As costly suit against DA Ori White continues, a question emerges: Who pays?

FAR WEST TEXAS — As an ongoing lawsuit against 83rd District Attorney Ori White lingers in appeals court, the question of who foots the bill has been brought to county officials, who recently found themselves faced with requests to help cover the top lawyer’s legal expenses.

White was sued in August 2021 by former Assistant District Attorney Jerry Phillips, who alleged that White had fired him in retaliation for attempting to report improper and possibly illegal conduct within the office. In the suit, which White has characterized as “false,” Phillips details instances of alleged corruption and cronyism, and claims he was wrongfully terminated for attempted whistleblowing.

Since August 2022, the suit has sat in the Third Court of Appeals in Austin, where it awaits a ruling on White’s appeal that Phillips’ suit, contrary to the trial court’s ruling, was not “timely filed” and that it should therefore be tossed altogether. The Texas Whistleblower Act stipulates that claims under the act must be filed within 90 days of termination; White claims that Phillips missed that deadline, having begun his 90-day count from the day he was removed from payroll and not from the day of his actual termination. 

In the meantime, expenses stemming from the case have mounted — White hired a private attorney, Steven C. Kiser of Midland-based law firm Lynch, Chappell & Alsup, to represent him. Though White would not confirm a figure, two county judges whose courts were approached by White characterized the current cost of legal services as nearing $100,000.

According to county officials, White’s office has approached the counties that fall within his district — Pecos, Presidio, Jeff Davis and Brewster counties — to ask that they help cover the cost.

White approached Pecos County (the DA’s office is headquartered within the county, in Fort Stockton) back in November of 2022 requesting that it pay the full amount — roughly $100,000 — said Pecos County Judge Joe Shuster. But the county had already forked over $40,000 to the cause and couldn’t afford to give any more.

Judge Shuster explained that the county had been receiving bills for the legal expenses over a period of time, and was sending payments to White’s legal representation under the impression that the county’s insurer would reimburse them. They were shocked to learn from their insurance company — after paying $40,000 in bills — that was not the case.

“We were already through the gate and got our foot caught in the gate,” said Shuster. “So we’d already spent the money. Instead of making things worse, we just said: we’re not paying any more toward your expenses, you need to call the other counties.”

White’s request has appeared on commissioners court agendas in Presidio, Jeff Davis and Brewster county courts over the last month. Most recently, on February 14, the matter was discussed in open session in the Brewster County Court, where County Judge Greg Henington advocated denying the request.

“It’s sort of a dilemma, but it’s not our dilemma,” said Henington. “So my recommendation to the court is we monitor it, but we are not contributing.”

The DA’s office had made another request, said Henington — that the office be permitted to take funds already contributed by the county for operating costs (in Brewster County’s case, $94,890) and use them instead to cover the legal fees. Henington recommended denying that request as well.

“The money we give them is used for the operations of the district attorney’s office,” said Henington. “It’s not to be used for anything else.”

Henington said the total cost of the legal expenses accrued by the DA’s office neared $100,000 — “and the suit’s not finished.” 

In both Presidio and Jeff Davis counties, the matter was discussed in executive session, out of the public eye. Jeff Davis County Judge Curtis Evans said he had not received an exact figure from the DA’s office, and due to a lack of information the court opted to take no action. If the district attorney wishes to revisit the matter, said Evans, it may appear on a future agenda.

Presidio County Judge Joe Portillo said his court had taken the same approach, due to a dearth of information. “I don’t think there’s going to be any rush to put it back on the agenda until we get some answers — and the same concerns that Brewster County had, and the same concerns that Pecos County has,” said Portillo. “Why? How much is it? What are the ramifications? What if another bill comes in? Do we just continue paying this indefinitely? One question begets another.”

Other county judges had a few more outstanding questions that left them hesitant to take further action. Henington stated in court that the DA was running up against the problem of accumulated legal fees because he had not been bonded or insured (White declined to address this question).

Judge Shuster said he felt the district attorney, as a state employee, should be represented by the state, not by a private attorney.

On this, White agreed. In response to a detailed request for comment, the DA replied by claiming that Texas Attorney General Ken Paxton was refusing to represent him, and that it is his belief that the AG’s office should ultimately foot the bill for his legal fees pertaining to his appeal.

“There is a statute in Texas law that requires the attorney general’s office to defend district attorneys in this type of situation. However, for reasons unknown, the attorney general’s office has refused to follow the law,” wrote White in an email. When asked to clarify the statute, White did not respond. Texas law does state that the attorney general is to defend the district attorney, in certain instances, in federal court (the suit against White is not in a federal court); another statute states that the attorney general “shall prosecute and defend all actions in which the state is interested before the Supreme Court and courts of appeals.”

The attorney general’s office did not return requests for comment by press time.

There is a recent precedent on the matter in a neighboring district. In September of last year, former El Paso District Attorney Yvonne Rosales — who had retained private legal counsel — appeared before El Paso County Commissioners Court, arguing the county should pay for her legal defense in a petition to remove her from office. Commissioners voted against providing the funds but opted to reconsider if the lawsuit against her failed. Rosales has since resigned. 

At the time, El Paso County Attorney Jo Anne Bernal told commissioners that while they were not legally obligated to pay for the fees, their decision should come down to whether doing so would serve a public purpose. Though Rosales requested the matter be discussed in executive session, Assistant County Attorney Erica Rosales Nigaglioni advised commissioners that to do so would violate the Texas Open Meetings Act.

White said he planned to return to the counties, this time requesting them to appeal to the AG’s office.

“My lawyers have been very patient, and I’m preparing to ask each commissioners court in the four counties to make a specific request to the attorney general himself that they step in and represent me. In my opinion, the attorney general’s office should also reimburse what has already been paid to the attorneys for the appeal.” 

A prosecutor with the attorney general’s office has given sworn testimony in the civil suit, stating that some of White’s conduct — specifically regarding attempts to take back a case from the AG’s office that the previous DA had relinquished due to a potential conflict of interest — prompted concern within the AG’s office. The prosecutor, Geoff Barr, had received permission from his supervisor to issue subpoenas and pursue a hearing on the matter, but White halted his attempts to take back the case before the situation escalated.