against state agencies in federal courtsI’ve got to defend them, I’m their lawyer, the law says that. But these suits tie up an enormous number of people and resources. My pledge is to get our lawyers out there working with these agencies to make them aware of what the law requires of them. I say, let’s not be generating this type of litigation if we can avoid it. OBSERVER: Suppose, on behalf of an agency, you make your best case and you lose. Isn’t there an obligation on your part to advise that agency’s officials that it’s foolish to pursue the case, that they should comply? WHITE: Yes, I think that will be my advice if I feel that’s the case. At the same time, though, I think I have another obligation if a constitutional issue is involvedif, say, a lower court holds a state statute to be unconstitutional. I’m reluctant to let a district court decide the constitutionality of a Texas statute; I think I have an obligation to go to a court of appeals and get an opinionand then be done with it. OBSERVER: If it’s your best judgment that a position an agency’s officials insist on taking is a loser, and that it will end up costing your office a great deal of time and energy in a losing cause. what do you tell them? WHITE: I’d counsel with them just as I would a private client. I’d say, “Look here: our chances of success are nil; I don’t think we’ve got the law on our side or the facts on our side, and I urge you not to appeal the case.” I’d write them a letter saying so, and then if they persist and demand the appeal, I can always say, “I don’t have the resources to appeal this case and I authorize you to hire outside counsel if you feel it’s so important.” Then we don’t waste our time on a frivolous case. OBSERVER: Could we get back to your idea about working on state agencies’ compliance with the law before they’re sued? WHITE: I think as their lawyer, I have a special obligation to try to anticipate some legal problems for them. I hope I could keep them out of trouble, avoid law suits, and save a lot of money there. It doesn’t do much good for us to be in court on this Department of Corrections case [Ruiz v. EstelleObs., Sept. 22, 1978] at a cost of about $20,000 a week. It’s costing the state the time of six good lawyers to sit in Houston and defend a case that we shouldn’t be in a position to have to defend. My thinking on it is simply this: I don’t guess there’s any way we can agree with the plaintiffs on what should or shouldn’t be done on every aspect of this lawsuit, but there are some things I know we’re going to agree on. OBSERVER: Yes, well, when something like this goes on, when there are things that everyone concerned can agree on, why keep going into the courtroom and arguing? WHITE: Yes, that’s what I’m saying now. And that’s the reason I’ve asked the U.S. attorney general’s office to offer us a comprehensive settlement statement and let us review it. There are changes that have occurred in the system since the case was filed [in 1971]. All the problems aren’t corrected, I’m sure, but we are moving toward their correction. OBSERVER: Is this move on the state’s part going to delay the reopening of the trial [scheduled for April 2]? WHITE: No. It will not delay it at all. I talked to Drew Days [head of the U.S. Justice Department’s civil rights division, whose attorneys are arguing the plaintiffs’ case] earlier this month. He said they would begin to draft a settlement, and I said, “Look, we’re going to continue with the trial of the case.” I think we’ve got a good case, I think we’re not going to look like the ghoul or the villain. At the same time, there’s nothing you can do to prevent lawsuits from being filed, but you can prevent the obvious problems from recurring. OBSERVER: So you see an obligation to help state agencies avoid legal problems by getting them to obey the law? WHITE: Well, I’m trying to avoid defending cases where we’re probably wrong. The way I perceive this is: let’s make our clients aware of what the state of the law is and tell them, “Look, we’ve got to do certain things here, let’s go do them, let’s don’t wait to be told, let’s don’t wait to be enjoined, let’s don’t wait to be condemned, let’s just do what’s right, do what the law says we should do.” I think that’s the best advice and the least expensive and least troublesome approach. But it’s hard to do when your staff is continually playing catch-up. In other words, for example, these six lawyers are over there full-time at the Ruiz case. They can’t be over here advising somebody at the Texas Youth Council that he needs to do something, because they’re tied up. OBSERVER: Does the AG’s office have any role to play in actions that are pending nowespecially with city electionsawaiting Justice Department action under the federal Voting Rights Act? WHITE: Not any direct role, but I talked with Drew Days the other day on a related matter, and I am trying to work with him to see that we can get our submissions up there quickly enough to obviate the delays. OBSERVER: There have been several city council elections canceledor rather postponedthis spring. WHITE: Yes, and that’s not good. That’s not right. Here we are protecting the right to vote by denying people the right to vote, which makes no sense at all. The Voting Rights Act is a broad paint brush that doesn’t paint evenly in a state as diverse as Texas. OBSERVER: Do you still feel as strongly that we shouldn’t be subject to the act as you did when you were secretary of state? WHITE: Yes. Yes, I do. But that’s for the same basic philosophical reasons I had then, not because I’m against voting rights. I think my record of protecting the right to vote is as good as anybody’s in the state and I’m going to make sure it continues to be good. I just feel it was an affront to me, because I think my record shows we were doing the right thing. OBSERVER: You did seem to take it personally. WHITE: Yes, I did. But at the time, you know, I was secretary of state. Most of the advances we’ve made in voting rights for minority groups have resulted from court actions in Texas by Texas plaintiffs in Texas courtsfederal courts, but Texas courts. The Voting Rights Act has been some help in some places, but most of the advances you can point to for minorities here have been achieved here in our federal courts. OBSERVER: So what can the AG’s office do in these current cases? WHITE: I just intend to work with, intermediate with, the Justice Department when a city asks for help in getting approval of a change. I think the law’s settled, it’s clear, the fights are over. We’re going to obey the law, just as we did before the fights. It doesn’t do much good for us to be in court on this TDC case when there are some things I know we’re going to agree on. I’ve asked the U.S. attorney general’s office for a comprehensive settlement statement to review. 6 MARCH 30, 1979
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