Capitol Offenses

Over the past year and a half, the Texas Funeral Service Commission has seen more bizarre plot changes than “Melrose Place.” Fans shouldn’t look for the tiny agency to leave prime time any time soon. Upcoming episodes this summer include exciting courtroom scenes starring several Texas political titans. The action-packed courthouse coverage will feature lots of shots of Attorney General John Cornyn actively defending his client, Governor George W. Bush, now a defendant in a lawsuit brought by Eliza May, the former executive director of the Commission. There’s also a high-stakes hearing at the State Office of Administrative Hearings pitting funeral giant Service Corporation International against state lawyers over the agency’s pending $445,000 fine against the company.

Other special episodes will recall performances by First Lady Hillary Clinton, as agency officials explain how two boxes of documents containing the Commission’s case against S.C.I. mysteriously vanished – and then suddenly reappeared in the agency’s file room. Finally, there will be ongoing installments on the travails of the agency’s recently hired but already besieged executive director, O.C. “Chet” Robbins. Despite the exciting season of programming, however, it also appears that the Legislature (which nearly pulled the plug on the funeral soap opera during its last session) may decide to end the series early next year by permanently shifting the agency’s duties to the Texas Department of Health.

The Funeral Commission – whose origins date back to the turn of the century, when the state decided it needed an agency to regulate morticians – has been relatively quiet for most of its history. But the Nineties were anything but calm. The agency has had six executive directors in the past six years. The one who preceded Eliza May landed in jail on charges of aggravated perjury and witness tampering.

Most Texas funeral directors were hoping that the Commission would quiet down with the hiring of Robbins, a former military man who obtained his funeral director’s license shortly before he was hired last October. But May’s pending lawsuit against Bush will keep the focus on the funeral industry and on the Commission’s efforts to police it. The lawsuit, filed thirteen months ago and amended in mid-April to include Bush as a defendant, alleges that the Governor “knowingly permitted his staff to intervene improperly” in the investigation of S.C.I. by May and her employees. The suit also claims Bush’s actions are an abuse of power and were designed to “subvert the lawful conduct of public officials in the performance of their official duties.”

At the heart of May’s lawsuit is the appearance of influence buying. The suit claims Bush and a handful of state legislators sprang to S.C.I.’s defense because the funeral company gave tens of thousands of dollars in campaign contributions to the politicians. The suit delineates the many connections between Bush and S.C.I.’s chief executive officer, Robert Waltrip, who has known the Bush family for three decades. His company’s political action committee gave Bush $35,000 for his 1998 campaign, and Waltrip gave Bush $10,000 for his 1994 race. Waltrip also serves as a trustee for former president George Bush’s presidential library in College Station, and S.C.I. donated more than $100,000 toward the construction of the library. Given those connections, the lawsuit claims that any suggestion that Bush would not have intervened on Waltrip’s behalf is “highly unlikely on its face.”

May’s suit against Bush focuses on two meetings that took place in the office of Joe Allbaugh, Bush’s former chief of staff and current campaign manager. May alleges that Allbaugh purposely tried to intimidate her and to halt her investigation into S.C.I. It also alleges that Bush’s general counsel, Margaret Wilson, called May and told her that she was “under a lot of pressure” to end May’s investigation of S.C.I. and that if May didn’t halt the investigation, it “would be taken away” from the Funeral Commission and handled by Bush’s office.

Proving those allegations will likely be difficult, and Bush and his allies will do all they can to discredit May and her lawyer, Charles Herring Jr. May has been active in Democratic politics on the city and state level for more than a decade. From 1994—96, she served on the state Democratic Executive Committee, and from 1996—98 she was treasurer for the Texas Democratic Party. Herring is the former chairman of the Travis County Democratic Party. Those political connections certainly won’t help May pursue her claim. She also faces a potentially difficult adversary in Cornyn, who finds himself in the unusual position of defending Bush against May’s lawsuit while representing the Funeral Commission in its hearing against S.C.I.

Cornyn’s difficulties are also political. If he stands behind the Commission in its hearing against S.C.I., he likely hurts his other client, Bush, because May’s lawsuit is predicated on her belief that she was pursuing a proper investigation of S.C.I. If Cornyn supports the Commission case against S.C.I., he lends credence to May’s claim that S.C.I. tried to halt her by going to Bush’s office for help.

Lost and Found

First Lady Hillary Clinton was at the center of an investigation into numerous missing files on the Whitewater affair that suddenly reappeared inside the White House during the height of the investigation. A similar tale is now being told by Robbins and the Funeral Commission’s chief investigator, Ed Kubicek. Over the past few months, Robbins and the Commission chairman, Austin lawyer Harry Whittington, have repeatedly said their efforts to reopen the investigation into S.C.I. were stymied because they could not find all of the documents compiled by May and her investigators. But during an interview in late April, Robbins and Kubicek said two file boxes full of S.C.I.-related materials had suddenly materialized in the Commission’s file room, in their rented office space in downtown Austin. “Two boxes just appeared,” says Kubicek. “Either I’m the most inept investigator ever to put on a pair of cowboy boots, or information just arrived.”

Neither of the men offered any explanations on how or why the files could have been removed and later replaced. But it seems the magical reappearance of the files will help the Commission pursue its case against S.C.I., though it’s not clear to what extent Robbins and Kubicek will fight to maintain the $445,000 fine imposed against the company. Robbins said he would not testify during the administrative hearings, because he was not at the funeral agency during the time of the investigation. Instead, Kubicek, who was also working elsewhere at the time of the investigation, is likely to be the Commission’s chief witness. According to the two men, only one Commission employee still with the agency, Earl Monreal, an inspector, was on the payroll at the time of the S.C.I. investigation. They were not sure if Monreal will be asked to testify.

The confusion over the preparation of the S.C.I. case and the cost of a hearing at the State Office of Administrative Hearings has put Robbins under a great deal of scrutiny. The Commission, which has ten employees, operates on just $501,000 per year. And Robbins doesn’t know how his agency will be able to afford the hearing, which is expected to cost at least $20,000. “We are going to do the best job we can,” he says.

The Director’s Casket

Robbins says he applied for the job at the Commission because he “wanted to make a difference.” He is very proud that Commission investigators have closed dozens of complaint files since he took over the executive director’s job. But Robbins’ personality and management style have irritated a lot of people in the funeral industry.

Several funeral directors complain that the Commission has not processed their new license applications. One funeral director, Pat Graham, testified at the March 28 Commission meeting that his license has been delayed for more than five months, even though the state has cashed his check. Graham owns a retail casket store and has been at odds with Robbins over casket retailing. Robbins has complained publicly about retail casket sales, and has since asked Cornyn for a ruling on the legality of such sales. At the March 28 meeting, Graham complained about the agency’s apparent refusal to issue his license and wondered aloud if his license was “backed up for political reasons.” Graham later told a reporter that he would like to see the Commission cleaned up, but that “the first problem I see is Mr. Robbins.”

Graham and other funeral directors were dismayed at the March meeting when Robbins launched a vitriolic attack on lawyers from the Attorney General’s office – thus perhaps estranging the very lawyers who are appointed to represent his agency. Robbins then gave a rambling monologue defending his work: “If you are not doing your job,” he said, “everybody likes you. And furthermore, you may get indicted.” He announced he had been “misquoted” (without saying when or by whom). “I get it from three sides but I’m not complaining,” he continued. “I get it from the consumer, I get it from the funeral directors, who are also my consumers, and I get it from the legislators.”

Robbins’ comments brought snide remarks and a flurry of angry responses from many of the funeral directors in the room, some of whom are angry with Robbins for his handling of a regulatory issue in the Dallas area. The North Texas Funeral Directors Association has filed a formal complaint against the North Texas Cremation Society, claiming that it is violating Funeral Commission regulations. Beverly Henley, the president of the funeral directors group, says that Robbins has been less than truthful in his discussions with her about the complaint, adding, “Robbins’ resignation is in order.”

The funeral directors have taken many of their complaints to State Representative Jim Pitts, the Waxahachie Republican who last session helped write the legislation that now governs the Commission. Reggie McElhannon, Pitts’ chief of staff, said the legislator is concerned about Robbins’ relations with the funeral directors. “Because of the history of problems with the Commission and recent concerns that we had legislatively, I think everyone involved needs to be very conscientious and be very careful about comments that are made in public meetings,” McElhannon said.

Robbins insists that being attacked is “part of the job.” When asked if he could have been a bit more genteel in his handling of agency business, he responded, “I don’t play politics. I’m politically astute.” Astute or not, Robbins faces some tough times in the coming months. The case against S.C.I. will help determine the credibility of his agency, and also perhaps determine if it remains independent or becomes part of the Department of Health. Many funeral directors are hoping that the Funeral Commission remains independent, because they believe it will be more nimble than a big agency in dealing with their concerns.

But given all the plot twists of late, and the possibility that the future president of the United States will end up on the witness stand to talk about the funeral business, don’t be surprised if one of the smallest agencies in the state pops up in a ratings sweep.

Frequent Observer contributor Robert Bryce is a staff writer at the Austin Chronicle, where a version of this article first appeared. He can be contacted at [email protected].