Justice for sale in Texas?State supreme court ruling may leave industrial workers in the cold; was it paid for?
By Mark Greenblatt / 11 News Defenders
Tuesday, May 13, 2008
We all expect our courts to offer a fair and impartial trial. It is, after all, one of the basic demands we make of our society in America. But are the scales of justice in Texas tipping against you and instead,in favor of big corporations?
What’s worse, experts say you may be paying the price with lower safety standards. Jose Herrera liked working at the CITGO refinery, sometimes spending 80 hours a week working -- as many men do at similar plants -- as a contract laborer. But he didn’t mind. He was the breadwinner for his family and for his young son.
But today, Herrera is trapped in a nightmare of a memory of a work accident. One that poured 475-degree petroleum all over his body as he struggled to free himself from a jammed safety harness for what seemed like ages.
“Between seven to 12 minutes,” he said. “I got burned literally up in my head.”
And even after hospital treatment, even months later, he is still trapped in isolation.
“We can’t hug him because he hurts all over,” his wife Hortencia said. “He can’t hug me or hug my little boy.”
And trapped in the worst way possible for a proud working man -- Financially, with seemingly no way out.
11 News: “What is going to happen to your family?”
Jose: “I don’t know.”
11 News: “Are you concerned?”
So how could this happen?
Let’s start with March 23, 2005 as the Texas City refinery of BP detonates into flames, killing 15 workers and injuring more than 170 others.
Linda Hunnings remembers that morning, as her husband, a contract worker, “Gave me a kiss and said, ‘Don’t forget baby I am working over today,’ and I said, OK,’” she said.
She never saw him again.
“He used to say that plant was an accident waiting to happen,” Hunnings said.
So, Hunnings and others filed lawsuits against BP. The result: $1.6 billion in total awards, and it rocked corporate Texas.
But not for long.
“The Legislature has repeatedly refused to pass this law,” state Rep. Craig Eiland said.
Eiland says big business had already been pushing a law that would shield them from contract employee accident claims in Texas, but, “Since 1995, there have been five attempts,” he said. “Five times, shot down.”
So, without the legislature’s help, experts say industry began focusing on another possibility: the Texas Supreme Court and the case of Entergy vs. Summers.
It’s where they finally succeeded.
In the case, the judges ruled that if Texas companies bought a certain type of worker’s compensation insurance, they were protected from contract worker lawsuits stemming from injury.
“My initial reaction was ‘they didn’t do this,’” he said.
To legislators from both sides of the aisle, the high court had overstepped its bounds.
Eiland: “The judiciary is supposed to interpret the law as it is written.”
11 News: “And what is happening here?”
Eiland: “They are making the law.”
"This decision is leaps and bounds beyond what the legislature intended," said Alex Winslow of Texas Watch, a government watchdog group based in Austin. "This is not a small and insignificant ruling, this is sweeping and far reaching. It affects every worker in the state and I believe threatens communities across the state."
So why did the court do it?
“This is supposed to be an impartial panel,” said Andrew Wheat, a member of Texans for Public Justice that follows money in politics.
“This judicial system has become a joke, a farce,” he said.
Why? Wheat analyzed campaign contributions to Texas Supreme Court justices and he said he found that “some of the biggest donors that came up are old school oil and gas companies.”
Companies, Wheat said that would benefit handsomely from the Court’s recent ruling.
“This is an industry that invested heavily in these justices’ campaigns,” Wheat said.
Take a look for yourself: BP, the Texas Oil and Gas PAC and others with an interest in the ruling gave nearly $750,000 to the justices in the six years leading up to the decision.
We should note that three of the nine justices have been there the full six-year period, while six have not.
And who got the biggest share? Justice Don Willett, the same justice who wrote the Entergy opinion that gives these industries immunity.
But for some?
11 News: “You agree with the Supreme Court’s decision?”
Leo Linbeck Jr.: “Absolutely.”
Linbeck is a founding member of Texans for Lawsuit Reform.
“I don’t know why a lawsuit is a necessary ingredient in investigating what happened,” he said.
So we showed him Jose Herrera’s picture.
11 News: “He has no recourse against the people he believes could be responsible. Do you believe this is really the right thing to do?”
Linbeck: “You’re asking me to respond to you in an emotional way about a fact situation. I didn’t make the law.”
Here’s an interesting fact: Two of the largest donations ever made to Justice Willett, the author of the ruling, came from the political action committee for Texans for Lawsuit Reform.
“We have to get money out of the courtroom,” Texans for Public Justice’s Wheat said.
11 News: “They believe this stinks. Your response?”
Linbeck: “Then they ought to hold their nose.”
Which brings us back to Herrera. With the clock now ticking on his two years of workers compensation money.
11 News: “They say your right to sue does not exist anymore. What do you think about that?”
Herrera: “That’s not right.”
11 News: “Why?”
Herrera: “They (treat) us like a piece of tool. We are not a tool. We are human beings.”
Linbeck told 11 News that on a personal basis, he supports the idea of reforming the current system of electing Supreme Court Justices. He said it is “unseemly” for justices to raise money personally for campaigns. However, he said he expects Texans For Lawsuit Reform and others to play by the rules as they are currently written until such reform comes along.
So, what was the Court’s reaction?
In a rare move, it has agreed to rehear the Case of Entergy vs. Summers. A spokesman says that likely will take place in September or October.
From there, the 11 News Defenders were told it could be more than a year before the Court issues its ruling.
Entergy declined comment on this story, citing the pending rehearing of the case.
After two years, Herrera could be eligible for other benefits if he qualifies.
The Texas Supreme Court justices declined comment, but some say any campaign contributions to the court give more of the appearance of impropriety than the real thing.
For example, the Court recently made a controversial ruling in favor of Perry Homes. But in that case, Chief Justice Willett, who received a substantial amount of campaign money from Perry, actually dissented against that judgment.
Texans for Lawsuit Reform said that they've advocated for years to have supreme court justices appointed on merit.
They also deny any impropriety has occurred due to any campaign contributions they've made.
Finally, both Entergy and BP declined comment, but Citgo told us that they strive to provide a safe workplace and say they support Jose Herrera and his family through medical care and income benefits under the Texas Workers Compensation system as provided by law.
They also say they are fully cooperating with state and federal investigations into Herrera’s accident.