In1996, Joseph Tydings was trying a case in the Lucius Bunton III Federal Courthouse in Pecos. Tydings, once a liberal U.S. senator from Maryland, represented Merco, the company shipping 260 tons of sewage sludge per day from Manhattan to the West Texas town of Sierra Blanca. Merco had sued Michael Moore and Sony TriStar, alleging that a humorous TV Nation feature on the train that to this day carries partially treated shit laced with industrial toxins from New York to Texas was libelous. As the trial began, Tydings announced he needed five days to put on his case. “Counselor, are you a bettin’ man?” Judge Lucius Bunton III asked. “Because if I were you, and I were a bettin’ man, I’d bet I could put this case on in two days.”
In the course of the trial, Bunton was gracious, assuring one juror that the school district where she worked would not withhold her pay for serving on the jury. He was folksy, correcting a young Dallas lawyer’s pronunciation of “creosote” bushes, then telling him not to worry: “Out here, we just call it greasewood.” And he was intimidating, at one time reducing to tears a young lawyer on the defense team who was making her first appearance in federal court.
At night, the judge held court in the bar of the Holiday Inn, where he stayed when he was presiding in Pecos. On the evening of the day he reduced the Fulbright & Jaworski lawyer to tears, he told her how to avoid being prosecuted for theft by check. “Never balance your checkbook,” he said, earnestly. If you don’t record your checks and keep a balance, he explained, you can’t be prosecuted for writing hot checks. For that reason, he never balanced his checkbook.
Conversation drifted toward Edwards Aquifer litigation. “All of this,” Bunton said, “is off the record.” He lamented that the same law had to be applied to arid West Texas and lush and waterlogged East Texas. He said he wished he could divide the state by judicial edict — using I-35 as the boundary — and impose one set of laws on the east and one on the west. He continued for an hour, discussing antecedents of water law in Texas, solutions to the state’s water crisis, and his concern that the Legislature wasn’t the place to solve it. A lawyer sitting with us said she should “get CLE [continuing legal education] credit for drinking with the judge.”
Yet Bunton allowed the jury to award a judgment that was a serious threat to the First Amendment. Hugh Kaufman, the EPA whistleblower who appeared in Moore’s “shit train” segment, was ordered to pay the plaintiffs $500,000. Sony Tri-Star would pay $5 million. All in punitive damages; actual damages were only one dollar per defendant. The decision was overturned at the Fifth Circuit. Yet it is for his ruling on the Edwards Aquifer that Judge Bunton will be remembered in Austin. Under attack by then-Attorney General Dan Morales and facing hostility from developers, Bunton ordered San Antonio, San Marcos, and Austin to limit the volume of water pumped from the aquifer. In doing so, he preserved endangered species — plant and animal — and imposed some limits on uncontrolled growth where the state and cities failed to do so. “We’re drawing a line in the sand,” shot back San Antonio Mayor Bill Thornton, an unremarkable, bloviating dentist inserted in office by developers. “We’re committed to go all the way to the Supreme Court to protect our rights to control our water … It’s time to think about human needs, not animal rights.”
“I think the Fifth Circuit will laugh at them,” Austin environmental lawyer Stuart Henry predicted. It did, and the state is a better place because of Bunton’s rulings. Lucius Bunton was complex, charming, intimidating, colorful — and as much a part of this state as are the greasewood bushes scattered across West Texas. He died of cancer on Jan. 18. If I were a “bettin’ man,” I’d wager that President Bush will not appoint anyone of Lucius Bunton’s stature to hold court in the Lucius Bunton III Federal Courthouse — or in the Holiday Inn bar in Pecos.
This article appears in Lost Austin I.