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The Texas Supreme Court will decide whether Texas Attorney General John Cornyn and three of his former aides must give depositions in a whistleblower suit brought by the former chief regulator of the state’s funeral home industry. Arguments in In Re John Cornyn will be heard Oct. 17, the high court said in an Aug. 30 order. Attorneys for Eliza May, who was fired as director of the Texas Funeral Service Commission in February 1999, want to question Cornyn about his decision to issue an opinion favorable to Service Corporation International. The commission had investigated the Houston-based funeral home operator for alleged illegal embalming practices and recommended that it be fined $450,000. The plaintiff alleges in May v. Texas Funeral Service Commission that Cornyn was part of a conspiracy to protect SCI. Cornyn reversed a decision by the Office of the Attorney General’s opinions committee chairwoman that it would be inappropriate to issue an opinion in a pending contested case, the suit alleges. Cornyn issued the opinion in June 1999. Austin’s 250th District Judge John Dietz ordered Cornyn and his former staff members to give depositions in the case, but the attorney general cried foul. Cornyn argues in his petition to the supreme court that he’s entitled to “absolute immunity” from May’s suit because his constitutionally derived responsibility to issue opinions is “quasi-judicial in nature.” Charles Herring, May’s attorney, says Cornyn and the three former OAG lawyers — Andy Taylor, former first assistant attorney general; Clark Kent Ervin, former deputy attorney general; and Elizabeth Robinson, former opinions committee chairwoman — are fact witnesses to what SCI told them and what they told the company. “The mere fact you’re in office doesn’t mean you can’t be a fact witness, so why shouldn’t we depose them?” asks Herring, a partner in Austin, Texas’ Herring & Irwin. Herring questions Cornyn’s jurisdiction to issue the opinion when the OAG was representing the funeral service commission. He also questions Cornyn’s authority to prevent the depositions of former OAG employees. Ervin gave a deposition in the case April 3. Cornyn spokesman Mike Viesca says the purpose of the judicial immunity doctrine is to protect elected officials and their staffs from harassing discovery and suits filed by people displeased with the results of the officials’ decisions. “Ms. May’s attorneys have never sought to obtain discovery from Attorney General Cornyn as a nonparty fact witness, and it would be inappropriate for them to do so as long as they continue to assert legal claims against him,” Viesca says. “The legal issue of whether [the] plaintiff can obtain discovery from General Cornyn and his staff as nonparty fact witnesses will be addressed when he is no longer a named party in this suit.” Herring says he wants to find out if Cornyn’s decision to issue an opinion in the SCI matter was influenced by Austin-based Locke Liddell & Sapp, a firm that represented the funeral home operator. McGinnis, Lochridge & Kilgore partner Pat Lochridge of Austin, who represents SCI, says there was “no improper influence” in regard to the opinion. Taylor left Locke Liddell to join the OAG staff and recently returned to the firm as a partner. Ervin was an associate with Locke Liddell for two years beginning in January 1993, according to the transcript of his April 3 deposition. State Sen. John Whitmire, of counsel at Locke Liddell, made the initial request for the opinion in a June 15, 1998, letter to then-Attorney General Dan Morales, who didn’t deal with the matter before leaving office. Whitmire says the opinion request was “totally unrelated” to his employment at Locke Liddell. “It was a routine Senate matter handled like I’ve handled scores of other matters,” Whitmire says, but declines further comment. May alleges in her suit that the OAG was “deeply involved” in trying to assist SCI when it was providing legal advice to her and the commission. The suit alleges that Locke Liddell partner Bruce LaBoon began discussing the company’s concerns with Taylor and Ervin in January 1999 — just a few weeks after Taylor left the firm. Ervin testified that Taylor recused himself from the SCI matter because of his former employment with Locke Liddell, the transcript of Ervin’s deposition shows. Ervin identified Taylor’s handwriting on notes of a phone call from LaBoon but testified that Taylor only wrote down what his former law partner said and did not have a conversation with him. In an April 30 deposition, LaBoon testified that Taylor never mentioned that he had recused himself from involvement in the SCI matter. Ervin, Taylor and LaBoon did not return phone calls for comment. Locke Liddell managing partner Bryan Goolsby was out of town and could not be reached for comment. Kenneth Simon, managing partner of the firm’s Houston office, did not return a call.

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