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DATELINE TEXAS Texas to Teachers: Shut Up! BY BOB ELDER The important free-speech cases always seem to have a sinister edge: Nazis winning the right to march through Jewish neighborhoods of Skoki4 Illinois; the U.S. Supreme Court deciding that protester Gregory Lee Johnson had the right to burn the American flag on the steps of Dallas City Hall during the Republican National Convention; a teenage punk burning a cross on the lawn of a black family in nd now, the case of Robert Hoover vs. Texas Attorney General Dan Morales. Hoover is a marketing pro fessor at Texas A&M Uni versityCorpus Christi who signed on as a $200-an hour hired gun for Philip Morris Inc., in its defense of the tobacco lawsuit brought by Morales. Hoover wants to testify about the effects of cigarette advertising on brand choice, rather than as an inducement to take up smokingnot exactly earthshaking stuff. But Morales’ attempt to block Hoover from expert-witness work for Philip Morris kicked off a free-speech case being watched nationally, and one that has started to infringe on other professors, who are doing free work for causes that are a bit more pure than propping up tobacco companies. One casualty is Frank Skillern, a Texas Tech law professor who has stopped consulting for a Lubbock group fighting the start-up of an incinerator built in its neighborhood by a powerful local company, O’Hair Shutters. Skillern says he quit his free consulting because the Lubbock group opposed to the incinerator, All Neighbors United Inc., is suing a state agencythe Texas Natural Resource Conservation Commission, which granted O’Hair Shutters a permit to start burning wood waste. \(Wood waste includes In the case of Professor Hoover, Morales’ weapon was a little-noticed rider in the state appropriations act. The rider basically, an amendmentallows the state to withhold part or all of the salary of any state employee who is an expert witness or consultant in “litigation against the state.” As the legislative session ended in June, Morales’ office, taking note of the rider, started targeting professors scheduled to testify for cigarette manufacturers. Hoover, as an expert witness for Philip Morris, was scheduled to give a deposition July 10, but it was canceled the day before by an assistant attorney general. The next day, a lawyer for the A&M System told Hoover that the A.G.’s office had been “THE STATE HAS CREATED A SYSTEM WHERE ESSENTIALLY DAN MORALES DECIDES WHAT’S IN THE PUBLIC INTEREST, WHAT IS CONTRARY TO THE INTERESTS OF THE STATE OF TEXAS.” monitoring his involvement in the case. The A.G. had deemed his work “adverse to the interests of the state,” the A&M counsel wrote Hoover, and as a result, “should you decide to testify against the state, Texas A&M… may be obligated to withhold some or all of your salary.” Hoover sued Morales soon after. In early August, U.S. District Judge James Nowlin settled one part of the controversy: he halted enforcement of the rider so Hoover could work for Philip Morris in the tobacco litigation \(jury selection was scheduled to But Nowlin’s ruling is just a temporary injunction, and it applies only to Hoover. Morales is continuing the fight; he has appealed the ruling to the Fifth U.S. Circuit Court of Appeals: The rider was never intended to be such a broad weapon against academia. The author of the rider, State Representative Pete Gallego, a Democrat from Alpine, says he wrote it because state faculty members were testifying in medical malpractice suits against state teaching hospitals. “You had medical faculty from one state institution testifying against the next state med school,” Gallego said in federal court. Gallego said the biggest case in the statethe tobacco litigationdidn’t cross his mind as he drafted the rider. In an interview, Gallego acknowledged that the logic behind the rider is that the state is a monolith of sorts, an entity with no discrete interests or competing goals, or even different versions of the truth. “The only reason they’re being sought after is that they have a bully pulpit at state universities,” Gallego said of faculty expert witnesses. “All we’re saying is, if you want to be a hired gun, don’t shoot at the state.” Had the rider been in effect in high-profile cases of years past, it would have stopped prominent expert witnesses from testifying against the stateincluding state faculty who earned something of a reputation outside the groves of academia. For example, the rider would have prevented all-around Texas icon Barbara Jordan from testifying in 1991 in George Green’s famous whistleblower lawsuit against the state. Jordan testified for Green in his lawsuit against his former employer, the Texas Department of Human Services, which he accused of cutting corners on building safety and of violating state purchasing guidelines. In Green’s caseand in a host of other cases with even more egregious examples of wrongdoing by state agenciesthe state was judged to be wrong by juries, courts of appeals, and ultimately, by legislators who finally authorized payment to whistleblowers. The problem with the rider, says an Austin lawyer who does a lot of media work, is that it puts interpretation solely in the hands of one official: the attorney general. 14 THE TEXAS OBSERVER OCTOBER 10, 1997