CAUSE NO.
99-03487
ELIZA MAY § IN THE DISTRICT COURT OF
§
vs. §
§
TEXAS FUNERAL SERVICE §
COMMISSION, ROBERT L. WALTRIP §
TRAVIS COUNTY, TEXAS
SERVICE CORPORATION §
INTERNATIONAL, and SCI §
MANAGEMENT CORPORATION, and §
GOVERNOR GEORGE W. BUSH, in §
his official capacity as Governor of §
Texas, and Individually § 261ST JUDICIAL DISTRICT
PLAINTIFF'S
RESPONSE TO REQUEST FOR DISCLOSURE
BY
DEFENDANT GOVERNOR GEORGE W. BUSH
TO: Defendant, GOVERNOR GEORGE W. BUSH, by and through his
attorneys of record, Robert O’Keefe and Joseph Crawford, TEXAS ATTORNEY
GENERAL, Assistant Attorneys General, General Litigation Division, P.O. Box
12548, Capitol Station, Austin, Texas 78711-2548
Pursuant to Texas Rule of Civil
Procedure 194.3, Plaintiff, Eliza May (“May”) serves this Response to
Defendant, Governor George W. Bush’s (“Governor Bush”), Request for Disclosure,
and for such disclosure would respectfully respond as follows:
(a) the correct names of the parties to the lawsuit.
Response: The correct names of the parties are
as shown in the style of the case above.
(b) the name, address, and telephone number of any potential
parties.
Response: May has not determined that there
are other persons who should be joined as parties at present. However, persons who are nonparties, but who
appear to have been involved as co-conspirators with the parties named in the
Plaintiff's First Amended Original Petition, and who therefore could be joined
as parties, include Governor Bush’s former Chief of Staff, Joe Allbaugh, his
General Counsel Margaret Wilson, Senator John Whitmire, Johnnie B. Rogers, Leo
T. Metcalf, III , Robert G. Duncan, and Texas Attorney General John
Cornyn. Addresses for those persons are
as follows:
Joe Allbaugh Johnnie B.
Rogers
Office of the Governor 11003 Onion Creek Court
1100 San Jacinto Austin, Texas 78747
Austin, Texas 78701 512/282-5518
512/463-2000
Senator John Whitmire Leo
T. Metcalf, III
Capitol Extension SCI Management Corporation
Room 3E.6 1712 North Frazier, #117
Austin, Texas 78701 Conroe, Texas 77301
512/463-0115 409/756-3311
Robert G. Duncan Margaret
Wilson
Colonial
Services, Inc. Office
of the Governor
1801 East Red
River 1100 San Jacinto
Victoria, Texas
77901 Austin,
Texas 78701
512/463-2000 512/576-0043
John Cornyn
Texas Attorney General
209 West 14th Street
Price Daniel, Sr. Building, 8th Floor
Austin, Texas 78701
512/463-2191
May will supplement this response as more information
becomes available in discovery.
(c) the legal theories and, in general, the factual bases of
the responding party's claims or defenses (the responding party need not
marshal all evidence that may be offered at trial).
Response: May repeatedly reported, and
objected to the fact that in apparent violation of Texas law, SCI apparently
had two employees serving as Commissioners on the TFSC at the same time: Leo T. Metcalf (“Metcalf”), and Robert G.
Duncan (“Duncan”). Section 2(A)(6) of
Article 4582b provides: “No person shall be appointed to the commission who is
an officer or employee of a corporation or other business entity controlling or
operating, directly or indirectly, more than three funeral establishments, if
another commissioner is also an officer or employee of the same corporation or
business entity.” May reported, and
objected to, this improper conflict of interest and undue and improper
influence by and on behalf of SCI. May
(and other TFSC employees) repeatedly reported the improper involvement and
intervention of these two Commissioners in matters affected SCI.
May reported that in January 1998, TFSC staff found
evidence indicating that two entities owned by or affiliated with SCI were
performing embalming services without having proper licenses. Further, at about the same time, in the
course of a routine audit of “provisional licensee” case files, TFSC staff
learned that two persons who were purportedly provisional
licensees were performing embalming work for, or in connection with an
SCI affiliate that did not have proper licensure.
Under Texas law a provisional licensee is a person
“engaged in learning the practice of funeral directing and/or embalming under
the instruction, direction and personal supervision of a duly licensed funeral
director and/or embalmer of and in the State of Texas in accordance with the
[Tex. Rev. Civ. Stat. Ann. art. 4582b], and having been duly issued a
provisional license by [TFSC] . . . .” Tex. Rev. Civ. Stat. Ann. art. 4582b, §
1(E). The TFSC investigation indicated,
among other things, that, apparently in an attempt to increase profit and/or
decrease liability, SCI’s Sparkman-Crane Funeral Home in Dallas, Texas
(“Sparkman-Crane”), was allowing William G. Honeycutt (“Honeycutt”) to conduct
embalming services in the Sparkman-Crane on-site embalming facility without
proper licensing. Honeycutt, in turn, was supposedly involved in supervising
the provision licensees. The
provisional licensees in issue had reported that they were performing their
work at “Dallas Embalming Service,” but no such entity had an embalming
license.
Texas law defines “embalmer” as a person who “for
compensation disinfects or preserves a dead human body, entire [sic] or in part
by the use of chemical substances, fluids, or gases in the body, or by the
introduction of the same into the body by vascular or hypodermic injection, or
by direct application into the organs or cavities, or by any other method
intended to disinfect or preserve a dead human body, or restore body tissues
and structures.” Tex. Rev. Civ. Stat.
Ann. art. 4582b, § 1(D). The same
provision makes it illegal in Texas for anyone who is not a licensed embalmer
or a provisional licensee working under the supervision of a licensed embalmer
to engage in embalming services. “[T]o
ensure the maximum inhibition of pathogenic organisms in the dead human body,”
TFSC regulations prescribe certain “minimum standards of performance” required
of licensed embalmers in Texas. See
TFSC Regulations, § 203.16(a). Those
standards, for example, specify certain procedures to avoid pathogenic
contamination, including sterilization methods, destruction of contaminated
clothing, use of antiseptic fluids, body cavity treatment, and the use of
certain arterial fluids. Section
203.16(a)(1) provides generally that embalming “shall be performed only by
embalmers licensed by the commission, in properly equipped and licensed
establishments . . . .”
The TFSC staff determined that the two “provisional
licensees” in question were ineligible in January 1998 to participate in
scheduled “exit interviews,” which are another licensing requirement. Despite that TFSC staff determination, at
the instigation of Metcalf (an SCI employee) the TFSC Commissioners conducted
an illegal, unposted, closed meeting on January 28, 1998, in violation of the
Texas Open Meetings Act, to deliberate on the eligibility of the two
individuals in question. May objected
to and reported on the illegality of that meeting concerning SCI personnel.
On or about March 6, 1998, TFSC denied applications
for licenses sought by Honeycutt.
Honeycutt’s two applications were for licensure of commercial embalming
establishments, ostensibly to act as “Dallas/Fort Worth Mortuary Service,” but
to do so in the establishment preparation rooms of Sparkman-Crane in Dallas and
of Lucas Funeral Home (“Lucas”) in Hurst, Texas. The TFSC’s authorizing statute, Article 4582b, as interpreted by
TFSC’s in-house legal counsel and other TFSC staff, did not authorize licensure
of this type of commercial embalming establishment within an established,
licensed funeral home, and May reported on that matter.
On March 25, 1998, TFSC Commissioner Metcalf, the
employee of SCI who works or worked at SCI’s corporate headquarters in Houston,
Texas, called TFSC staff to complain about the denial of the license to
Honeycutt. Metcalf did so despite the
fact that he had an obvious conflict of interest that should have led him to
recuse himself from any investigation involving SCI or any other matter
involving SCI. TFSC staff reminded
Metcalf of the conflict of interest, but rather than recuse himself, Metcalf
then called May to complain about and question the Honeycutt licensure
denial. On the following day, Metcalf
continued to contact May to continue to advocate the licensure of
Honeycutt. On the same day, Johnnie B.
Rogers, legal counsel for SCI, called May and again questioned TFSC’s action in
denying the Honeycutt license applications.
May reported repeatedly on Commissioner Metcalf’s improper actions on
behalf of SCI.
Because of what appeared to be illegal embalming
practices connected with various SCI funeral homes around the state, on March
31, 1998 TFSC issued subpoenas to 28 funeral homes in Texas that appeared to be
involved in the improper arrangement, or that had received bodies embalmed by
SCI-affiliated embalmers that were not properly licensed. On or about April 3, 1998, immediately after
service of the subpoenas (by mail), Metcalf contacted TFSC staff to complain
about and challenge the issuance of the subpoenas. TFSC’s in-house legal counsel reminded Metcalf of the obvious
conflict of interest in his interjecting himself in an investigation involving
his employer, SCI. Commissioner
Metcalf, however, persisted in his demands and complaints about the investigation
of SCI. Even after the admonition from
TFSC’s in-house counsel, Metcalf immediately called May on the same day about
the same matters, continuing to participate in the matter in violation of the
conflict of interest prohibitions.
Again on the same day, Duncan called May to report that
SCI Chairman and CEO Robert Waltrip had called him, and was “very upset” over
the subpoenas and “was going to the Governor if he had to.” Duncan informed May that “for her own good,”
TFSC should not use any subpoena process, but instead should send investigators
to each of the 28 individual facilities to inspect the records on-site. Duncan knew that with only four inspectors
on staff – and a total TFSC staff of only ten employees – the suggestion of
such a time-consuming, staff-intensive procedure, simply to obtain records, was
highly impractical. To maintain the
pressure on May and the TFSC, on the same day, James Shelger, SCI’s General
Counsel, and other SCI lawyers representing SCI, also called TFSC staff to
question and complain about the issuance of the subpoenas.
Then, on April 7, 1998, the TFSC received a letter
from Johnnie B. Rogers, one of SCI’s lawyers, stating that SCI affiliated
funeral homes refused to comply with the subpoenas, and contended that the TFSC
lacked authority to issue the subpoenas.
TFSC’s authorizing statute specifically provides that “[t]he commission
may issue . . . subpoenas and subpoenas duces tecum.” Tex. Rev. Civ. Stat. Ann. art 4582b, § 2(L).) Rogers echoed Duncan’s demand that the TFSC
should be required to send investigators to each of the 28 locations to inspect
the records of the funeral homes on-site.
Rogers, of course, also knew that with only 4 investigators, such
on-site inspections of 28 facilities were not feasible for the TFSC without
substantial delay. The SCI entities
refused to comply fully with the subpoenas, as reported repeatedly by May.
On April 8, 1998, May received a threat from Josh
Kimball, one of the two SCI-affiliated provisional licenses whose supervision
the TFSC staff originally questioned.
Kimball called and complained about the investigation and demanded
information about the subpoenas that TFSC has issued. He then said: “I am going to kill all of you.” May reported the threat from the SCI
provisional licensee to TFSC Chairman, Charles McNeil, and to the Austin Police
Department. Such conduct violates Texas
law, including Texas Penal Code, § 36.03(a) – “A person commits an offense if
by means of coercion he: (1) influences or attempts to influence a public
servant in a specific exercise of his official power or a specific performance
of his official duty or influences or attempts to influence a public servant to
violate the public servant’s known legal duty . . . ;” Texas Penal Code, § 36.06(a) – “A person
commits an offense if he intentionally or knowingly harms or threatens to harm
another by an unlawful act: (1) in retaliation for or on account of the service
or status of another as a: (A) public servant . . . ; or (B) person who has
reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a: (A) public servant . . . ;
or (B) person who has reported or who the actor knows intends to report the
occurrence of a crime.”
Although SCI and its affiliated funeral homes
responded to the TFSC subpoenas with refusal, hostility, obstructionism, and
threats, each of the non-SCI entities that received subpoenas voluntarily
complied with the subpoenas and followed the law.
On April 10, 1998, in response to the improper demands
and law violations of SCI, Metcalf, Duncan and Rogers (after May complained of
the improper influence on and intervention in the TFSC investigation), TFSC
sent out two teams of inspectors to try to inspect the funeral home records
on-site at two funeral homes, Sparkman-Crane and Lucas. When the inspectors arrived, they presented
the funeral homes with a letter requesting the same documents as were listed in
the subpoena. Initially the funeral
homes refused to permit the investigators to inspect the records. That also violated Texas law including,
Article 4582b, § 2(L) – “The commission may issue, or delegate to the executive
director the power to issue, subpoenas and subpoenas duces tecum.”; § 4D(1)(b)
– “Failure by any person associated with the funeral establishment . . . to
comply with this Act or a rule adopted under this Act.”; and 22
Tex. Admin. code § 201.7.(b) – “The executive director shall have the
power to issue subpoenas and subpoena duces tecum to compel . . . the
production of books, records, and documents.”
May reported these violation as well.
Eventually the inspector team at the Sparkman-Crane funeral home
obtained production of the items that were on-site that were responsive to the
subpoena; however, it turned out that most of the documents responsive to the
subpoena categories were not on site, but rather were in SCI’s Houston
headquarters. Lucas was even more
obstructionist and hostile, and further violated the law, in refusing to
produce any documents until police arrived at the scene.
By April 11, 1998, Metcalf, Rogers and Duncan had
called TFSC Chairman McNeil to complain about the TFSC subpoenas, the on-site
inspections, and the ongoing investigation.
On April 13, 1998, Robert Waltrip called TFSC Chairman McNeil
complaining abut the investigation, the subpoenas, and the on-site visits. Waltrip threatened to sue TFSC and
improperly and illegally threatened to have the TFSC abolished by the Texas
Legislature. These actions violated
laws, including Texas Penal Code, § 36.04(a) – “A person commits an offense if
he privately addresses a representation, entreaty, argument, or other
communication to any public servant who exercises or will exercise official
discretion in an adjudicatory proceeding with an intent to influence the outcome
of the proceeding on the basis of considerations other than those authorized by
law;” Texas Penal Code, § 36.03(a) – “A
person commits an offense if by means of coercion he: (1) influences or
attempts to influence a public servant in a specific exercise of his official
power or a specific performance of his official duty or influences or attempts
to influence a public servant to violate the public servant’s known legal duty
. . . ;” Texas Penal Code, § 36.06(a) –
“A person commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act: (1) in retaliation for or on
account of the service or status of another as a: (A) public servant . . . ; or
(B) person who has reported or who the actor knows intends to report the
occurrence of a crime; or (2) to prevent or delay the service of another as a:
(A) public servant . . . ; or (B) person who has reported or who the actor
knows intends to report the occurrence of a crime.”
On April 14, 1998 Waltrip called May to again complain
to her about TFSC’s issuance of subpoenas and the on-site visits. In that conversation Waltrip threatened to
“do what [he] had to do.” Immediately
following the conversation with May, Waltrip again called Chairman McNeil, and
stated that he was going to file a complaint against TFSC the next day “and
take it all the way to the Governor’s office.”
The next day, on April 15, 1998, apparently in an
attempt to distract attention away from SCI’s own apparent violations of the
law, Waltrip, accompanied by his counsel, Rogers, appeared at May’s office with
his written “complaint” about the TFSC investigation. The last page of the “complaint” indicated that Waltrip had sent,
or intended to send a copy of the complaint to Governor Bush. (On April 28, 1998, Waltrip provided
supplemental materials with respect to his “complaint” and again indicated that
he provided a copy to Governor Bush.)
In fact, apparently Waltrip and Rogers hand-delivered a copy of the
“complaint” to Governor Bush and/or members of his staff, and Waltrip and/or
Rogers spoke to Governor Bush.
There then began a campaign of improper political
pressure and intimidation and interference by the Governor of Texas and his
staff, acting for the benefit of SCI and Waltrip, for the purpose of subverting
Texas law and impeding, undermining, and halting the TFSC investigation of SCI
affiliates. May repeatedly reported and
complained of the illegal and improper pressure and conspiracy, and the efforts
of the Governor and his staff to promote, assist, and aid SCI in attempting to
impede and subvert the TFSC investigation of SCI. The Governor of Texas and his staff lack statutory and
constitutional authority to intervene in an ongoing TFSC investigation, yet
that is what they did.
Approximately forty-five minutes after Waltrip and
Rogers left May’s office, she received a phone call from the office of Governor
Bush, specifically from Joe Allbaugh, who was then Chief of Staff to Governor
Bush. While May was unable to accept
Allbaugh’s call when it came into the TFSC office, she returned Allbaugh’s
call, but was told he was not available.
Chairman McNeil also received a phone call from someone else in Governor
Bush’s office: Polly Sowell, from the Governor’s appointments office. Sowell asked McNeil about the investigation,
including the purpose and nature of the investigation. At McNeil’s direction, May called Sowell and
explained the general nature of the investigation. At the same time, May reported to Sowell the conflict of interest
violations of the SCI employees who were commissioners on TFSC.
At about the same time, McNeil informed May that SCI
had sent Waltrip’s “complaint” to all of the TFSC commissioners to increase
pressure with respect to the investigation at issue. McNeil also told May that Governor Bush’s office had instructed
him to agree to SCI’s proposal for the TFSC to conduct an investigation of the
TFSC staff involved in the on-site inspections of the SCI-affiliated funeral
homes. Again, such an “instruction” was
an illegal demand and illegal intervention of the Governor into the ongoing
TFSC investigation of SCI. It also
reflects an illegal conspiracy among the Governor, his staff, SCI, Waltrip, and
SCI’s representatives, and an improper and illegal effort by the Governor and
his staff to promote or assist the commission of an offense, in attempting to
impede and halt the TFSC investigation, and to cover up the offenses by SCI and
Waltrip.
In the days following April 10, Metcalf and Duncan
contacted all or most of the TFSC Commissioners to follow up on and reiterate
Metcalf’s earlier complaints about the TFSC staff’s alleged conduct during the
subject investigation. Moreover,
apparently following up on Waltrip’s demand that instead of investigating SCI,
TFSC should investigate its own staff, Duncan and Metcalf apparently contacted
the other TFSC Commissioners in violation of the Open Meetings Act, and of
course in violation of the conflict of interest law, in attempts to convince
the commissioners that the investigation should focus on TFSC staff instead of
the alleged violations of law by SCI and it funeral home affiliates.
During this same time period, and presumably at the
urging of Waltrip and/or SCI, various members of the Texas Legislature began
calling or writing letters to the TFSC Commissioners and/or to May echoing
Waltrip’s and SCI’s heavy-handed efforts to shift the focus of the
investigation from SCI’s violations of the law to the TFSC staff. All of the legislators who inquired about
the investigation were recipients of SCI campaign contributions. A series of nearly identical letters,
apparently authored initially by SCI or its representative(s), deluged the
Commissioners, to apply yet more crass political pressure and intimidation.
Thus, while the SCI-PAC was doling out political
contributions, the political pressure to investigate TFSC staff, rather than
SCI’s funeral homes, became intense.
This was part of the illegal conspiracy involving, among others, SCI,
Waltrip, and the Governor and his staff, to try to impede or halt the TFSC
investigation of SCI.
On May 7, 1998, May made a report at a regularly
scheduled TFSC Commission meeting concerning the status of the investigation,
various apparent violations of the law by SCI and by certain Commissioners, the
pressure by SCI, and the “complaint” lodged by Waltrip and SCI against
TFSC. In the course of her report, May
reported the apparent violations of the conflict of interest and other laws by
Metcalf and Duncan, including Metcalf’s obvious conflict in his position as
Chair of TFSC Complaint Review Committee, Metcalf’s and Duncan’s multiple calls
and other intervention attempting to influence the TFSC investigations and
inspections of SCI affiliated funeral homes, and Metcalf’s calls and contacts
to exert pressure with respect to the SCI investigation. In that same report, May also referred to
the illegal threats and attempted intimidation and coercion by Waltrip and SCI
to prevent the TFSC staff from performing their duties under the law. May further reported the January 1998
violation of the Texas Open Meetings Act by the Commissioners themselves, when
they conducted the unposted, closed meeting concerning the SCI provisional
licensees. May also reported the
underlying illegality involved in the SCI affiliated funeral homes that
operated without proper licenses and thus performed illegal embalming and the
accompanying improper supervision of the provisional licensees in question –
practices that Metcalf and Duncan had attempted to defend and shield. May also reported that Waltrip had
improperly called upon the Commissioners to terminate the employment of the
entire TFSC staff, and Waltrip’s general efforts to obstruct the investigation
of SCI affiliated funeral homes and to threaten the TFSC employees. At the same May 1998 meeting at which May
provided this report, McNeil stated the he had spoken with “members” of
Governor Bush’s office, and that as a result of that conversation, his
directive now was to grant Waltrip and/or SCI’s request for an investigation of
TFSC staff. Thus, McNeil, in effect,
admitted that the Governor and his staff had
intervened and were taking over direction of the TFSC with respect to
certain issues arising from the TFSC investigation of SCI.
Metcalf asserted that as chairman of the Commission’s
Complaint Review Committee, he recused himself when an accusation arose
involving an SCI affiliated funeral home.
Metcalf then confessed that he had “phoned the Commission, as chair of
the Complaint Review Committee, to ask why the agency was going about this [SCI
investigation] in such a manner in which the Commission had never done
before.” Metcalf further stated that he
“has every right to find out why the agency is conducting an investigation like
never conducted before.”
On May 11, 1998 – four days after that Commission
meeting – Senator John Whitmire of Houston called May, using a threatening and
intimidating tone. Whitmire demanded
that May report to his office at 8:00 a.m. the next morning day to justify the
TFSC’s position with respect to the investigation of SCI affiliated funeral
homes, and to explain the report she had given at the May 7, 1998 TFSC
meeting. Whitmire also indicated that
SCI intended to sue the TFSC. Whitmire
was the recipient of a substantial amount of campaign contributions from
SCI. What Whitmire did not state at the
time was that he worked for, or was of counsel to, the law firm that
represented SCI. Whitmire then
undertook his own heavy-handed, intimidating efforts to back off May and TFSC
from the SCI investigation. Whitmire,
then, also joined the conspiracy to impede and interfere with the TFSC
investigation and May’s performance of her official duties.
On May 12, 1998, as demanded, May reported to Senator
Whitmire’s office, accompanied by the TFSC legal counsel. In his office, Senator Whitmire and two
aides confronted May and proceeded to interrogate her in a hostile, abusive
fashion concerning her investigation of SCI affiliated funeral homes. One of the senator’s aides asked “Don’t you
realize who Waltrip is?” They also
attacked McNeil as a “competitor” of SCI, and questioned whether that was the
motive for the SCI investigation.
Whitmire and his aides also indicated concern that the investigation
could hurt SCI’s stock prices.
Collectively, Whitmire and his staff attacked May and the TFSC for the
investigation of SCI affiliated funeral homes, for the issuance of the
subpoenas, and for the on-site inspection.
Whitmire, et al.’s approach was prosecutorial, brow-beating, harassing,
and pressuring. May reported the
apparent conflict of interest violations of the law by Duncan and Metcalf, but
Whitmire dismissed those matters completely, indicating that he was
uninterested in any such violations and did not want to hear about them. Whitmire also stated that he intended to
demand that May attend another meeting the following week, this time with
Waltrip present, to try to “put an end to the matter.” Whitmire indeed scheduled another meeting
for 8:00 a.m. May 18, 1998, apparently for the purpose of further influencing
and impeding the ongoing TFSC investigation.
May reported these events and violations to the Texas
Attorney General’s office and explained the ongoing interference and pressure
exerted upon her and the TFSC with regard to this investigation. McNeil and the TFSC’s in-house legal counsel
accompanied May to the second meeting in Whitmire’s office. When they arrived at about 7:45 a.m.,
Whitmire was not present, but his staff directed May and McNeil immediately to
proceed to the office of Governor Bush.
May, McNeil, and TFSC’s counsel proceeded into the Governor’s
office. Shortly after 8:00 a.m.,
Whitmire emerged from the office of Bush’s Chief of Staff, Allbaugh, where the
two had obviously been meeting.
Whitmire then escorted May, McNeil, and TFSC’s counsel into Allbaugh’s
office. Whitmire refused to allow a
court reported hired by the TFSC to record the meeting to enter the office
where the discussions would be held.
Already present in the office were: Governor Bush’s General Counsel,
Margaret Wilson; SCI’s counsel, Johnnie B. Rogers, SCI’s lobbyist, Johnnie B.
Rogers, Jr.; and Waltrip. While
Allbaugh began the meeting, the floor was given to Whitmire, who, assisted by
Johnnie B. Rogers, essentially gave a repeat performance of the earlier
inquisitorial attack against TFSC and May.
The Waltrip group also attacked McNeil as a “competitor” of SCI, and
questioned whether that was the motive for the SCI investigation. The meeting ended with Allbaugh, in a
hostile, peremptory tone, demanding that TFSC staff deliver to him by 1:00 p.m.
that afternoon a letter stating exactly what documents TFSC staff required to
close the SCI investigation. Thus, once
again, the Governor, through his staff, and those members of his staff,
directly intervened in the TFSC investigation of SCI, gave improper and illegal
directions to TFSC and May, and generally acted to further the purposes of the
conspiracy.
Following this remarkable meeting, May again reported
and complained about the continuing interference, pressure, harassment, and
violations, with respect to the ongoing TFSC investigation. Despite the obvious wrongful exertion of
influence, May and the TFSC did indeed deliver a letter to Allbaugh with respect
to the investigation on or before the deadline established by Allbaugh.
Shortly after that meeting, Governor Bush’s General
Counsel Margaret Wilson called May.
Wilson told May that she was “under a lot of pressure” to bring this
matter to a conclusion or else Governor Bush would “take the investigation away
from” the TFSC. Thus, once again, the
Governor and his staff, improperly intervened in the investigation and
threatened to do what the Governor had no legal right or statutory or
constitutional basis to do, and did so for the personal and financial benefit
of his and his family’s longtime friend, Waltrip, and Waltrip’s company,
SCI.
Later, on approximately June 3, 1998, the TFSC finally
received some additional information responsive to the subpoenas that TFSC had
issued two moths earlier. Instead of
SCI delivering the information, however, Whitmire’s staff delivered the
information. Moreover, the additional
information still proved to be an inadequate and incomplete response to the
subpoenas.
On August 3, 1998, the Complaint Review Committee
(CRC) of the TFSC held a meeting, in part to consider the TFSC staff’s report
on the status of the investigation of the SCI licensing issues. Metcalf did not attend. Based upon the findings of the CRC, on
August 7, 1998, the TFSC issued letters indicating the violations found, and
the penalties assessed against
more than twenty SCI-affiliated funeral homes. May and TFSC staff reported on a multitude
of apparent violations by SCI and its affiliates. Those violations included the
following:
1. “Professional Morticians of Fort
Worth/Dallas,” through its FDIC and employees and/or agents, operated as a
commercial embalmer since September 30, 1997, without a commercial embalmers
establishment license in violation of Section 4(C), Article 4582b, and thereby
violated Section 4(C)(1)(a), Article 4582b.
2. “Professional Morticians of Fort
Worth,” through its FDIC and employees and/or agents, permitted provisional
licensees to embalm without personal supervision in violation of Sections
3(D)(1), 3(H)(20), 3(H)(26), and 3(H)(27), Article 4682b, and Commission Rule
203.6, and thereby violated Section 4(D)(1)(b), Article 4582b.
3. “Dallas/Fort Worth Mortuary
Service,” through its employees and/or agents, operated as a commercial
embalmer from approximately January 1, 1998, through April 10, 1998, without a
commercial embalmers establishment license in violation of Section 4(C),
Article 4582b, and thereby violated Section 4(D)(1)(a), Article 4582b.
4. “Dallas/Fort Worth Mortuary
Service,” through its employees and/or agents, permitted provisional licensees
to embalm without personal supervision in violation of Sections 3(D)(1),
3(H)(20), 3(H)(26), and 3(H)(27), Article 4582b, and Commission Rule 203.6, and
thereby violated Section 4(D)(1)(b), Article 4582b.
5. “Dallas/Fort Worth Mortuary
Service,” through its employees and /or agents, operated as a commercial
embalmer from approximately January 1, 1998, through April 10, 1998, without a
commercial embalmers establishment license in violation of Section 4(C), Article
4582b, and thereby violated Section 4(D)(1)(a), Article 4582b.
6. “Dallas Embalming Service,” through its
employees and/or agents, operated as a commercial embalmer from approximately
January 29, 1997, through December 31, 1997, (and into January l998) without a
commercial embalmers establishment license in violation of Section 4(C),
Article 4582b, and thereby violated Section 4(D)(1)(a), Article 4582b.
7. “Dallas Embalming Service,” through its
employees and/or agents, permitted provisional licensees to embalm without
personal supervision in violation of Sections 3(D)(1), 3(H)(20), 3(H)(26), and
3(H)(27), Article 4582b, and Commission Rule 203.6, and thereby violated
Section 4(D)(1)(b), Article 4582b.
8. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, used the services of
“Professional Morticians of Fort Worth/Dallas,” which violated Section 4(C),
Article 4582b by operating as a commercial embalmer since September 30, 1997,
without a commercial embalmers establishment license, and thereby violated
Section 4(D)(1)(b), Article 4582b.
9. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, used the services of “Dallas/Fort
Worth Mortuary Service,” which violated Section 4(C), Article 4582b by
operating from approximately January 1, 1998, through April 10, 1998, as a
commercial embalmer without a commercial embalmers establishment license, and
thereby violated Section 4(D)(1)(b), Article 4582b.
10. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, used the services of “Lucas Hurst
Embalming Division,” which violated Section 4(C), Article 4582b by operating as
a commercial embalmer from approximately April 10, 1998 through at least
August, 1998, without a commercial embalmers establishment license, and thereby
violated Section 4(D)(1)(b), Article 4582b.
11. Alternatively, “Lucas Funeral Home”
(FH # 00662), through its FDIC and employees and/or agents, operated under the
name “Lucas Hurst Embalming Division” in violation of Commission Rule 203.29
and Section 3(H)(26), Article 4582b, and thereby violated Section 4(D)(1)(b),
Article 4582b.
12. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, committed a deceptive act or
practice in not advising consumers that the price being charged. for embalming
is not the same as the cost to the funeral provider, in violation of Section
3(H)(26), Article 4582b, and Commission Rule 203.8(Q(l), and thereby violated
Section 4(D)(1)(b), Article 4582b.
13. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, embalmed without proper authority
a dead human body, in violation of Section 3(H)(11A), Article 4582b, by failing
to disclose to consumers when oral authorization to embalm was obtained that
embalming services were to be performed at another facility or by a third
party, in violation of Section 4A, Article 4582b, and Commission Rule
203.22(d), and thereby violated Section 4(D)(1)(b), Article 4582b.
14. “Lucas Funeral Home” (FH # 00662),
through its FDIC and employees and/or agents, engaged in unprofessional conduct
by failing to comply with a Subpoena Duces Tecum issued by the Commission
pursuant to Section 2(L) and Section 6(D), Article 4582b, and Commission Rule
201.7(b), thereby obstructing the Commission and its employees in the lawful
performance of their duties in enforcing Article 4582b and Commission rules,
and thereby violated Section 4(D)(1)(b), Article 4582b.
15. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of “Dallas
Embalming Service,” which violated Section 4(C), Article 4582b by operating as
a commercial embalmer from approximately January 29, 1997, through December 31,
1997, (and through January 1998) without a commercial embalmers establishment
license, and thereby violated Section 4(D)(1)(b), Article 4582b.
16. Alternatively, “Sparkman-Crane
Funeral Home,” through its FDIC and employees and/or agents, operated under the
name “Dallas Embalming Service” in violation of Commission Rule 203.29 and
Section 3(H)(26), Article 4582b, and thereby violated Section 4(D)(1)(b),
Article 4582b.
17. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of “Dallas
Embalming Service,” which permitted provisional licensees to embalm without
personal supervision in violation of Sections 3(D)(1), 3(H)(20), 3(H)(26), and
3(H)(27), Article 4582b, and Commission Rule 203.6, and thereby violated
Section 4(D)(1)(b), Article 4582b.
18. Alternatively, “Sparkman-Crane
Funeral Home,” though its FDIC and employees and/or agents, permitted
provisional licensees to embalm without personal supervision in violation of
Sections 3(D)(1), 3(H)(20), 3(H)(26), and 3(H)(27), Article 4582b, and
Commission Rule 203.6, and thereby violated Section 4(D)(1)(b), Article 4582b.
19. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of
“Dallas/Forth Worth Mortuary Service,” which violated Section 4(C), Article
4582b by operating as a commercial embalmer from approximately January 1, 1998,
through April 10, 1998, without a commercial embalmers establishment license,
and thereby violated Section 4(D)(1)(b), Article 4582b.
20. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of “Dallas/Fort
Worth Mortuary Service,” which permitted provisional licensees to embalm
without personal supervision in violation of Sections 3(D)(1), 3(H)(20),
3(H)(26), and 3(H)(27), Article 4582b, and Commission Rule 203.6, and thereby
violated Section 4(D)(1)(b), Article 4582b.
21. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of
“Professional Morticians of Fort Worth,” which permitted provisional licensees
to embalm without personal supervision in violation of Sections 3(D)(1),
3(H)(20), 3(H)(26), and 3(H)(27), Article 4582b, and Commission Rule 203.6, and
thereby violated Section 4(D)(1)(b), Article 4582b.
22. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, used the services of
“Sparkman-Crane Embalming Division,” which violated Section 4(C), Article 4582b
by operating as a commercial embalmer from approximately April 10, 1998,
through at least August, 1998, without a commercial embalmers establishment
license, and thereby violated Section 4(D)(1)(b) , Article 4582b.
23. Alternatively, “Sparkman-Crane
Funeral Home,” through its FDIC and employees and/or agents, operated under the
name “Sparkman-Crane Embalming Division” in violation of Commission Rule 203.29
and Section 3(H)(26), Article 4582b, and thereby violated Section 4(D)(1)(b),
Article 4582b.
24. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, committed a deceptive act or
practice in not advising consumers that the price being charged for embalming
is not the same as the cost to the funeral provider, in violation of Section
3(H)(26), Article 4582b, and Commission Rule 203.8(0(1), and thereby violated
Section 4(D)(1)(b), Article 4582b.
25. “Sparkman-Crane Funeral Home,”
through its FDIC and employees and/or agents, embalmed without proper authority
a dead human body, in violation of Section 3(H)(11A), Article 4582b, by failing
to disclose to consumers when oral authorization to embalm was obtained that
embalming services were to be performed at another facility or by a third
party, in violation of Section 4A, Article 4582b, and Commission Rule
203.22(d), and thereby violated Section 4(D)(1)(b), Article 4582b.
26. “Sparkman-Crane Funeral Home,” through
its FDIC and employees and/or agents, engaged in unprofessional conduct by
failing to comply with a Subpoena Duces Tecum issued by the Commission pursuant
to Section 2(L) and Section 6(D), Article 4582b, and Commission Rule 201.7(b),
thereby obstructing the Commission and its employees in the lawful performance
of their duties in enforcing Article 4582b and Commission rules, and thereby
violated Section 4(D)(1)(b), Article 4582b.
27. Licensee Robert Gazaille, as FDIC of
“Professional Morticians Service of Fort Worth/Dallas,” permitted the business
to operate as a commercial embalmer without a commercial embalmers
establishment license from September 30, 1997, in violation of Section 4(C),
Article 4582b, and thereby violated Section 4(E) and Section 3(H)(26), Article
4582b.
28. Licensee Doyle Ooten, as FDIC of
“Professional Morticians Service of Fort Worth,” permitted provisional
licensees to embalm without personal supervision in violation of Sections
3(D)(1), 3(H)(20), 3(H)(26), and 3(H)(27), Article 4582b, and Commission Rule
203.6, and thereby violated Section 4(E) and Sections 3(H)(20), 3(H)(26), and
3(H)(27), Article 4582b.
29. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00662), used the services of “Professional
Morticians of Fort Worth/Dallas,” which violated Section 4(C), Article 4582b by
operating since September 30, 1997, as a commercial embalmer without a
commercial embalmers establishment license, and thereby violated Section 4(E)
and Section 3(H)(26), Article 4582b.
30. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00400), used the services of “Professional
Morticians of Fort Worth/Dallas,” which violated Section 4(C), Article 4582b by
operating since September 30, 1997, as a commercial embalmer without a
commercial embalmers establishment license, and thereby violated Section 4(E)
and Section 3(H)(26), Article 4582b.
31. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 01015), used the services of “Professional
Morticians of Fort Worth/Dallas,” which violated Section 4(C), Article 4582b by
operating since September 30, 1997, as a commercial embalmer without a
commercial embalmers establishment license, and thereby violated Section 4(E)
and Section 3(H)(26), Article 4582b.
32. Licensee William G. Honeycutt owned
and operated “Dallas/Fort Worth Mortuary Service” as a commercial embalmer
without a commercial embalmers establishment license, in violation of Section
4(C), Article 4582b, and thereby violated Sections 3(H)(20), 3(H)(26), and
3(H)(27), Article 4582b.
33. Licensee William G. Honeycutt owned
and operated “Dallas/Fort Worth Mortuary Service,” which permitted provisional
licensees to embalm without personal supervision in violation of Sections
3(D)(1), 3(H)(20), 3(H)(26), and 3(H)(27), Article 4582b, and Commission Rule
203.6, and thereby violated Sections 3(H)(20), 3(H)(26), and 3(H)(27), Article
4582b.
34. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00662), permitted employees and/or agents to
commit a deceptive act or practice in not advising consumers that the price
being charged for embalming is not the same as the cost to the funeral
provider, in violation of Commission Rule 203.8(f)(1), and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
35. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00400), permitted employees and/or agents
to commit a deceptive act or practice in not advising consumers that the price
being charged for embalming is not the same as the cost to the funeral
provider, in violation of Commission Rule 203.8(0(1), and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
36. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 01015), permitted employees and/or agents to
commit a deceptive act or practice in not advising consumers that the price
being charged for embalming is not the same as the cost to the funeral
provider, in violation of Commission Rule 203.8(Q(l), and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
37. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00662), permitted employees and/or agents to
embalm without proper authority a dead human body, in violation of Section
3(H)(11 A), Article 4582b, by failing to disclose to consumers when oral
authorization to embalm was obtained that embalming services were to be
performed at another facility or by a third party, in violation of Section 4A,
Article 4582b, and Commission Rule 203.22(d), and thereby violated Section 4(E)
and 3(H)(26), Article 4582b.
38. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 00400), permitted employees and/or agents to
embalm without proper authority a dead human body, in violation of Section
3(H)(11A), Article 4582b, by failing to disclose to consumers when oral
authorization to embalm was obtained that embalming services were to be
performed at another facility or by a third party, in violation of Section 4A,
Article 4582b, and Commission Rule 203.22(d), and thereby violated Section 4(E)
and 3(H)(26), Article 4582b.
39. Licensee William G. Honeycutt, as
FDIC of “Lucas Funeral Home” (FH 01015), permitted employees and/or agents to
embalm without proper authority a dead human body, in violation of Section
3(H)(11A), Article 4582b, by failing to disclose to consumers when oral
authorization to embalm was obtained that embalming services were to be
performed at another facility or by a third party, in violation of Section 4A,
Article 4582b, and Commission Rule 203.22(d), and thereby violated Section 4(E)
and 3(H)(26), Article 4582b.
40. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 00662), used the services of “Dallas/Fort Worth
Mortuary Service,” which violated Section 4(C), Article 4582b by operating from
approximately January 1, 1998, through April 10, 1998, as a commercial embalmer
without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
41. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 00400); used the services of “Dallas/Fort Worth
Mortuary Service,” which violated Section 4(C), Article 4582b by operating from
approximately January 1, 1998, through April 10, 1998, as a commercial embalmer
without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
42. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 01015), used the services of “Dallas/Fort Worth
Mortuary Service,” which violated Section 4(C), Article 4582b by operating from
approximately January 1, 1998, through April 10, 1998, as a commercial embalmer
without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
43. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 00662), used the services of “Lucas Hurst Embalming
Division,” which violated Section 4(C), Article 4582b by operating as a
commercial embalmer from approximately April 10, 1998, until at least August
1998 without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
44. Alternatively, Licensee Cindy Lewis,
as FDIC of “Lucas Funeral Home” (FH 00662), operated under the name “Lucas
Hurst Embalming Division” in violation of Commission Rule 203.29 and Section
3(H)(26), Article 4582b, and thereby violated Section 4(E) and Section
3(H)(26), Article 4582b.
45. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 00400), used the services of “Lucas Hurst Embalming
Division,” which violated Section 4(C), Article 4582b by operating as a
commercial embalmer from approximately April 10, 1998, until at least August
1998 without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.
46. Alternatively, Licensee Cindy Lewis,
as FDIC of “Lucas Funeral Home” (FH 00400), operated under the name “Lucas
Hurst Embalming Division” in violation of Commission Rule 203.29 and Section
3(H)(26), Article 4582b, and thereby violated Section 4(E) and Section
3(H)(26), Article 4582b.
47. Licensee Cindy Lewis, as FDIC of
“Lucas Funeral Home” (FH # 01015), used the services of “Lucas Hurst Embalming
Division,” which violated Section 4(C), Article 4582b by operating as a
commercial embalmer from approximately April 10, 1998, until at least August,
1998 without a commercial embalmers establishment license, and thereby violated
Section 4(E) and Section 3(H)(26), Article 4582b.