It has been just shy of four decades since a state House committee conducted an investigation into whether to impeach a public official. So it's not surprising that the early days of such proceedings, focused on University of Texas System Regent Wallace Hall, have generated some confusion.
This summer, House Speaker Joe Straus, R-San Antonio, authorized the House Select Committee on Transparency in State Agency Operations to conduct impeachment investigations; the intention was for the committee to review Hall, who has riled lawmakers with his intense scrutiny of them and of University of Texas at Austin President Bill Powers.
Previously, House Appropriations Chairman Jim Pitts, R-Waxahachie, had filed a resolution calling for Hall’s impeachment, but Straus opted to take a step back and authorize the committee investigation first.
After a handful of organizational meetings, the committee, chaired jointly by state Reps. Dan Flynn, R-Van, and Carol Alvarado, D-Houston, announced six tentative dates over the next three months during which they plan to take testimony.
At a recent meeting, Flynn said the committee was considering three allegations against Hall: whether he failed to disclose key information on his application to be a regent; whether he improperly handled sensitive student information; and whether he exceeded his authority in his private investigations of UT-Austin, which have been marked by demands for large volumes of documents.
Ahead of the hearings, here's a look at how the process works, and the questions likely to come up:
Is the outcome of the process a foregone conclusion?
Roughly four weeks before the first impeachment hearing, Rusty Hardin, the high-profile Houston defense attorney the committee hired to serve as its special counsel, stressed that the investigation was in its early stages, and that nothing was a done deal.
“I don’t know the basis for Mr. Hall and his lawyers to be continually suggesting that this is an effort to impeach him,” Hardin said. “It’s an effort to find out, first, what happened, and then, whether that merits any further involvement from the House.”
But Hall's lawyer, Allan Van Fleet, said that while Hall is "hopeful everybody involved in this is keeping an open mind," he and his client have some uneasiness about what's sure to be an atypical process, particularly because politics are on the table.
“Even though this is a legislative committee exercising judicial power, there is a lot of politics involved here,” he said. "When politics start flying, you can’t really count on people’s rights being respected.”
Van Fleet added that some members of the committee have "already expressed themselves as believing that Wallace acted improperly before a shred of evidence has come in. That gives me some concern.”
But the committee co-chairs have repeatedly stressed that they intend for the process to be even-handed.
“At the end of the day,” Flynn said, “I want everyone, whether it’s the University of Texas, whether it’s Chairman Pitts, whether it’s Mr. Hall, to be able to say they had an opportunity to have a fair hearing.”
Does the committee need to find evidence of criminal behavior to recommend impeachment?
The short answer is no. At the federal level, impeachment is reserved for people who have committed high crimes and misdemeanors. Not in Texas.
The last time a state House committee recommended impeachment — in 1975, against state district Judge O.P. Carrillo — there were criminal offenses involved. But the committee noted in its final report that year that the finding of criminal activity was unnecessary.
“Impeachment is designed to cope with both the inadequacy of criminal standards and the inability of the court system to deal with the conduct of great public figures,” committee members wrote at the time.
Ultimately, it will be up to lawmakers to decide whether Hall has lived up to the standards of being a regent. Said Hardin: “I think the standard for impeachment is pretty much what the majority of 150 people are going to say.”
To what standards are regents held?
This is something the committee must figure out.
Members intend to answer two basic questions. First: What did Hall do — or not do, as the case may be? Second: Are the answers to the first question out of step with what is expected of a regent at a public university system in Texas?
One of the charges leveled against Hall is that he omitted on his regent application some lawsuits he was a party to that might have materially affected the outcome of his nomination. But some have noted that he is not the first regent to do that.
“I’ve gotten calls saying that other regents have done the same thing,” Hardin said. “I don’t know if they have or have not. If they did, is that the standard? Or were they also violating the standard a regent ought to be held to?”
Meanwhile, though the committee is only currently looking into Hall, its charge from Straus grants it the authority to scrutinize any gubernatorial appointee, including all other regents.
Will recent reports that Hall participated in a call dealing with the potential replacement of UT-Austin’s football coach become an issue?
This remains to be seen. Allegations of micromanagement have been leveled at the UT regents by lawmakers repeatedly over the last few years. After hearing that Hall participated in a call with the agent for University of Alabama football coach Nick Saban — a personnel discussion related to UT-Austin's athletics department that a spokesman for Powers says the president was not notified of — such criticism is likely to be renewed.
Both NCAA rules and the UT System’s Regents Rules are clear that athletics personnel decisions rest with the president of an institution.
Hall, who was connected to the agent via a mutual acquaintance, did notify the board's chairman and athletics liaison before participating in the call. The UT System has not responded to requests for clarification about who authorized the call with Saban’s agent, and who — if anyone — was responsible for notifying the president. Ultimately, nothing came of the exchange.
Flynn said the committee is currently focused only on the three charges previously leveled against Hall and has not been asked to add anything to the docket.
“When testimony happens, there might be issues that come up,” he said. “We won’t necessarily go in that direction, but it will be out in the committee.”
How long will the hearings take?
It's flexible, and Hardin and Flynn both indicated that the committee is not tied to the number of hearings that are tentatively scheduled. The 1975 committee, for example, held 21 meetings, spending a total of more than 90 hours in session. Members heard from 32 witnesses, a process that took roughly 70 hours. They studied 15 volumes of testimony and about 170 documents offered into evidence.
And it won't be cheap. The committee is paying Hardin $300 per hour. The UT System has also hired its own lawyers, which could cost the state up to $200,000. When asked about the price tag, Flynn responded, "What is the cost of justice?"
"At the end of the day," he added, "when one side or the other wins, the other side's going to say we spent too much money."
Will Hall or his attorney be allowed to cross-examine witnesses?
This has emerged as one of the largest points of contention at this early stage.
Cross-examination was allowed during the first major impeachment in the state’s history, that of Gov. James “Pa” Ferguson in 1917. But it was allowed only in a very limited way in the 1975 proceedings, on the grounds that unlimited cross-examination would “unnecessarily lengthen the record and the time required for the committee’s deliberations.”
In the 1975 committee report, members explained, “Like a grand jury, the committee decided that its function was not to determine guilt or innocence, but merely to decide if there was sufficient evidence to justify further legal proceedings. For this reason, unlimited cross-examination of witnesses was not permitted."
The current committee has, at Hardin’s suggestion, followed this line of thinking and voted not to allow cross-examination during its investigation.
“I’ve never seen an investigation being conducted where the person whose conduct is being investigated is allowed to cross-examine witnesses at an investigation stage before anybody’s ever determined what happened,” Hardin said. “You just don’t do that in an investigation. It doesn’t make sense.”
Hardin noted that Hall’s attorneys could submit suggestions of witnesses, affidavits from witnesses and suggested questions on a rolling basis — privileges they would not have in a typical grand jury setting.
But Van Fleet is not satisfied by the inability to cross-examine witnesses. "You can say this is just an investigation, and it’s not a trial. But it sets up the whole ball game,” he argued.
What happens if articles of impeachment are recommended by the committee?
If articles of impeachment are recommended, Straus can call the House back to vote on it if he receives a request to do so signed by at least 50 members. If the House decides it wants more testimony before voting, members can ask for it at that time.
If a majority of the House votes in favor of impeachment, the proceedings head to the Senate, which convenes as a court. This is where Hardin says Hall would be allowed "all the trappings" of the trial process.
When such matters reach the Senate stage, anyone being impeached under the Texas Constitution would be suspended from their appointed or elective duties. But Hall's attorneys think that section of the Constitution does not apply to university regents, because their impeachment rules are laid out in the Texas Government Code.
Van Fleet acknowledged that if Hall is impeached by the House, “as a practical matter, of course it’s going to interfere with his ability to discharge his duties.”
Former state Rep. Sarah Weddington, D-Austin, was on the committee in 1975 that recommended 11 articles of impeachment against Carrillo, who was ultimately removed from office. She said the outcome of that case gives her no special insight into Hall's.
“It partly depends on who chairs the impeachment proceedings, who the various members of the committee are, what advice they get from counsel and that sort of thing,” Weddington said. “There’s not one way for it to happen.”
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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/09/25/what-will-impeachment-probe-look/.