edwards Aquifer Authority’s board of directors, on the upcoming Texas Supreme Court decision in EAA v. Day, in The Texas Tribune: “This is the water case in the state of Texas. The opinion that’s going to come out of this court — I can’t even think of the superlative to use to describe it. The amount of nail biting that is going on over it is just phenomenal. This ownership issue is at the heart of every major groundwater issue that’s being talked about across the state.”

Vicente Burciaga, telling The New York Times why he fled from El Porvenir, Mexico, to the U.S.: "It’s very hard over there. They are killing people over there who have nothing to do with drug trafficking. They kill you just for having seen what they are doing."

Contributors: Reeve Hamilton, Julian Aguilar, and Morgan Smith

Texas Weekly: Volume 27, Issue 16, 26 April 2010. Ross Ramsey, Editor. Copyright 2010 by The Texas Tribune. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (512) 716-8600 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 716-8611.