October 13, 2021 456 PM
83rd DISTRICT — In late August, former First Assistant District Attorney Jerry Phillips filed a civil lawsuit against District Attorney Ori White — in his personal and professional capacity — and against Presidio, Brewster, Jeff Davis and Pecos counties, claiming he was wrongly terminated from the DA’s office after attempting to report what he believed was improper, and possibly illegal, conduct within the office.
In newly filed court documents, White has given his first defense against the claims by Phillips, and three of the counties have made motions to move the suit out of a Travis County court and into courts within their own counties.
In the suit, Phillips makes sweeping allegations that he was terminated by White after whistleblowing, pointing to four incidents that had occurred or were occurring that he suspected were illegal, and that he’d raised concerns over, and a fifth incident that he believes was used as an excuse to fire him.
In the first claim in the suit, Phillips alleges Brewster County attorney Steve Houston pressured the newly sworn-in DA White to take back a pending felony criminal case against Houston’s grandson after the previous DA, Sandy Wilson, had turned it over to the Texas Attorney General’s Office for prosecution. Wilson believed she had a conflict of interest and was unable to fairly prosecute the grandson, Michael Houston, so she relinquished the case to the AG. In the suit, Phillips alleged that White and Houston wanted the case back in local jurisdiction to get a more lenient plea deal.
In an email dated to February 2021 that is included as an exhibit, Phillips warned White that taking the case back would “look like you are repaying political support” from Houston. Despite Phillips’ warnings, White entered a motion to take back the grandson’s criminal case — for a second-degree felony aggravated assault with a deadly weapon — from the AG’s office. The AG’s office told White they had “already put too much work into Michael Houston’s case to back out now, and that she would oppose his motion.” White withdrew the motion one day before the hearing, ending the saga.
Phillips alleged that Houston had called White prior to White’s decision to ask for the case back. The plaintiff said he told White he believed Houston may have violated the penal code through attempting to improperly influence White. Houston, who is not a defendant in the case, was out of office this week and unavailable to provide comment for this story.
The first assistant DA documented everything he remembered from the event and sent it to a friend. “I was very uncomfortable because I was put in a position that if I did not take some kind of action, I would become complicit in wrongdoing,” Phillips swore in an affidavit submitted in the lawsuit.
Plaintiff Phillips’ second allegation is that a civil asset forfeiture — where law enforcement can take property related to a crime — was mishandled. Presidio County Attorney Rod Ponton and DA Wilson both filed motions to seize the same $81,000 that law enforcement had taken when arresting a driver who failed to stop at a border checkpoint in November. Phillips alleged Ponton was wrong to file, and that “only the felony prosecutor of the criminal matter had this authority.” After White took office and took over Wilson’s filings, Phillips claimed the new DA told Ponton he would seize the money and then share it between his office, Ponton’s office and the Presidio Police.
On the day of the hearing for White and Ponton’s motions to take the cash, Phillips hastily logged onto Zoom for the proceedings when he found out that no one from the DA’s office would be attending. In a strange twist of events, the proceeding over the civil asset forfeiture was memorialized in the now famous “lawyer cat” incident, where Ponton arrived on screen with a cat-faced digital filter and struggled to remove it. Ultimately, the court consolidated Ponton and White’s motions, and gave the money over to White, who shared it between his office, the Presidio Police and Ponton’s office. Phillips called it cronyism.
In response to the claim of cronyism in the suit, Ponton told The Big Bend Sentinel, “The state can be represented by the district or county attorney,” and that he had filed for the money because at the time, Wilson hadn’t yet. A 30-day window was closing and all $81,000 would go back to the man who’d been arrested with it unless someone filed a motion to seize it.
Though Ponton is not a defendant in the suit, he weighed in on the case. “All these childish and wild allegations of cronyism and stuff like that is BS,” Ponton said. “There is not anything like that going on in Ori’s office.”
The third allegation of wrongdoing in the office was Phillips’ claim that another DA’s office employee, Leticia Carrillo, had been forced to resign, which he believed was on the basis of gender and age discrimination, and was done without clear explanation to Phillips.
The fourth and final allegation made by Phillips was that county attorneys within the 83rd District were “habitually contacting unrepresented defendants who had been arrested for misdemeanors, and that contact was prior to the defendants’ first court appearances.” Before admonishments, county attorneys would offer plea deals to the defendants. When Phillips brought it to White’s attention, the DA said that it was legal.
“I had been a professional prosecutor in several other counties and offices and contacting unrepresented defendants prior to court was absolutely forbidden because it was an ethical violation and probably against the law,” Phillips swore in the affidavit.
“It’s proper, it’s approved, it’s a normal routine practice to plea bargain minor cases,” Ponton said this week, agreeing with White. “For him to somehow say that if I or any other county attorney dismisses a case, that that somehow constitutes the felony of official oppression — They’re smoking something too strong to come up with that theory.”
Phillips planned to contact the Texas Rangers to investigate the fourth allegation. He wrote a memorialization of everything that had happened for his personal file, but accidentally sent it to Judge Roy Ferguson in May 2021, who forwarded it to White. White told Phillips via email not to pursue an investigation with the Rangers.
Phillips believes his firing was because he reported his belief of wrongdoing in these four incidents to DA White.
In his timeline of events, Phillips explained another incident, which he believed became the pretext for his firing, occurring after he raised issue with the first three allegations, and right before the fourth allegation came to pass.
In the course of his work, Phillips came across a case that he believed was not properly indicted by the grand jury, because they had marked the case as declined but then also signed an indictment for it. While details of the specific case are not provided in the lawsuit, Phillips filed to dismiss the case. The court, under Judge Ferguson, asked whether Phillips had contacted the case’s complaining witness and then ordered him to do so. Phillips believed it was beyond the judge’s statutory authority to ask him to do that, and he decided he would not comply with the order.
Though Phillips drafted a letter for White to sign and send to the AG asking for an opinion on the matter, White declined to send it. Phillips decided he would allow the judge to charge him for contempt of court, which would move the case under a different judge so he could argue it there.
When White called to ask if Phillips had instructed the office’s victims coordinator not to send the letter that Judge Ferguson had ordered him to send, he said yes. White terminated Phillips on May 28.
“Neither friendship nor political alliance should ever be the basis for a prosecutorial decision,” Phillips said in a written statement to the press. “It is absolutely wrong to fire an employee who objects to problematic official conduct, and/or states an intent to expose such problematic official conduct.”
“Our work is supposed to be ‘for the people,’ never for the personal gain of others,” Phillips wrote in his statement. “This lawsuit speaks for itself. ‘The only thing necessary for evil to triumph is for good men to do nothing.’ I am a good man, and I refuse to stand by and ‘do nothing,’” the plaintiff said.
To date, no criminal charges have been filed relating to the allegations of improper or illegal conduct made in the civil suit. In this case, Phillips’ attorney Jodi Cole does not have to prove that any illegal actions were taken, only that it appeared illegal and that there was enough activity to prove a good faith concern that there were activities that White should have been investigating, and potentially prosecuting. Phillips’ attorney must then make the argument that Phillips’ termination was because he blew the whistle on these actions.
Phillips claimed he was fired for whistleblowing and for refusing to commit illegal acts, adding that the firing breached his employment contract and that the DA had intentionally inflicted emotional distress on Phillips.
This week, White struck back at the allegations in the suit. “It’s a piece of litigation which I regard as false, so we’re just going to fight it,” the DA told The Big Bend Sentinel. Asked why he believed Phillips had filed the suit, White said, “He’s not a happy person,” and declined to comment further on the allegations.
In response to the suit, White filed an answer, saying that he had acted in good faith both personally and as DA, and that Phillips had “failed to initiate action under the requisite grievance or appeal procedures.”
The suit was filed under the Texas Whistleblowers Act, which says that if an employee is terminated within 90 days of reporting a violation of the law, there’s a legal presumption that that is what led to the termination. The Whistleblower Act also requires the suit be filed within 90 days after the violation occurred. Phillips was fired on May 28, and he filed his suit exactly 90 days later, on August 26.
The suit was filed in district court in Travis County, home of the state capital, since the Texas Whistleblowers Act allows plaintiffs to file there or in a district court of the county in which the cause of action arises.
Three of the counties named as defendants in the suit have filed to request the venue be moved to district court in the local counties. Brewster, Presidio and Jeff Davis counties’ attorney Eric Brittain argues that while the act allows the claim to be filed in Travis County, another state code on civil cases makes it mandatory for a suit against a county to be filed in that same county.
However, the local district judge may be a material witness in the case, and the counties where the cause of action arose are themselves defendants, which could cause conflict.On Wednesday, as The Big Bend Sentinel was going to press, a number of affidavits from both private citizens and elected officials were filed in support of the claim that there would be no fair and impartial trial if the venue was moved back into district court in Presidio, Brewster, Jeff Davis or Pecos counties. The Big Bend Sentinel will continue to follow the story.