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Texas’ former funeral home regulator who alleged she was fired in 1999 for investigating a funeral home chain owned by a friend of President George W. Bush settled her whistleblower suit for $210,000, but details of the settlement are veiled in secrecy. The terms of the settlement agreement in Eliza May v. Texas Funeral Service Commission are designed to assure that the public’s knowledge about the case will be limited. Released by the Texas Office of Attorney General on Nov. 14, the agreement requires all discovery documents to be returned to the party that produced them. The agreement also requires that all transcripts of depositions be returned to the party who gave the deposition or, in some cases, to the employer of the person deposed. “It’s not common,” Derek Howard, one of Eliza May’s attorneys and a partner in Austin’s Howard & Kobelan, says of the requirement. “I’ve never seen that happen, not in a government situation,” says James C. Harrington, director of the Texas Civil Rights Project in Austin and an attorney who frequently files whistleblower suits. “I think it’s preposterous that they’re trying to hide this,” Harrington says. Frank Newton, dean of Texas Tech University School of Law, says historically it has not been the norm in whistleblower cases for government officials to seek the return of discovery materials but that such requirements have become “standard practice” in the past couple of years. “It’s good lawyering,” Newton says. Newton says government officials may include such requirements in a whistleblower’s settlement agreement to prevent the use of discovery documents for political purposes. Another reason for seeking the return of discovery materials, he says, is to prevent their use by others to show a pattern by a governmental entity. None of the defendants in May admits liability or wrongdoing. May was fired as executive director of the Funeral Service Commission in February 1999 and filed her suit the following month. According to her petition, May had served as head of the agency since August 1996. The suit alleged that Bush, while the governor of Texas, personally interfered in the commission’s investigation of Houston-based Service Corporation International at the request of SCI’s chief executive officer, Robert L. Waltrip, a financial patron of the Bush family. The commission assessed approximately $450,000 in fines against SCI affiliates in 1998 for allegations including irregularities in embalming practices. Harry Whittington, chairman of the commission, says the case is still pending at the State Office of Hearing Examiners. SCI, described in the suit as the world’s largest operator of funeral homes and cemeteries, is named as a defendant in the suit along with the Funeral Service Commission, Waltrip, Bush and Attorney General John Cornyn. The suit alleged that Cornyn, now a Republican candidate for the U.S. Senate, reversed a decision by the chairwoman of the OAG’s opinion committee that it would be inappropriate to issue an opinion in a pending contested case. The opinion that Cornyn issued in June 1999 was favorable to SCI. May’s attorneys tried to depose Bush and Cornyn but only were able to question some members of their staffs. Charles “Chuck” Herring, another of May’s attorneys and a partner in Austin’s Herring & Irwin, says the settlement agreement limits what the parties can say about the case. The statement prescribed by the agreement says its “precise terms and conditions” are contained in the final settlement document, “which is available to the public.” But little information is provided in that document. The agreement says May and her attorneys are provided $195,000 for the “settlement of all disputes” and $15,000 for litigation expenses and court costs; it doesn’t indicate who is paying that amount. “We cannot comment beyond what’s in there,” says Mark Heckmann, spokesman for the attorney general. SCI’s attorney, McGinnis Lochridge & Kilgore partner Pat Lochridge of Austin, declines comment about his client’s share of the payment. However, a source familiar with the settlement estimates SCI paid $50,000, while state entities paid the rest. Whittington, an Austin attorney, says the Funeral Services Commission, acting on the attorney general’s recommendation, agreed to pay $50,000 of the state’s portion — the maximum amount the agency could pay under the state appropriations act. “We didn’t want to pay anything out,” he says. “We did agree to do it, but it was reluctantly.” Whittington says he doesn’t know which other state agencies are involved in the payout.

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