The ACLU in Texas – The Early Years
On March 8, the Texas ACLU will celebrate its 70th anniversary. It’s a storied history full of setbacks and improbable victories. Today, the organization is as strong as it has ever been. After falling into disarray in the 1990s, the Texas ACLU has come back with a vengeance. It’s the eighth-largest ACLU affiliate in the United States and boasts more than 17,000 members. It operates with a multimillion-dollar annual budget and a staff of more than a dozen. The Observer and the ACLU have always had a special relationship. It was perhaps never closer than when Dave Richards rented both organizations space in his office building in the 1970s. What follows are some of Richards’ reminiscences from that period of the ACLU’s history.
It falls the lot, I suppose, of those left standing to write the history of their times. Here then is my take on the ACLU in Texas. For all practical purposes, active history begins in the early 1960s with the appointment of federal judges by Kennedy and Johnson, judges who for the first time in Texas were ready to acknowledge constitutional rights and open their courts to such claims.
The Dallas ACLU was formed in 1961, started by George Schatzki of the Mullinax & Wells law firm. George later showed up on the University of Texas Law School faculty. The Houston chapter was already in existence, emerging from Chris Dixie’s law firm. Maury Maverick Jr. was a sort of a one-man ACLU chapter in San Antonio. In the early 1960s, the Texas Civil Liberties Union was formed, consisting of these various local chapters. Sam Houston Clinton was the general counsel.
A few historical notes: When Lee Harvey Oswald was first arrested, Otto Mullinax, on behalf of the ACLU, went to the Dallas jail to see if Oswald wanted assistance, and word came back that Oswald did not want to talk to any ACLU lawyer. Oswald was dead a few hours later. Madalyn Murray O’Hair, the infamous atheist, had fled from Baltimore to Mexico just ahead of the law. She returned to San Antonio, where she was jailed on an arrest warrant. She called out for ACLU help, and Maury and Sam Clinton sprung her. Upon release she declaimed, “Thank God for the ACLU,” or so the story goes, as recounted by longtime ACLU activist Dorothy Browne. It’s not clear what “god” she had in mind.
The first major Texas ACLU case arose in 1963, when representatives of the Texas attorney general executed a search warrant at the San Antonio home of John Stanford, secretary of the Texas Communist Party. The officers seized 14 cartons of books and papers, including one book by U.S. Supreme Court Justice Hugo Black. Maury represented Stanford as the case made its way to the Supreme Court, which unanimously found the search to have violated the Fourth Amendment. It is worth remembering that in Texas in this era, as far as the general public was concerned, to be an ACLU lawyer was only a small step away from being a commie agitator.
My first ACLU case arose in 1967 and was in some ways the most fun. Everett Gilmore played the tuba in the Dallas symphony and taught one student at Dallas County Community College. He was told that to teach, he must sign a noncommunist affidavit, as required by state law. The law was a product of the McCarthy era and required, among other things, that every student at a Texas college sign the oath annually at registration. Gilmore refused, was fired, and made his way to the ACLU. By this time, the Dallas federal judiciary included such stalwarts as Sarah Hughes, Mac Taylor, and Irving Goldberg of the 5th Circuit. I ended up with all three on my panel in the Gilmore case. After trial, they promptly declared the oath unconstitutional and enjoined its enforcement. On another note, this same panel later voided the Texas abortion statute in Sarah Weddington’s historic Roe v. Wade case.
In 1969 I moved to Austin and began law practice with Sam Clinton. In 1970 we bought an old house for our offices at Seventh and Nueces. The upstairs was rented to The Texas Observer and to the TCLU. This began a wonderful, somewhat goofy era for all of us. The Observer staff during this time included, among others, Jim Hightower, Kaye Northcott, Greg Olds (one of the original founders of the Dallas ACLU), the inimitable Molly Ivins, and Cliff Olofson, who lived somewhere in the building. Passing through the TCLU during this time were such wonderful companions as Wayne Oakes, Doran Williams, John Duncan, Mary Keller, Marge Hershey, and the effervescent Dorothy Browne.
This was a great time for civil liberties litigation. The federal courts were receptive, the state of Texas was still in its antediluvian mindset, and you could almost take your pick of fat targets. Several Texas ACLU cases ended up in the Supreme Court during the early 1970s. Brent Stein, aka Stoney Burns, published the Dallas underground newspaper Dallas Notes. He was targeted by the Dallas police in the late 1960s with two raids on his house and the seizure of all his equipment and papers. He was charged with violating the state’s obscenity statute. His suit against the Dallas police was twice argued at the Supreme Court, and resulted in the voiding of the state’s obscenity law. At one point in 1971, Sam Clinton and I had back-to-back arguments before the court. I was arguing Stoney’s case, and Sam was representing antiwar activists who had been busted in Killeen for demonstrating against the Vietnam War.
ACLU cooperating attorneys, as they were called, were in private practice and volunteered their services to these unpopular causes. In Austin it made you something of a hero-not so out in the boonies. Those lawyers were a special breed of malcontent. A number of them come to mind, though I fear I may not remember all who deserve recognition. Warren Burnett in Odessa was the state’s premier trial lawyer. The rise of Hispanic activism produced constant conflicts with entrenched authority, and Warren volunteered his services all over South Texas in those disputes, as did Jim Harrington in the Rio Grande Valley. Gerry Goldstein from San Antonio is today one of the country’s leading criminal defense lawyers. Gerry was inveigled by Maury into performing innumerable ACLU services.
Don Gladden was once a member of the Legislature from Fort Worth. His ACLU lawsuits against Tarrant County and other local governments drove officialdom crazy for years on end. Initially, David Berg and Stuart Nelkin were most active as ACLU attorneys. Later, Patrick Wiseman, with his sidekick Larry Sauer, became Mr. ACLU in Houston for a decade with a multitude of lawsuits. Finally, two others who functioned in truly hostile territory were Selden Hale in Amarillo and Larry Daves in deep East Texas. No one treated them as heroes for their ACLU efforts.
The Texas attorney general’s office began to view the old Seventh Street operation as a left-wing cabal, a place where litigation was cooked up just for the hell of it. One day in 1975, John Duncan and I were sitting around the ACLU office grousing about a new Texas voter registration statute. It had been pushed through the Legislature by then-Secretary of State Mark White, and mandated purging the entire voter registration rolls-some 5 million voters-and requiring everyone to reregister. The Voting Rights Act had just been extended to include Texas, and we concluded that the purge was assuredly a violation of the act. In that era, it was important to file your lawsuit, if possible, before Judge William Wayne Justice. John said he would look around for a plaintiff and located an ACLU member who lived in Sherman. Her black maid, Ruby Flowers, became the plaintiff who derailed the voter purge, leaving the state holding 5 million letters that could not be sent.
Those were heady times. There was a fine camaraderie among all of those who took up the cudgels for the ACLU. By the end of the 1980s, the Reagan and Bush judicial appointments had taken their toll. The federal judiciary was no longer a receptive audience for social change lawsuits, and ACLU litigation in Texas began to wane. Looking back, it’s not clear what our efforts accomplished, but we certainly did enjoy the most signal of pleasures: visiting consternation upon our enemies.
David Richards is an attorney and author.