June 1, 2022 741 PM
TRAVIS COUNTY — Nine months after it was filed, a lawsuit brought by former Assistant District Attorney Jerry Phillips against 83rd District Attorney Ori White continues — 400 miles away from the DA’s jurisdiction, in Travis County. After a back-and-forth contesting the proper venue, a judge has determined the case will be heard in Central Texas, not in the tri-county area.
The suit, in which Phillips alleges he was wrongfully terminated for attempting to report improper and possibly illegal conduct in the office, was filed in Travis County under the Texas Whistleblower Act, which grants plaintiffs the option to file in the county of the state’s capitol or in the county in which the cause of action arises. A few months later, Presidio, Brewster, Pecos and Jeff Davis counties, then co-defendants in Phillip’s suit against White, filed for a transfer of venue to their respective counties, claiming a mandatory venue provision requires a suit against a county to be filed in that same county.
Phillips, meanwhile, had maintained that the case must remain in Travis County to guarantee an impartial venue. Phillips has now dropped the suit against the counties, and the case is set to proceed in Travis County.
Ori White was elected district attorney in 2020. He tapped Phillips to serve as assistant district attorney, handling cases across Presidio, Brewster and Jeff Davis counties. In an affidavit filed on August 27, 2021, Phillips alleges that he began witnessing — and documenting — “improper and possibly illegal” conduct less than a month after being sworn into office.
The first major allegation Phillips brought against White’s office concerned Michael Houston, the grandson of Brewster County Attorney Steve Houston. The younger Houston had been indicted by a grand jury with a second-degree felony aggravated assault charge. Former District Attorney Sandy Wilson — who lost her position to White — had relinquished the case to the attorney general, citing a conflict of interest.
According to Phillips, White was pressured by Houston to bring the case back into a local court for a better plea deal. White withdrew his motion to transfer venues when the AG’s office said it would oppose the motion, but court documents show correspondence between Phillips and White about White’s attempt to take back the case, with Phillips arguing it would look like White was “repaying political support.”
Other allegations against White’s office by Phillips include mishandling of civil forfeiture assets. White and Presidio County Attorney Rod Ponton had filed motions to seize the same $81,000 taken from a driver who failed to stop at a Border Patrol checkpoint, at which point the court consolidated the motions and gave it to White, who shared it between his office, the Presidio Police and Ponton’s office. Phillips has leveled the accusation of cronyism. He also claimed a female coworker in White’s office was forced to resign, alleging gender and age discrimination. Lastly, Phillips accused White of “habitually contacting unrepresented defendants who had been arrested for misdemeanors … prior to the defendants’ first court appearances.”
In court filings, White’s legal representation has said the DA denies all allegations leveled against him. White himself has called Phillips’ suit “false” and pledged to fight the litigation. Ponton, who is not a defendant in the suit, has shot down Phillips’ claims of cronyism, and countered that plea bargaining minor cases is proper and routine.
Phillips had originally planned to contact the Texas Rangers to launch an investigation after a local public defender’s client had received an alternate plea offer from Rod Ponton’s office before her first court appearance. Instead, he accidentally sent a write-up of his allegations meant for his personal file to Judge Roy Ferguson, who forwarded the file to White.
“You have so many resources available to come to the correct conclusion — your past employers, law school friends, and professors,” White wrote in an email to Phillips on May 25, 2021. “I am disappointed you came to the wrong conclusion.”
His sign-off set the tone for the events that followed: “Do not waste the Rangers’ time with this. He has real crimes to investigate.”
The “final straw” for Phillips, per an affidavit he filed, was when he filed a motion to dismiss a case he believed had been improperly indicted by a grand jury. He said he was questioned by the court as to whether he had contacted the complaining witness in the case, which he deemed inappropriate, arguing that fell under the purview of the DA’s office and not that of the court. When the court, under Judge Roy Ferguson, instructed him to contact the complaining witness, he declined to comply.
When White asked Phillips whether he had instructed the office’s victims’ coordinator to not comply with Ferguson’s order, Phillips said yes. White terminated him on May 28, 2021.
In October 2021, the four counties named in the lawsuit filed for a transfer of venue to a local district court. In response, on February 22, Phillip’s attorneys filed a motion to nonsuit the counties involved. “As a non-suit is effective from the moment the motion is filed, the defendant counties are no longer part of the present lawsuit,” the document states. “The Defendant Counties are no longer a part of [the] present lawsuit … making the Motions to Transfer Venue moot.”
In the battle-within-a-battle over the proper venue for the court proceedings, Phillips’ representatives repeatedly cited how difficult it would be to find an impartial jury in the tri-county area. “Even if the mandatory county venue provisions were applicable, Plaintiff would request that this Court maintain venue in Travis County, because if the present lawsuit were moved to the Defendant’s county of choice, local prejudice would require that the case be transferred back to Travis County,” Phillips’ attorneys Jodi Cole and Jaime Escuder wrote in a response dated April 27.
Lawyers, realtors, local politicians and other figures from across the tri-county signed affidavits asserting that, in their opinion, “so great a prejudice” against Phillips and in favor of White within the local court system would make impartial consideration impossible.
Phillips’ and White’s attorneys went back and forth for a few months over the legality of dropping the suit against the counties while retaining the suit against White. In a response dated April 26, White’s office raised a question that will likely hang over the case: is Phillips suing Ori White, the district attorney, or Ori White the individual?
On May 10, Catherine Mauzy of the 419th District Court addressed both concerns: “All parties stipulate … that the Plaintiff’s suit is against Ori White individually and as head of the District Attorney’s Office for the 83rd District of Texas,” she wrote. Because each of the counties originally named in the suit were non-suited, venue restrictions no longer applied. “Travis County is the appropriate venue.”
A similar question was posed before the Third Court of Appeals in the most high-profile recent use of the Texas Whistleblower statutes, in which four attorneys accused Texas Attorney General Ken Paxton of wide-ranging bribery and fraud. Paxton’s attorneys argued that because the whistleblowers reported acts “committed personally by the Attorney General,” and not the broader elected position of the Office of the Attorney General, the whistleblowers were not protected from termination of employment provisions under the law.
The Third Court of Appeals disagreed. “Indeed, Texas is an at-will state, in which employers can terminate employment for virtually any reason,” Chief Justice Darlene Byrne wrote in the conclusion to her opinion. “The Texas Whistleblower Act provides an exception to that general rule — a government employer may not fire an employee who makes a good-faith report of illegal conduct because he made the report.”
White’s legal team has argued that Phillips’ claims should be dismissed for a host of reasons, including sovereign immunity they say applies to White, and have filed a motion for summary judgment on the pleadings — more recently, White’s lawyers have asked that discovery be stayed pending a judge’s ruling on the motion for summary judgment.
Phillips’ legal team was pleased with the way their client’s case was progressing. “We are happy that this case is in Travis County,” said Jodi Cole, one of Phillip’s two attorneys. “We cut the [West Texas] counties loose — now we’re just waiting for the judge to rule on the motion for summary judgment.”
Representatives for 83rd District Attorney Ori White did not respond to a request for comment by press time.