Tuesday the Texas House Select Committee on Transparency in State Agency Operations met again to continue their tribunal against University of Texas Regent Wallace Hall.

First, the Committee alleged that Hall failed to properly fill out his regent application. That claim was blown up by committee member Rep. Charles Perry, amongst others during the Committee’s previous meeting.

The committee also claimed that the open records requests sent to UT by Regent Hall were “abusive.” But testimony yesterday from UT System attorneys revealed that all Hall did was ask that the University comply with the legally required deadline to respond to Hall’s requests as a citizen under the Public Information Act. Those requests required UT and UT System to work over a weekend in June to complete the review required in order for Regent Hall’s requests to be released. Essentially, the complaint was that Regent Hall made some government employees work over the weekend.

The major theme of the day, however, was a complaint that the committee and the committee’s self-appointed leader, Democratic State Representative Trey Fischer, pushed. Fischer alleged that Hall violated FERPA, the Family Educational Rights and Privacy Act, by giving some important documents to his attorneys. The complaint was that Hall inadvertently received documents that were protected under FERPA (after asking the University not to release FERPA-protected documents to him) and then revealed those documents to his attorneys after members of the legislature began impeachment proceedings against him. The committee seems to expect that Hall would be aware (and would legally respect) a 2008 Department of Education “Guidance Letter” which suggests that FERPA-protected information can’t be shared with a person’s independent legal counsel. Fischer even went so far as making the legally dubious claim that Hall had violated state law by sharing the documents with his lawyers as part of his impeachment defense.

This would all be an interesting legal question about the right to counsel, but Barbara Holthaus, who was called by the committee late on Tuesday, clarified that the materials the committee was complaining about weren’t FERPA-protected at all. Holthaus, UT System’s resident expert on FERPA issues, explained that communications regarding a student who was not yet enrolled were not protected by FERPA and that they didn’t have to be collected and returned to the University after the student’s date of enrollment if they had already been distributed. She explained that it was only after a student was enrolled and started attending that records regarding that individual, even records dating back before their admission, were protected under FERPA.

The documents in question — I am led to infer — are emails between soon-to-be-retired Texas House Appropriations Chairman Jim Pitts and UT President Bill Powers’ staff in which he attempted (successfully) to get his adult son into UT Law despite being previously denied. The take-away of Holthaus’s testimony was that if that document was released to Regent Hall before the younger Mr. Pitts began attending the law school then the documents weren’t protected under FERPA at all. I also am led to ponder how a communication between an elected official and a university president can possibly be an “education record,” but I have yet to investigate FERPA in enough detail to make that determination.

Holthaus’s testimony near the end of the day ensured that all of the day’s hemming and hawing over allegedly FERPA-protected documents was much ado about nothing.

The testimony of lawyers from UT System’s Office of General Counsel was also enlightening. It was revealed, for the first time, that Regent Hall discovered documents in his search that, when put together, revealed that a crime may have occurred. The System’s lawyers said that Hall wanted to take the materials to the authorities but that he was hamstrung by FERPA. UT System General Counsel Dan Sharphorn also poured water on a sob story told by UT CFO Kevin Hegarty at the last meeting of the Select Committee. Hegarty had complained that he was denied legal counsel other than Sharphorn, who he had a conflict with. Sharphorn explained that, in reality, Hegarty had never made a request for outside counsel and that he actually has four of five attorneys at his disposal in UT’s Office of Vice President for Legal Affairs. This was just another revelation that the case against Hall isn’t what his persecutors pretend it to be.

The committee simply doesn’t have a case against Regent Hall. They never did. But now the public can see that their puffed-up claims are unraveling like a ball of string. It is now clear that Hall was actively doing his job at UT by investigating known and possible corruption and crimes. He should be receiving accolades, not the third degree.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.