Opposing Counsel

Sylvia Garcia and Mike Fleming, the two picture-perfect candidates for Harris County attorney, settled into their chairs opposite the anchors for KTRH-AM's Hotline. Democrat Garcia, vying to become the first Hispanic elected to a countywide post, faced off against Republican Fleming, a jut-jawed former assistant county attorney. Even off the air, they radiated dislike for one another. They didn't exchange introductory pleasantries, hardly looked at each other except out of the corners of narrowed eyes, and traded nary a comment during the commercial breaks.

On the air, each talked trash about the other. Garcia painted Fleming as a stooge of GOP county commissioners and religious rightists; Fleming characterized Garcia, currently the chief municipal courts judge, as a quasi-competent traffic-court jockey.

"It's no secret that Michael Fleming was recruited and handpicked to run in this office," Garcia told the audience. "I just don't know why Michael Fleming wants to keep it such a deep, dark secret."

"Unlike my opponent, I haven't run for another political office," replied Fleming. "I'm not used to these political attacks .... You don't need to make up all these allegations and false claims. Just talk about qualifications."

Even by the standards of talk radio during campaign season, the pair's rancor seemed extraordinary. Midway through the show, anchor Lana Hughes -- a morning-show veteran who has seen more than a decade of dysfunctional personalities parade through the studio -- popped into the control room looking as if she'd bitten a lemon. "What's with them?" she whispered.

The answer, in part, is obvious: Garcia and Fleming come from different ends of the political spectrum. Garcia is pro-choice, and a strong women's-rights advocate. Fleming is a pro-life conservative with ties to the religious right. Because the county attorney deals with both the Harris County Hospital District's policies and law-enforcement protection for clinics, abortion -- always a hot topic -- is relevant to the race.

To some degree, dissonance is also part and parcel of the office. The job involves many important but routine duties, such as drawing up contracts for commissioners, staffing mental competency proceedings, providing attorneys for Children's Protective Services and enforcing county environmental regulations. But the job's most important function is an unofficial one: The county attorney is perhaps the only agent in county government who can question the actions of Commissioners Court and back that up with legal action.

In his 16 years in office, incumbent Mike Driscoll transformed the county attorney's operation from a sleepy little legal paper mill into a 65-attorney "law firm," and attempted to seize a measure of power from the Commissioners Court. As defined by Driscoll, the county attorney acts as a watchdog over the court, reviewing its contracts and deploying moral suasion. In that role, Driscoll not only fought for the county attorney's right to independently review deals approved by the commissioners, but even dared to sue to remove County Judge Jon Lindsay from office.

Driscoll has staunchly defended his office's duties, including one now in question: delinquent tax collection, which the court's Republican majority -- Judge Robert Eckels and commissioners Steve Radack and Jerry Eversole -- removed from the County Attorney's Office and turned over to a private firm. Driscoll filed suit, only to lose the first round in court. His successor must decide whether to continue an appeal, and the Republican officials want a county attorney who'll stop fighting.

After failing to find a candidate of their own choosing, Radack and Eversole settled on Fleming as their horse in the Republican primary. (His opponent, moderate Republican Mickey Lawrence, had previously earned Eversole's ire by exploring running against the commissioner.)

But the rancor between Fleming and Garcia also derives from their uncertain bases. Each has won support from what seems the opponent's natural turf. Fleming of course received the endorsement of Christian-right types such as Stephen Hotze; but surprisingly, he has also picked up the party-crossing allegiance of many of the mostly Democrat senior attorneys at the County Attorney's Office, his former place of employment. Garcia obviously attracts inner-city minorities and liberal whites; but she's also backed by Republican women activists, both because she's pro-choice and because they were alienated by Fleming's rough campaign against Lawrence. (Fleming supporters repeatedly misrepresented Lawrence's stance on abortion, incorrectly telling conservatives that she's pro-choice.)

Even the support of outgoing County Attorney Driscoll, currently traveling in China, is in doubt; both candidates claim his mantle. As part of the Democratic ticket, Garcia shares a blanket endorsement from Driscoll, and she says he promised her a personal endorsement letter but never got around to writing it. But Fleming is quick to note that Driscoll called him "eminently qualified to be county attorney," and there are plenty of indications that the incumbent may privately be rooting for Fleming. Driscoll's two business partners, his brother Vic, and acting county attorney and first assistant Marsha Floyd have all contributed to Fleming's campaign. Driscoll, of course, is not around to clear up the question.

Some view the complicated race as the litmus test of this election, the contest that will predict which party holds sway in Harris County into the 21st century. Given the near-total Republican dominance in countywide elected positions, a Garcia victory would indicate that the balance is swinging back toward the Democrats.

"People will look at this race when they're making their decisions to run for offices in 1998," says GOP consultant Allen Blakemore. "This is a very good down-ballot race, where you have two good candidates running two good campaigns. It's very even. This is the one that the real students of politics in Harris County are going to be watching."

Block-walking just isn't what it used to be, laments Sylvia Garcia as she trods door to door in the condo-and-art-gallery enclave just west of Shepherd at Westheimer. On this crisp October Saturday, the exercise could double as a tour of the latest security fences and automated doors. Garcia winds up making as many pitches through speaker phones to unseen residents as she does face to face with real live voters.

One young man who does open his door peers intently at Garcia. He asks, "Haven't I seen you before?"

Maybe he has. Garcia, 47, has never held elective office but has been in the public eye for more than a decade. One of ten children who grew up in a poor South Texas family, she worked her way up through a law degree from Texas Southern University to become a legal aid attorney. In the early '70s, she joined the newly formed Houston Women's Political Caucus, where she met mayor-to-be Kathy Whitmire. The caucus helped boost Whitmire into the political arena, and provided her with a core group of supporters who never wavered during her decade as mayor. Whitmire provided Garcia an entree into municipal politics, appointing the young lawyer to the tax-appraisal review board and later to the Houston Foundation, which awards grants to worthy projects. Whitmire considered Garcia for a city municipal courts associate judgeship in the mid-'80s, but the appointment was nixed by then-councilman Anthony Hall, who felt Garcia was too close to his Council opponent. Nonetheless, Garcia was eventually appointed to a municipal judgeship, and in 1987, was named chief municipal judge.

Whitmire and Garcia remain in frequent contact. A Press inquiry to Whitmire's Washington, D.C., home drew a return call from Costa Rica, where she is traveling. Whitmire praised Garcia's public service and high ethical standards, and pronounced her perfect for the county attorney position.

The women show marked similarities in their speaking and political styles. "There's not much warm fuzzies with either of them," says a former Whitmite. "They can be tough, particularly on subordinates." Like Whitmire, Garcia has no problem expressing a direct opinion. During joint appearances with Fleming, she is quick to interject comments like, "He's lying."

As chief municipal judge, Garcia has managed the 17-court system with few public complaints and received favorable notices for the creation of Teen and Environmental Courts to deal with misdemeanor offenses. The few flaps on her watch have been minor, as when a part-time municipal judge, Saundria Chase Gray, produced a television news segment initially advertised as "how to beat a ticket." "I got them to change that," remembers Garcia.

More recently, an administrative assistant to Garcia, Norma Gutierrez, filed a grievance with the city civil service commission, accusing the chief judge of giving her poor job ratings and work assignments because she refused to work after hours for Garcia's campaign. Garcia says she cannot comment on a pending grievance but denies that she has pressured any employee of her office to do campaign work.

Fleming describes Garcia as a professional politician, but she's only run once before for elected office, and that time, she lost. In 1992, she ran for Congress, hoping to snare District 29 -- the newly created "Hispanic" district -- but outgunned financially and in name recognition, she failed to make even the runoff.

After Whitmire was squeezed out of the 1991 mayoral runoff and Bob Lanier beat Sylvester Turner, Garcia showed remarkable survival skills: She is the only Whitmire department head to keep her post into Lanier's third term. She was reappointed twice by Lanier, after the mayor extracted a promise that she would not run for the Congressional seat again while remaining chief municipal judge. That stricture expired this year, when Police Chief Sam Nuchia decided to run for a judicial position while remaining at the police department. What was good for the chief couldn't very well be denied to the chief municipal judge.

This time around, in her second run for elective office, Garcia is a far stronger contender. She's much better known than opponent Fleming, and is almost his equal in fundraising, despite Fleming's lead in contributions from big downtown law firms. Garcia's lead is chiefly due to a single, massive contribution: $30,000 from Houston heiress Maconda O'Connor, daughter of the late George Brown.

Garcia met O'Connor at a conference for Emily's List, a national organization that promotes women Democrats. O'Connor inquired about Garcia's campaign, and was informed that Garcia couldn't afford billboards, one of the most effective tools for boosting public recognition in a countywide race. "You should have billboards," O'Connor told Garcia, with the authority of someone who could provide them with a signature. Later, Garcia campaign officials received a call from O'Connor's banker, asking where to send the check.

That $30,000 may be the largest single political contribution in county history, but even so, Garcia says she finds it hard to reach voters spread across Harris County. Because Harris is the third most populous county in the nation, she points out, "I'm running for an office as large as attorney general of 26 states."

Even more difficult may be crossing the gulf between city and county government. The late commissioner Squatty Lyons often remarked on "how difficult it is to cross the bayou," to traverse the distance between City Hall and the County Administration building. Former city councilmembers Jim Greenwood and Vince Ryan tried and lost their county judge races against Jon Lindsay and Robert Eckels. Councilmember Eleanor Tinsley tried, too, and lost to Jerry Eversole.

Garcia believes most voters have little idea of what the office does. In her public appearances she touts the watchdog role Driscoll carved out for the office -- though she admits that Commissioners Court and the county judge cut the deals, and the county attorney can do little more than review them. A case in point: the county's negotiations with the Astros for a downtown ballpark. "I asked Marsha Floyd [Driscoll's first assistant] if the county attorney was involved at all at the early stages," says Garcia, "and she said no, our work is just going to be to transact the paperwork."

Fleming contends that he is far better qualified than Garcia to represent the county in federal court. She counters with the argument that her management experience presiding over the city courts better prepares her for the job. Vince Ryan, a former city councilman who served as Driscoll's first assistant in the '80s, supports Garcia, and seconds her analysis of the job. Ryan says that the job of county attorney is less than 50 percent trial work, and notes that Driscoll's record as a trial lawyer when he won election in 1980 was scarcely more imposing than Garcia's. Driscoll appeared in court occasionally on behalf of the county but did not argue cases. "You can always hire a trial attorney," says Ryan.

Garcia is also preparing for attacks Fleming's backers might make just before the election. Because she's single and received the Houston Gay and Lesbian Caucus' endorsement for county attorney, she expects the anti-gay faction backing Fleming to make her sexual orientation an issue. "Hotze's done it before," says Garcia, "and I expect them to do it again." Fleming replies: "I have not heard there would be an attack like that. I certainly wouldn't do it, and I don't think that's an issue in the campaign."

Sitting warily in the Liddell Sapp conference room, high in the recesses of Texas Commerce Tower, Mike Fleming looks the epitome of the well-connected corporate lawyer -- though in point of fact, he's a part-time attorney the firm hired for at least the duration of his campaign. Unlike many political aspirants, Fleming does not fill the air with verbiage. He waits for each question, and his answers are succinct and defensive. He is still learning the ropes as a public speaker, and has heeded the advice of media coach Barry Kaplan to speak slower in deeper tones. (On the phone, his voice is noticeably more nasal; he hardly sounds like the same person.)

Fleming complains that Garcia hasn't resigned from the courts. "I left my tax-paid position to campaign," says Fleming. "Garcia is still over there. Why is she running for office after office after office while working on the government payroll?"

In point of fact, Garcia is taking an unpaid leave, and Fleming's own work situation during the campaign raises questions. He enjoys the relative luxury of a 20-hour work week with Liddell Sapp. His job is not an out-and-out contribution, but the part-time employment allows Fleming to run for office while bringing in a paycheck to support his four young children.

(A relative newcomer, Fleming seems to have forged instant high-level connections at the prestigious firm. A recent, highly successful fundraiser at a Liddell Sapp associate's home drew many of the firm's ranking lawyers to contribute to the candidate.)

Fleming's Liddell Sapp job is not the only questionable aspect of his campaign support. His wife, Natalie Jackson Fleming, was once a Harris County prosecutor; she now occasionally subs as a visiting judge in several GOP district judge courts. Those gigs could be construed as a partisan stipend for a struggling candidate's family.

About all the 33-year-old Fleming and Sylvia Garcia seem to share is their Roman Catholic faith and the fact both passed the Texas Bar. Fleming, the Florida-born son of a Canadian plastic surgeon, spent part of his youth north of the border. In the early '70s, the Flemings moved to Houston, settled in the tony Southampton neighborhood and became part of a social group of extremely conservative Catholic families that included the family of GOP judicial candidate John Donovan, Steven Hotze and Leo Linbeck. The parents shared political views while the kids ran in the same circles at area Catholic academies. Fleming, according to Steve Hotze's brother Jim, was and continues to be a family friend. These associations have led some to believe that Mike Fleming is a conservative stealth candidate wrapped in moderate guise.

Fleming earned a B.A. from the University of St. Thomas, where he met his wife, Natalie Jackson. (Interestingly, Natalie's sister is Lilly Warden, the former court clerk for Democratic judge Lupe Salinas who helped provoke a long-running and inconclusive prosecution of the judge for campaign report violations. An acquaintance of Warden claims that she bragged that her in-laws had helped push the investigation against Salinas. Fleming denies he played any role in the Salinas matter, and there's no evidence he did.)

After graduating from the University of Houston law school, Fleming went into private practice with his brother Harry. He has been sued once for breach of contract in his representation of a couple seeking to adopt a baby. The suit was dismissed, and Fleming describes it as frivolous litigation without merit.

Fleming joined the County Attorney's Office as a delinquent tax suit attorney nearly five years ago and quickly moved into the federal trial division. Assistant county attorney Terry O'Rourke describes it as one of the most sensitive assignments in the office, because in civil rights cases, potential damages against the county are unlimited.

County Attorney Mike Driscoll picked Fleming for perhaps the most volatile assignment of his tenure: prosecuting the removal from office suit Driscoll brought against county judge Jon Lindsay. Fleming handled a blistering deposition of Lindsay, repeatedly forcing the judge to admit to lies concerning his involvement with the corrupt developer and S&L scammer Robert Corson. Within the County Attorney's Office, that assignment established Fleming's reputation as an independent prosecutor who would not let his Republican allegiance stand in the way of pursuing wrongdoing. When Lindsay voluntarily chose not to run in 1994, the suit became moot.

Lindsay repeatedly charged that the suit was a Democratic plot, but Fleming insists, "I had no political motivation at all." Of the prosecution, he says simply, "Mike asked me to do it, and I did it." Would he have brought the suit had he been county attorney? "I think so," he replies. "If I didn't think there was any basis for the suit at all, that it didn't have to be some litigation of it, then I wouldn't have done it."

Driscoll also invited Fleming into a complicated environmental lawsuit involving the Sheldon Reservoir area, noting that he needed to be grounded in environmental concerns if he wanted to be county attorney. It's just one of a number of indications, say Driscoll subordinates, that the incumbent wants Fleming to be his replacement.

Perhaps the most emotionally taxing case Fleming handled was defending the sheriff's department policy of using deadly force to prevent the escape of prisoners, even if those prisoners were not jailed for violent crimes. In November 1988, two sheriff's deputies fatally shot Roland Brothers, a 28-year-old prisoner, three times in the back as he tried to escape from them at the downtown jail. Fleming defended the sheriff's department against a federal court challenge to its deadly force policy. A co-worker of Fleming says he was obviously troubled by the case. An anonymous note posted on his office door questioned how the attorney could in good conscience defend the policy.

"Terrible incident, but the issue involved is interesting," says Fleming. "The way I looked at it was, that was the only way they could stop him. And that was the sheriff's policy, and there was an argument whether that was legal. And that's the way I pursued it."

But was it right to shoot an unarmed, non-violent prisoner in the back simply because he ran?

"Like I say," replies Fleming with a trace of impatience, "it was a tragic circumstance. Okay? It's unfortunate that he had to be shot and he died. Terrible." As for being troubled by the case, Fleming is blunt. "I can't imagine anybody that wouldn't be troubled over the fact somebody had to be shot. As far as the issue itself, dealing with the legal issues of whether or not it's justified, is sort of separate from the circumstances of how unfortunate it was .... I didn't have any problem with defending the case, if that's what you're asking." Fleming won a summary judgment in federal court in Houston, and a split appeal before the Fifth Circuit. The Supreme Court refused to hear the case.

Perhaps the most surprising element of the campaign is the almost unbroken phalanx of support for Fleming from the Mike Driscoll-appointed staff at the County Attorney's Office. Part of their motivation is undoubtedly the feeling that Fleming, an insider, would not upset the office's status quo.

Driscoll business partner Jim Edwards contributed $5,000 to Fleming's campaign. Through a company spokesman, Edwards -- often described by intimates as Driscoll's closest friend -- says he's supporting Fleming because both are Republicans and because Fleming "pledged to maintain the practices and staff of the office as it's been under Mike."

Garcia has promised to make no major staff changes for at least six months, but allows that the office's management may need tightening up. She notes that when she asked Driscoll's first assistant Floyd for a printout of cases and contracts being handled by the County Attorney's Office, Floyd could not provide it. Garcia also says that when Floyd gave her a guided tour of the office, some employees appeared not to recognize the assistant.

Garcia has repeatedly charged that Fleming was recruited by special interests to run for the County Attorney's Office, a claim Fleming scoffs at. According to several Republican political consultants, the truth lies somewhere in between. Fleming independently decided to run for the office last December, while the county GOP establishment looked elsewhere for an acceptable candidate. Prospects cultivated for the role included former state rep Ashley Smith, Vinson & Elkins attorney Margaret Wilson, district Judge William "Bill" Bell and even retiring Congressman Jack Fields.

None of those prospects appealed to Radack, Eversole or Steven Hotze, a powerful crusader against abortion and the gay lifestyle. After the filing deadline, and confronted with the candidacy of moderate Mickey Lawrence, Radack and Hotze settled on Fleming. During the primary, Radack alone contributed nearly $6,000 in campaign services, and Radack and Eversole each forked over another $5000 in cash. Meanwhile, Fleming forwarded $5,000 from his treasury to a political action committee controlled by Hotze. (He says that he has not forwarded any money to Hotze during the general election.)

Asked about Hotze, Fleming says simply that he accepts the doctor's endorsement as one of many in a wide spectrum of political support. Fleming also claims he would not let his own anti-abortion views influence his enforcement of legal protections for abortion clinics, or intrude on issues involving separation of church and state.

Sylvia Garcia is the candidate who offers few surprises, a veteran Democrat who managed the city courts while getting along with two different mayoral administrations. Fleming is more of a wild card: It's hard to believe his claim that he can take money and support from players who would benefit from a subservient county attorney, but still maintain the office's independence.

Cathy Sisk, a longtime Democrat and the head of Driscoll's environmental division, believes that Fleming can maintain that independence, and she isn't alarmed by his Republican backers on Commissioners Court. "Curiously enough, when you get down to issues, some of the Republicans might end up agreeing with you more than they disagree with you. Radack and Eversole have been the two biggest supporters on the Court for environmental regulation and initiatives."

But Fleming's support from the religious right is another matter. "The Hotze endorsement -- yeah, that gives me pause," says Sisk. "I get the impression Hotze's not the kind of person that allows you to agree to disagree. And the idea of pushing the Christian agenda to make it an integral part of government -- yeah, I've got a problem with that."

Having worked with Fleming, Sisk doesn't believe he's a stealth candidate either for Radack or the religious right. "He would have had to totally hide his nature from me for several years. And I just don't think that's possible."

Vince Ryan, who now works for the Calame Linebarger tax-collection firm, sees the mechanics of the campaign differently. "It's especially tough to say no to your friends," comments Ryan. Commissioner Radack is not the kind of power player whose help comes without strings attached, adds Ryan, who questions whether Fleming can take the money of the big downtown firms now, then fight the commissioners to maintain the power of his office later. "Any time [the commissioners] don't like the opinion of the County Attorney's Office, they'll go find some attorney to represent them. During the toll-road litigation, Vinson & Elkins and Fulbright & Jaworski were paid over a million dollars by the county." Ryan notes that Vinson & Elkins and Fulbright are two of Fleming's largest financial supporters.

Voters will have to decide whether it's wise to go with Fleming when the candidate clearly owes substantial political debts to Radack, the official who increasingly dominates Commissioners Court. (In mid-October, Radack pushed through a stealth tax increase that left County Judge Robert Eckels looking like a figurehead.) Fleming promises that his decisions in office would be shaped by his respect for the law rather than his conservative ideology or the desires of his supporters. He points out that in his tenure at the County Attorney's Office, he's done what he was asked to do regardless of his political beliefs. But then again, he's never been the boss, either.


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