Rusty Hardin

Update (1:16 p.m.): Rusty Hardin, special counsel to the committee, said the draft of the report was sent to state Reps. Dan Flynn, R-Canton, and Carol Alvarado, D-Houston , the co-chairs of the committee, last Tuesday.  Hardin said the other members of the committee received the report Friday.

Hardin said the members of the committee will review the draft of the report and will have a discussion with Hardin about any changes they see fit before the report is released to the public.

According to Hardin, the contract between his law firm, Rusty Hardin & Associates, LLP, and the transparency committee expired on March 31.

Original: A draft of the report prepared by the House transparency committee indicates that UT System Regent Wallace Hall likely committed impeachable offenses during his time as a member of the UT System Board of Regents, as reported by the San Antonio Express-News/Houston Chronicle.

The draft of the report, obtained by the San Antonio Express-News/Houston Chronicle, states Hall released student information in violation of federal privacy acts. The report states he manipulated the House investigation and coerced witnesses.

The draft of the report — written by Rusty Hardin, general counsel for the committee, and his law firm — said Hall continued to undermine the reputation of UT and President William Powers Jr., even after the committee asked him to stop, according to reports from the San Antonio Express-News/Houston Chronicle.  

According to the San Antonio Express-News/Houston Chronicle the report includes copies of emails Hall sent to members of the board stating Powers' termination would be easy to overcome.

The House Committee on Transparency in State Agency Operations has been investigating Hall since July 2013 for potentially overstepping his duties as a regent. He has been accused by some members of the state legislature as conducting a “witch-hunt” against Powers. 

According to testimony from Kevin Hegarty, executive vice president and chief financial officer at UT, Hall filed open records requests for over 800,000 pages of information from UT. System officials, including outgoing UT System Chancellor Francisco Cigarroa, have said the actual number of pages is closer to 100,000.

Last November, the transparency committee heard testimony from Francie Frederick, general counsel for the Board of Regents. Frederick said Hall was mistakenly given access to private student information through his wide ranging open records requests.

In her testimony, Frederick said regents can have access to information protected by the Family Educational Rights and Privacy Act if they have a valid, job-related reason to see it. According to the draft of the report, the committee determined Hall did not have the appropriate reasons for seeking this information.

Philip Hilder, outside counsel to the System, submitted a report to the transparency committee in January, stating there was “no credible evidence” Hall violated any state laws regarding the release of data. In his report, Hilder said Hall requested all information protected by FERPA be redacted from the documents, but UT failed to completely remove all potentially problematic information when providing Hall with the requested documents.

Tensions between Powers and members of the board have been ongoing since 2011, when Powers asked Larry Sager, former dean of the School of Law, to resign after concerns arose regarding the foundation's forgivable loan program. Powers said he was unaware Sager awarded himself a $500,000 loan through the program, while Hall claimed he had evidence Powers was aware of the forgivable loan but chose not to take action. Powers has denied these claims.

In Feburary, Cigarroa announced he will be resigning as chancellor. Cigarroa said his decision to resign had nothing to do with the existing tensions between Powers and the board, although an email sent to Cigarroa by board Chairman Paul Foster suggested Hall accused Cigarroa of not doing his job weeks before Cigarroa announced his resignation.

On Feb. 6, the State of Texas authorized the payment of $157,803 to Rusty Hardin — general counsel for the House Select Committee on Transparency in State Agency Operations — for his work in the committee’s investigation into the actions of UT System Regent Wallace Hall, according to invoices provided from the Texas Legislative Council. 

Hardin originally billed the state $163,302 for his work from August to October of last year, but the state contested certain charges, including several for “air flight insurance,” marked at just more than $20. Hardin originally billed $508 for dinner at an Italian restaurant, but later requested to cancel the charge. 

The House Committee is trying to determine whether Hall overstepped his duties as a regent after he filed open record requests with the University for more than 800,000 pages of information. Some state legislators have accused him of conducting a “witch-hunt” against President William Powers Jr. 

At one committee hearing in November, UT System lawyers testified Hall was mistakenly given access to private student information — possibly in violation of federal privacy laws — which he subsequently shared with his private attorney. During testimony, Francie Frederick, general counsel for the Board of Regents, said regents must have a valid, job-related reason to see protected information.

“I’m not a FERPA expert, but my understanding is that the regent must have a legitimate educational interest to see FERPA [documents], something related to the regent’s duties,” Frederick said. 

At the same hearing, State Rep. Trey Martinez Fischer, D-San Antonio, requested a review and response from the UT System regarding the potential violation and motioned to have Hardin review Hall’s actions.  

Phillip Hilder, outside counsel to the UT System, submitted a report to the committee stating there was “no credible evidence” that Hall violated any state or federal laws regarding information protection. Hilder billed the state nearly $200,000 for his contributions from September to November of last year, according to reports from The Dallas Morning News.

Hardin has yet to submit his report on Hall’s potential violation of privacy laws, but State Rep. Carol Alvarado, D-Houston and co-chairwoman of the committee, said she is looking forward to his findings.

“We appreciate [the System] getting this to us in a timely manner, and I’m looking forward to reviewing the main report from our own general counsel [Hardin],” Alvarado said.

In a report released earlier this week, private legal counsel representing the UT System concluded there was “no credible evidence” that Regent Wallace Hall violated a state law regarding the protection of confidential information. 

Philip Hilder, outside counsel to the System, submitted a report outlining his conclusions to the House Select Committee on Transparency in State Agency Operations on Monday. The committee is investigating Hall to determine whether Hall overstepped his duties as a regent and whether he should be recommended for impeachment. 

Hall has been accused of conducting a “witch-hunt” against President William Powers Jr. after he filed open-records requests with the University for more than 800,000 pages of information. 

At one committee hearing in November, UT System lawyers testified Hall was mistakenly given access to private student information — possibly in violation of federal privacy laws — which he subsequently shared with his private attorney. Francie Frederick, general counsel to the UT System Board of Regents, said regents are only allowed to view documents with information protected by the Family Educational Rights and Privacy Act — known as FERPA — if the regents have a “legitimate educational purpose” for doing so.

At the same hearing, State Rep. Trey Martinez Fischer, D-San Antonio, requested a review and response from the UT System regarding the potential violation. Martinez Fischer also motioned to have Rusty Hardin, legal counsel to the committee, review Hall’s actions in sharing confidential documents and determine whether Hall committed a crime.

In his letter, Hilder said Hall requested all information protected by FERPA be redacted from the documents, but UT failed to completely remove all potentially problematic information when providing Hall with the requested documents. Hilder concluded Hall did not violate privacy acts because the University “never determined that Regent Hall did not have a legitimate educational interest” in viewing the information. 

“Regent Hall specifically asked that documents with potential FERPA information be withheld,” Hilder said. “However, when potential FERPA documents were provided by UT-Austin, in response to a regental information request, issues surrounding UT-Austin’s admissions process came to Regent Hall’s attention.”

Hilder said the role of a regent includes maintaining admissions standards consistent with the mission of institutions in the UT System, so, once Hall read the documents in question and identified potential issues with the admissions process, he would have an educational purpose. 

In the letter, Hilder said Hall did not violate FERPA when he disclosed the emails because UT did not intend to give Hall access to the information, and Hall did not intend to receive it, demonstrated by his request for all information protected by FERPA to be redacted. 

State Rep. Carol Alvarado, D-Houston and co-chairwoman of the committee, said she is glad the System followed the committee’s request by submitting a report. 

“We appreciate them getting this to us in a timely manner, and I’m looking forward to reviewing the main report from our own general counsel [Hardin],” Alvarado said.

Francie Frederick, a member of the general counsel for the UT System Board of Regents, testified on the ongoing investigation of Hall’s actions as a regent Tuesday morning. In her testimony Frederick explained how Hall shared emails with FERPA-protected information. 

Photo Credit: Jonathan Garza | Daily Texan Staff

During the complex process required to fulfill Regent Wallace Hall’s massive open records requests to the University, Hall was mistakenly given access to private student information — possibly in violation of federal privacy acts — according to testimonies of several UT System lawyers at a House hearing Tuesday.

Testimonies were given as part of the House committee’s ongoing investigation into the recent behavior of Hall, trying to determine if he overstepped his boundaries as regent.

In her testimony, Francie Frederick, who serves as the general counsel for the UT System Board of Regents, said regents must be “diligent in seeking information.” If a regent requires information protected by the Family Educational Rights and Privacy Act, they must have a valid, job-related reason in order to see it, Frederick testified.

“I’m not a FERPA expert, but my understanding is that the regent must have a legitimate educational interest to see FERPA [documents], something related to the regent’s duties,” Frederick said. 

Frederick said over the course of reviewing documents, Hall came across a chain of emails he should not have been allowed to see.

“It had not been determined in advance that [Hall] had legitimate educational interest,” Frederick said. “No determination was made, [the emails] were in the files, and he saw them.”  

According to Frederick, Hall saw the emails after a series of untraditional moves were made in order to fulfill his “massive requests for information.” Because Hall’s requests were so large, University employees turned documents over to System lawyers with the understanding that System employees would redact private information. In her testimony, Frederick said the System employees failed to redact such information in at least a few cases.

“If I were replaying this, we would not hand one document to Regent Hall before someone in my office actually looked at it,” Frederick said. “I think we failed him by allowing this to happen.”

Frederick said her office could not have foreseen the problems that arose as a result of the unexpectedly sizeable requests.

“I don’t think when it started out there was any intention to be disruptive,” Frederick said. “I don’t think anyone could’ve predicted the volume and the spin-off requests.”

Frederick said regents are legally barred from sharing protected documents with outside parties, even if they have demonstrated educational purposes. Despite this legal barrier, Frederick said Hall shared emails containing FERPA-protected information with his private attorneys. Though Hall was required to return the emails, no other steps were taken.

State Rep. Trey Martinez Fischer, D-San Antonio, motioned to have Rusty Hardin, legal counsel to the committee, review Hall’s actions in sharing confidential documents and determine whether Hall committed a crime. The motion passed unanimously.

“I take it they want us to look at and to see if it’s a matter that ought to be referred to prosecuting authorities,” Hardin said after the hearing. 

Barbara Holthaus, the UT System’s senior attorney and privacy coordinator, said FERPA regulations are not always clearly defined. According to Holthaus, UT System handled Hall’s exposure to information protected by FERPA in the correct manner. 

“The remedy under FERPA is to make a concerted effort to get the document returned, ascertain that you have gotten all copies of it and remind the individual that it was given to them in error,” Holthaus said. “The nature of FERPA is that it’s very confusing … FERPA is not a black and white kind of proposition.”

In his testimony, Daniel Sharphorn, general counsel for the UT System, directly contradicted a statement made by Kevin Hegarty, chief financial officer and custodian of records at UT.  

At the first committee hearing, Hegarty said the UT System denied him the opportunity to seek outside counsel while his office was dealing with Hall’s requests. Sharphorn denied this claim at Tuesday’s hearing.

“I went through every email that I have, and I asked one of our office assistants to do the same,” Sharphorn said. “There was nothing in our systems where Mr. Hegarty was asking for outside counsel.”

Sharphorn also provided an explanation for reminding Barry Burgdorf, who resigned as general counsel in April, that attorney-client privilege was still in effect before his testimony in October. 

Sharphorn said he reached out to Burgdorf at Hall’s request.

“I did not think of [Hall’s request] as a directive,” Sharphorn said. “I did it because he was right.”

At the end of the meeting, the board unanimously voted to issue subpoenas to Powers and UT System Chancellor Francisco Cigarroa. Their testimony is scheduled for Dec. 18. 

Correction: An earlier version of the story misattributed a quote about reviewing a motion passed by the committee. Rusty Hardin, legal counsel to the committee, said the quote.

Photo Credit: Jonathan Garza | Daily Texan Staff

Moving forward with its investigation into UT System Regent Wallace Hall, the House Select Committee on Transparency in Stage Agency Operations decided Hall’s attorneys would not be allowed to cross-examine witnesses during the upcoming hearings.

The decision, which came after the committee spent more than 1.5 hours in executive session at its meeting on Monday, was based on advice from special counsel Rusty Hardin. Hardin, who was hired by the committee in late August, explained that no cross-examination should take place since the committee is not trying Hall.

“We intend to make this as absolutely fair as we can to Mr. Hall,” Hardin said. “This is an investigation, not a trial. Our investigation may determine that nothing is to happen after this.”

If the committee decides to proceed with impeachment after the hearings process, articles of impeachment would be presented by Hardin to the Texas House of Representatives. If a majority in the House votes in favor of charging Hall with impeachment, the Senate would conduct a trial in which Hall’s attorneys would be allowed to cross-examine witnesses. A two-thirds vote in the Senate would be required to remove Hall.

At the meeting, Rep. Dan Flynn, R-Canton and committee co-chairman, said the committee would be investigating whether Hall left off several state and federal lawsuits on his original application for the regent position, disclosed sensitive student information to the public and overstepped his authority as a regent. The committee began investigating Hall in July after he began filing massive open records requests to the University and state legislators accused him of working with his fellow regents to oust President William Powers Jr.

Allan Van Fleet, one of Hall’s attorneys, criticized the committee’s decision and the way it handled the meeting.

“Today, we heard the committee spend 10 minutes of platitude on transparency and spend two hours in secrecy,” Van Fleet said. “It’s important that the full story come out, not just the limited amount Mr. Hardin may decide is relevant.”

After the meeting, Van Fleet defended his client against the accusations that the committee will investigate, and said Hall’s massive open records requests were not part of a larger plan to get Powers fired.

“[Hall] is not after President Powers,” Van Fleet said. “What he is after is a UT System that is fully transparent [and] that is open to people of Texas. Along the way, if there be legislators, if there be other officers in UT who should have done their job as good as Wallace Hall has been doing his, then the chips will fall as they are.”

Flynn added that the committee would keep its investigation focused on Hall for the time being, though Hall’s attorneys have indicated that they feel the focus should be on documents Hall has obtained from the University.

“We are not investigating the University of Texas at this time,” Flynn said. “However any information that does come out by the committee, it will be disclosed in the spirit of the transparency of this committee.”

If impeached, Hall would be the first executive appointee in the state’s history and third official overall to be removed from office. Hardin noted that cross-examination was allowed in 1917 during the investigation into Gov. James Ferguson, but not in the investigation into Judge O. P. Carillo in 1975.

The House Select Committee for Transparency in State Agency Operations hired Houston attorney Rusty Hardin to aid its investigation into UT System Regent Wallace Hall. 

Hardin, known for defending high-profile clients such as baseball player Roger Clemens, will act as special counsel in an investigation that may result in Hall’s impeachment. Brad Beers, a former law firm partner of Hardin’s, said the committee likely chose Hardin because of his experience and independence in the courtroom.

“Rusty is very well known and has experience of handling matters involving investigations and prosecutions, including matters involving public officials,” Beers said. “He’s well regarded and viewed as being independent. He’s willing to take on popular or unpopular causes.”

Beers also noted Hardin’s recent work as special prosecutor in the Williamson County court of inquiry that found former District Attorney Ken Anderson withheld evidence in the wrongful conviction of Michael Morton. Because of Anderson’s actions, Morton spent 25 years in prison for the murder of his wife before being released earlier this year. Hardin, who worked as an assistant district attorney in Harris County before going into private practice, also worked as chief trial counsel under Bob Fiske and Ken Starr in 1994 on the Whitewater Independent Counsel’s Office investigation into
Bill Clinton.

Transparency committee co-chair Carol Alvarado, D-Houston, explained the hiring in a statement.

“The serious nature of this investigation requires the use of a respected, accomplished attorney like Mr. Hardin,”
Alvarado said.

During the legislative session, state legislators accused Hall of participating in a “witch-hunt” to remove UT President William Powers Jr. after Hall made several large open records requests to the University. In May, The Texas Tribune reported Hall did not mention several lawsuits he was involved in on his regent application. In June, Texas Speaker of the House Joe Straus, R-San Antonio, gave the transparency committee the task of investigating Hall by expanding its jurisdiction to include executive appointees.

If the transparency committee determines Hall’s actions warrant impeachment, Hardin will help draft the articles of impeachment and present them before the House of Representatives. If a majority in the House votes in favor of charging Hall with impeachment, it would be up to the Senate to conduct a trial and remove Hall by another two-thirds vote. Hall would be the first state appointee to be impeached in the state’s history.

Hall did not comment on the transparency committee’s decision to hire Hardin.

The committee indicated it would begin conducting hearings in September. Committee co-chair Dan Flynn, R-Canton, said Hall would likely be one of the first witnesses called to testify before the committee.

Photo Credit: The Associated Press

WASHINGTON— Roger Clemens’ lawyers tore into the prosecutors’ case against the former pitching great during closing arguments Tuesday, attacking the government for bringing the matter to court in the first place and mounting one last assault against Clemens’ chief accuser.

“This is outrageous!” said attorney Rusty Hardin, his face reddening as he pounded the podium.

Both sides received two hours to sum up their arguments before a jury of eight women and four men that will decide whether Clemens lied to Congress in 2008 about performance-enhancing drugs and several related matters.

“He chose to lie; he chose to mislead; he chose to provide false statements, to impede Congress’ legitimate investigation,” prosecutor Gil Guerrero said. “Now it’s your turn to hold him accountable on every single count. You are the final umpires here.”

Clemens is charged with perjury, making false statements and obstructing Congress. The heart of the charges center on his repeated denials that he used steroids or human growth hormone. Jurors were expected to begin deliberations later Tuesday, following 26 days of testimony over more than eight weeks.

“When you take that oath, you’ve got to tell the truth,” Guerrero said in a packed courtroom that included Clemens’ wife and four sons.

Guerrero accused Clemens of coming up with a “cover story” about the injections received from his former strength coach, Brian McNamee. Clemens told Congress the injections were for vitamin B12 and the local anesthetic lidocaine, but McNamee testified that he injected the pitcher with steroids and human growth hormone.

Guerrero said Clemens, one of the most successful pitchers of his generation and a winner of an unprecedented seven Cy Young Awards, told the lies “so as not to tarnish his name.”

Clemens’ lawyers spent much of the trial attacking McNamee’s credibility, and even McNamee acknowledged that details of his story evolved over time. During closing, Hardin produced a chart titled: “Brian McNamee’s testimony is admittedly not credible.” The chart included more than two dozen times in which Hardin said McNamee either lied outright or said something that resulted from a “mistake” or “bad memory.”

“Saying that Brian McNamee lies zero times,” Hardin said, “is kind of like calling the Grand Canyon a ditch.”

Guerrero conceded that McNamee is a “flawed man.”

“We’re not asking you to even like him,” Guerrero said. “Brian McNamee did a lot of things that aren’t nice, and we know that.”

But, Guerrero argued, that made McNamee the perfect partner for Clemens’ alleged use of steroids and human growth hormone, substances that Clemens wouldn’t be able to receive from, say, a team doctor or head athletic trainer.

“Brian McNamee would do whatever Roger Clemens wanted,” Guerrero said. Later, Guerrero said Clemens tossed McNamee “by the wayside.”

Guerrero honed in on one defense witness, Clemens’ wife, Debbie. She testified that she had received a shot of human growth hormone from McNamee without Clemens’ knowledge, contradicting McNamee’s version that the pitcher was present for the shot. Guerrero said it stretched credibility to believe that Debbie Clemens allowed McNamee to come into their master bathroom without her husband’s knowing about it. One of the false allegations Clemens is charged with is that his wife was injected with human growth hormone without his prior knowledge.

The prosecutor said that Clemens should have told McNamee, “What are you doing in my master bathroom with my wife?!”

The reason he didn’t, Guerrero said, was that “he was there that day.”

The prosecutor also said that another false statement to Congress, about whether Clemens was at a pool party hosted by then-teammate Jose Canseco on June 9, 1998, was important because it occurred near the time the government alleges Clemens began taking steroids.

He noted that Debbie Clemens admitted during her testimony that the family stayed at the Canseco house the night before.

“It’s not just the party, folks,” Guerrero said. “He was there the whole time!”

Prosecutors have connected Clemens’ alleged attendance at the party to steroid use in vague terms: McNamee testified he saw Clemens talking at the party to Canseco, identified to the jury as a steroid user, and a third man, just days before Clemens allegedly asked McNamee for a first injection of steroids.

Hardin was indignant that the government would even ask for a felony conviction centered around whether Clemens was at someone’s house on a particular day. He said some of Clemens’ wayward statements to Congress simply came from a man trying his best to remember.

“He’s a Cy Young baseball player,” Hardin said. “Not a Cy Young witness. ... He’s a human being just like everyone else in here.”

Hardin again produced a map showing that the government conducted 235 interviews with 179 people involving 93 federal agents or officers — all in the name of trying to find more evidence that Clemens used steroids and human growth hormone.

“Not one single blankety-blank piece of evidence after all of this effort. ... Not one single bit of evidence for four-and-a-half years of anybody other than Brian McNamee connecting Roger Clemens to steroids and HGH,” Hardin said. “My God, if you’re going to go to this kind of effort to prove this man lied to Congress, you’d better come home with some kind of bacon. Not a zilch!”

Earlier Tuesday, U.S. District Judge Reggie Walton said he would allow jurors to consider the alleged false statement about Clemens’ alleged presence at Canseco’s house, although the judge indicated he might reconsider the matter if there’s a guilty verdict because of questions as to its relevance.

“I will permit it to go the jury, although I have some concerns,” Walton said before jurors entered the room.

Guerrero also tried to bolster the testimony of former Clemens teammate Andy Pettitte, who testified that Clemens said he had used human growth hormone — but then agreed under cross-examination it was fair to say there was a “50/50” chance he misunderstood Clemens.

“He didn’t want to testify against his friend,” Guerrero said. “No way. He played with him ... They were almost brothers.” The prosecutor said that Pettitte “was jumping at the opportunity under cross-examination to say maybe 50/50.”

Clemens’ other lawyer, Michael Attanasio, told the jury that Pettitte’s “50/50” memory “is not evidence of anything” and shouldn’t be considered.

Attanasio also attacked the physical evidence produced by McNamee, who said he saved the needle and other waste from a 2001 steroids injection of Clemens and stored it in and around a beer can for some six years. Some of the waste was shown to have Clemens’ DNA.

“There’s no doubt,” Attanasio said, “the medical garbage is garbage.”

Argued Guerrero: “If McNamee was trying to fabricate this evidence, don’t you think he would have done a better job of it?”

After Hardin’s presentation, the court recessed for lunch, and Clemens and Hardin embraced for several seconds. Attanasio hugged Debbie Clemens a few feet away.

Clemens walked down the hallway with his four sons in tow, with one of the sons draping his arm around his father.