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West Texas DA denies lawsuit’s claim that he fired assistant prosecutor for raising ethical concerns

83rd District Attorney Ori White says he fired his one-time assistant prosecutor Jerry Phillips for refusing to follow a judge’s order in a burglary case. In court filings, Phillips says while he did refuse to follow the order, his firing over the matter was “pretextual.”

By Travis Bubenik

A lead prosecutor in the Big Bend region is refuting claims that he fired an employee for raising concerns about “unethical and possibly illegal” behavior within his office.

Sonora-based attorney Jerry Philips brought the lawsuit against 83rd District Attorney Ori White in late August. Phillips was the first assistant prosecutor in White’s office.

The sweeping complaint accuses White of firing Phillips as retaliation after Phillips raised concerns about a wide range of allegedly improper behavior within the office and among local county attorneys across Far West Texas. Phillips now works as a prosecutor in the neighboring 112th district.

The lawsuit, which asks in part for Phillips’ job with the 83rd district to be reinstated, also targets all four county governments within the district: Brewster, Jeff Davis, Presidio and Pecos counties.

In court documents filed this month, White roundly rejected the claims against him, with his attorneys writing that he “denies each and every, all and singular, the allegations contained” in the lawsuit. White also argued that he can’t be sued in his capacity as DA under “various theories of immunity.”

In an earlier email to Marfa Public Radio in late September, White offered a more specific denial of one of the lawsuit’s key claims, saying Phillips was “lawfully terminated for cause” over his handling of a criminal case.

“I am confident we will prevail in the lawsuit he filed,” White said.

According to court documents, the criminal case in question was brought in March over an alleged burglary of a Brewster County home around Thanksgiving in 2019.

Marfa Public Radio is not naming the one-time defendant or alleged victim in the case because the charges were ultimately dropped. White claimed it was how Phillips handled dropping the case that led to his firing.

White said Phillips was fired after he failed to follow a judge’s order to notify the burglary victim that prosecutors were planning to drop the case.

According to a transcript that White shared with Marfa Public Radio, the matter came up during a tense exchange between Phillips and 394th District Judge Roy Ferguson at a court hearing in late May.

At the hearing, Ferguson asked Phillips whether the victim had been notified about the prosecutors’ motion to dismiss the case, but Phillips avoided answering.

“Have you communicated with the alleged victim in this case to let her know that you’d be dismissing this charge?” the judge asked Phillips.

“I don’t think I’m going to answer that question,” Phillips responded.

“You have to answer the question,” the judge answered. “The Court’s instructing you to answer that question.”

After some more back-and-forth on the matter, according to the transcript, Ferguson instructed prosecutors to mail a copy of the state’s dismissal motion to the victim. According to White, Phillips failed to follow that order, which led to his firing. The burglary case was dismissed in June.

While an attorney for Phillips would not comment on White’s description of the incident, Phillips laid out his version of events in an affidavit filed alongside his original lawsuit.

In the affidavit, Phillips said he did indeed refuse to follow the judge’s order, but that he did so because he considered it an “illegal order.”

“The questioning by the Court was, in my opinion, inappropriate because victim contact and coordination is within the realm of the district attorney, not the district judge,” he wrote.

Phillips then pushed White to ask the Texas Attorney General for an opinion on the matter, according to the affidavit.

Phillips wrote that he later told his staff that he would not follow the judge’s order. Instead, he would allow the judge to charge him with contempt of court in hopes that the issue of the order would be litigated in court before a different judge.

According to the affidavit, Phillips was fired just a few days after the burglary case hearing when he told White that he had instructed his staff to not send a letter to the victim as the judge had ordered.

Still, in the affidavit, Phillips maintained that the grounds for his firing were “completely pretextual” and had nothing to do with the burglary case. White had never specifically instructed him to send the letter to the victim, Phillips said.

“I was terminated because I had made it clearly known that I could not allow what appeared to be wrongful, or even illegal, conduct by officials to transpire without question or investigation,” he wrote. “I was fired because of my stated intention to take matters to the Texas Rangers for investigation.”

Phillips previously said in a statement to Marfa Public Radio that he brought the lawsuit over his firing because of his belief in “government for the people, by the people, and for the people.”

With the legal wrangling in the case just getting underway, three of the counties targeted in the lawsuit have meanwhile asked a judge to move the case from Travis County to the Big Bend region. 

Phillips has asked the judge to keep the case in Central Texas, arguing in court documents that he couldn’t receive a fair trial in the Big Bend. The judge overseeing the case has yet to rule on any of those requests.

Travis Bubenik is All Things Considered Host and Big Bend Reporter at Marfa Public Radio.