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b HTE TEXAS server A JOURNAL OF FREE VOICES We will serve no group or party but will hew hard to the truth as we find it and the right as we see it. We are dedicated to the whole truth, to human values; above all interests, to the rights of humankind as the foundation of democracy; we will take orders from none but our own conscience, and never will we over look or misrepresent the truth to serve the interests of the powerful or cater to the ignoble in the human spirit. Writers are responsible for their own work, but not for anything they have not themselves written, and in publishing them we do not necessarily imply that we agree with them because this is a journal of free voices. SINCE 1954 Publisher: Ronnie Dugger Editor: Louis Dubose Associate Editor: Allan Freedman Copy Editor: Roxanne Bogucka Editorial Assistant: Brett Campbell Editorial Interns: Eva Llorelis, Stephen Merelman Washington Correspondent: Mary Anne Reilly Contributing Writers: Bill Adler, Betty Brink, Warren Burnett, Jo Clifton, John Henry Faulk, Terry FitzPatrick, Gregg Franzwa, Bill Helmer, James Harrington, Amy Johnson, Michael King, Mary Lenz, Dana Loy, Tom McClellan, Bryce Milligan, Greg Moses, Debbie Nathan, Gary Pomerantz, John Schwartz, Michael Ventura, Lawrence Walsh Editorial Advisory Board: Frances Barton, Austin; Elroy . Bode, Kerrville; Chandler Davidson, Houston; Dave Denison, Cambridge, Mass; Bob Eckhardt, Washington, D.C.; Sissy Farenthold, Houston; Ruperto Garcia, Austin; John Kenneth Galbraith, Cambridge, Mass.; Lawrence Goodwyn, DurhaM, N.C.; George Hendrick, Urbana, Ill.; Molly Ivins, Austin; Larry L. King, Washington, D.C.; Maury Maverick, Jr., San Antonio; Willie Morris, Oxford, Miss.; Kaye Northcott, Austin; James Presley, Texarkana; Susan Reid, Austin; Geoffrey Rips, Schmidt, Fredericksburg; Robert Sherrill, Tallahassee, Fla. Layout and Design: Lana Kaupp Contributing Photographers: Bill Albrecht, Vic Hinterlang, Alan Pogue. Contributing Artists: Eric Avery, Toni Ballenger, Richard Bartholomew, Jeff Danziger, Beth Epstein, Dan Hubig, Pat Johnson, Kevin Kreneck, Michael Krone, Carlos Lowry, Ben Sargent, Dan Thibodeau, Gail Woods. Managing Publisher: Cliff Olofson Subscription Manager: Stefan Wanstrom Special Projects Director: Bill Simmons Development Consultant: Frances ‘Barton SUBSCRIPTIONS: One year 527, two years $48, three years $69. Fulltime students $15 per year. Back issues $3 prepaid. Airmail, foreign, group, and bulk rates on request. Microfilm editions available from University Microfilms Intl., 300 N. Zeeb Road, Ann Arbor, MI 48106. Any current subscriber who finds the price a burden should say so at renewal time; no one need forgo reading the Observer simply because of the cost. 01990, is published biweekly except for a three-week interval Texas Observer Publishing Co., 307 West 7th Street, Austin, paid at Austin, Texas. POSTMASTER: Send address changes to THE TEXAS OBSERVER, P.O. Box 49019, Austin, Texas 78765 A Tribute to Leland As both a frequent reader of fine print and as an underpaid UT teaching assistant, I couldn’t help but notice, and then be excited by the fact, that subscription for fulltime students are running at less than your normal subscription rate. I would hate to give up reading the Observer, so thanks for the financial break! Thus my enclosure of a current fee bill along with the $15 check. Your Mickey Leland issue was a . wonderful tribute to a wonderful man… the type all too criminally missing from most of this country’s governmental elected offices. One small voice at UT thinks you’re great . . . keep it up! Tom Porcello Folklore Center UT-Austin Judicial Response Mr. James Harrington’s letter \(TO, 1/12/ concerning the drug-testing case entitled Jennings v. Minco Laboratories, Inc., panders to a popular misconception ‘ about courts: that the judgment of a court reflects merely the personal opinion of the judge or judges who gave it. This is true in a totalitarian state; it is not true in a free society under law. In such a society, a judgment results from and is controlled by rules of law that all judges are sworn to uphold and apply until the rules are changed by a public body authorized by law to change them. The Legislature, the Supreme Court of Texas, and the Court of Criminal Appeals are the only public bodies authorized to create new rules of law or change existing rules. No other public body, private organization, person, or court may do so. All must obey the existing rules of law when the case comes within the terms of any such rules. This includes, particularly, the judges of trial courts and the Courts of Appeals. While I did not write the opinion, I did sit on the Court of Appeals panel that affirmed Judge Joe Hart’s judgment in the Minco case. As a former legislator and Congressman, I cannot help being reminded of the judges who upheld and enforced the rules of law laid down in statutes they had voted against when they were in a legislative body. In Minco, there was no dispute about the facts of the case. There was only a controversy about what the rules of law required under that state of facts. In its review of the case, the Supreme Court of Texas determined that the trial court and the Court of Appeals did not misapply, misconstrue, or fail to apply any rule of law to Jennings’ prejudice. The Supreme Court declined to change any applicable rule of law, and refused to fashion a new rule for Jennings’ case to require a different result. In sum, at least 10 judges rejected Mr. Harrington’s advocacy and view concerning what the applicable rules of law were, or shOuld be, and what they required in the Minco case. There is a legal tradition that lawyers should be fearless in advocating their clients’ interests. Mr. Harrington met that requirement in the Minco case. But the tradition carries a restrictive corollary the arms wielded by a lawyer should be those of a warrior and not those of an assassin. Bob Gammage, Justice Texas Court of Appeals, Austin Gammage Defended I served as co-counsel with Jim Harrington in the trial of the Jennings v. Minco Technology Labs case. In my view Harrington’s criticism of Supreme Court Candidate Bob Gammage’s vote in the appellate decision in that case is exaggerIt is simply incorrect that Judge Gammage’s vote on the attorney’s fees issue was “utterly without precedent in Texas.” Texas appellate courts have never reversed a trial court’s award of attorneys fees under the Declaratory Judgment Act without a finding of an abuse of discretion. The federal standards the ACLU advocated appear in such Texas laws as the Deceptive Trade Practices Act, but not in the statute which applied in the drug testing challenge. The standard of review used by the Austin Court of Appeals in Jennings is supported by a long line of authority, and was reaffirmed in a 1985 Texas Supreme Court opinion written by Justice Gonzalez, who won reelection two years ago with Jim Harrington’s eloquent endorsement. The doctrine of employment-at-will is harsh and ill-advised, and the right of privacy, including the right not to be forced to undergo mandatory urinalysis, ought to outweigh an employer’s right to alter the terms of the employment relationship. But a 1986 State Supreme Court case reaffirmed the right of private employers to modify requirements for continued employment. The Court of Appeals was bound to apply this precedent, and it is unfair to single out Judge Gammage’s vote to uphold a decision supported by over one hundred years of Texas case law. When Continued on page 11 D ALO GU E 2 FEBRUARY 9, 1990