Paying the Price

Hospital district officials wanted a simple one-sentence policy on immigrant health care. What they got instead was a criminal probe and plenty of politics.

"I don't get to pick and choose what laws I enforce," he says.

Even those under investigation by Rosenthal express confidence that the D.A. is not on a witch-hunt. But defense attorney Rusty Hardin, who is representing the district, says the prosecutor didn't help his case by appearing to invite citizens' complaints in the Chronicle.

"That's just going to blow up in everybody's face," he recalls thinking when he read article.

Eckels: Nobody would say, "'I'm sorry, just go home and die.'"
Phillippe Diederich
Eckels: Nobody would say, "'I'm sorry, just go home and die.'"

Rosenthal denies that he was fishing for complaints.

"I've got enough to do around here without worrying about the hospital district," he says.

A particular sore spot with the district attorney is the perceived link between him and the Young Conservatives of Texas. Rosenthal dismisses the group of right-wing law students as "probably idiots." Contrary to media reports, he says they had nothing to do with his investigation, noting that the first person to complain to his office "had a Hispanic surname."

In a letter dated August 2, Rosenthal laid into the callow Levin for his bit of "chest-thumping" to the media.

"If you believed that you were bringing pressure to bear on this office, or me, you were sadly mistaken," he wrote. "Your sanctimonious correspondence has given media types, who believe that there is politics in everything, something to chew on and have [sic] in some way already cast a pall over this investigation."

Rosenthal says it does not bother him that no other prosecutor in Texas has launched an investigation like his. Nevertheless, in August he asked John Cornyn to bring together the district attorneys from several large Texas counties to discuss the immigrant health care matter.

"It was not my reason for asking the attorney general to get this together just to have everybody say, 'Go, Chuck, you're our man,' " he says. Rather, he hoped they could delve into the finer points of the law.

In late August Cornyn arranged a conference call that included D.A.'s from Dallas, Tarrant, El Paso, Travis and Bexar counties. Rosenthal found the discussion disappointing.

"Basically what I got from most of it was 'Well, if we kind of ignore it, it will go away,' " he recalls. "I don't think that's the case. I think there's potentially a lot of money to be lost by Texas in repaying the federal government for some of the things that happened here."

Not long after Rosenthal launched his probe, the hospital district came back swinging behind the one-two punch of defense attorneys Rusty Hardin and Joel Androphy. Before long, the high-dollar barristers filed briefs rebutting the attorney general's opinion, which, they emphasize, is just that -- an opinion.

"The criminal justice system should not be trying to resolve social policy," Hardin says.

Area lawmakers wasted no time getting into the act. Congressman Gene Green introduced legislation that would authorize hospital districts to provide a full range of care to undocumented immigrants. State Representative Garnet Coleman vowed to introduce a similar bill when the legislature meets in 2003.

The final piece fell into place when County Attorney Michael Stafford issued an opinion of his own on August 30. In it, he argues that state law -- including 1999 amendments to the Texas Constitution -- and previous attorneys general opinions, enable the district to provide subsidized nonemergency care to the undocumented, the federal law notwithstanding.

If the federal law did take away that local power, Stafford argues, it in effect would authorize states to discriminate in varying degrees against noncitizens in violation of the U.S. Constitution's equal protection clause; would draft state and local officials into enforcing national immigration laws; and would usurp Texas's power to determine how to spend funds on state and local medical care.

The sureness of Stafford's opinion calls into question why the county attorney's office didn't reach a similar judgment last year, without taking the matter to the state and creating the ensuing brouhaha. For after all the hand-wringing and high-powered lawyering, the hospital district is going forward with the same policy it wanted -- the same policy as always, really.

Adopting a philosophical view of the controversy, Eckels faults neither the county attorney nor Rosenthal. The episode marks the latest skirmish in the battle between the federal government and states over the costs of immigration, he says.

The federal law was an attempt to discourage illegal immigration and reduce costs to the federal government, "but what it did was not eliminate the service, it just eliminated the payment for the service," he says. "So where one place quits paying, someplace has to pay." The county will not join in any more lawsuits against the national government, he adds, but will continue to lobby Congress to cough up more funds.

Other counties have seen themselves impacted by Harris County's fight. In the wake of Cornyn's decision, hospital districts in Montgomery and Nueces counties have limited subsidized services to the undocumented.

Watching the forces mass, Larry Finder, who set the events in motion, laments the use of the district's strained financial resources for expensive lawyers.

Does he regret having asked for the opinion?

"Oh, no," he says emphatically. "I have second thoughts about whether or not I should be doing this as my pro bono activities. It just doesn't send a good message to people who are asked to do volunteer work and serve."

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