The history of the civil rights movement is usually told in stories from places such as Topeka, Little Rock, Selma, and the Lincoln Memorial in Washington D.C. These were places where persons seeking human dignity and equal rights marched, protested and spoke in support of a concept that had been declared self-evident two centuries before—that all men are created equal. Few lawyers entering our courthouse complex today know that it also was the site of a battle in the struggle for civil rights.

Today, the basement of the Harris County Juvenile Justice Center houses a few offices and a small sandwich shop. Visitors see no trace of the Courthouse Cafeteria, which operated from the building's opening until 2003, or of the dramatic confrontations that took place there. At issue was whether all citizens of Harris County had a right to eat there. The dispute involved a four-year court battle, two physical confrontations and a group of courageous young lawyers who took on the government for the right to be treated as equals within the walls of a courthouse where they would spend a career seeking justice for their clients..

The "New" Criminal Building
County Judge Bob Casey was a visionary public servant first elected to that office in 1950.[1] Upon his swearing in, he took on the pressing need for a new criminal courts building. The "old" criminal courts building dated from the 1920s and contained only three courtrooms. Casey accurately predicted that the burgeoning growth of Harris County would prompt creation of additional courts. Before his election, Harris County voters had approved $6,000,000 worth of courthouse bonds to renovate the 1910 Courthouse and build a new Criminal Courts Building.[2] Casey foresaw that the cafes surrounding the courthouse would give way to parking lots, and so early in the design process, the architect planned for a cafeteria in the basement of the building.

When the building opened on July 6, 1953, the attorneys, courthouse employees, jurors and visitors were dazzled by the modern facilities in the building. For the first time, court proceedings could take place in air-conditioned comfort. Bathrooms and water fountains, which had been inadequate in the old building, were abundant. The courtrooms were spacious. The basement café was large, and its food was thought to be the equal of any dining establishment near the courthouse.[3]

W. F. "Dee" Derrington won the contract to operate the cafeteria. The terms of the lease were simple: Derrington was to pay the county five hundred dollars a month, plus twenty percent of the annual gross income. In the first year of operations, Derrington apparently grossed fourteen thousand dollars. There was one additional understanding with the county not set out explicitly in the lease –the cafeteria was not to serve African-Americans.

A Man of Character
Matthew Wesley Plummer was a native of San Antonio whose father was born into slavery. During World War II, he was a flight instructor at the Tuskegee Army Airfield. He trained the "Tuskegee
Airmen" of the 99th Fighter Squadron, a group of pilots that gave lie to the segregationist myth that African-Americans lacked the ability to serve their country. After the war, Plummer finished his college degree at Tuskegee Institute and then graduated in the first class of the law school at the Texas College for Negro Students in 1952.[4] According to anyone and everyone who ever knew him, he was a gentleman first, last and always.

While waiting for his bar examination grades, Plummer accepted a position as an investigator for the Harris County District Attorney's Office. He was the first African-American employee in the history of that office.

A Lunchtime at the Courthouse
On August 27, 1953, several weeks after the new courthouse opened, Plummer and three friends–George Nelson, Jim Roberts and Lillie Alonzo–went to the basement of the building and entered the cafeteria. Their wishes were simple: They wanted to eat lunch. No one had told them it was a "Whites only" business, and there was no sign to that effect on the door.[5] They were allowed into the line and ordered lunch. When they reached the cashier Derrington, the owner/manager, approached them, and "forcibly removed their food from their trays, and informed said plaintiffs that...the restaurant did not, and would not serve colored people."[6] Following the mantra of Mahatma Gandhi, and the later teachings of Martin Luther King, Jr., Plummer and his guests peaceably left.

It is clear that Plummer immediately went to see some of his classmates who had already passed the bar. The next day, a lawsuit was filed in the Southern District of Texas seeking desegregation of the cafeteria. The petition shows the attorneys on the case were Henry Doyle and Francis Williams, great lawyers who would become legends of the bar as well as renowned judges. Along with Plummer, they were founders of the Houston Lawyers Association,[7] which promoted professional and social interaction among African-American lawyers at a time when they were excluded from other bar organizations.[8]

Proceedings in Federal Court­—Pleadings and Trial
The lawsuit was filed against County Judge Casey, in his official capacity as the presiding officer over the Harris County Commissioners[9] Court, and each of the commissioners. Derrington was also named as a party. The gravamen of the complaint was that the cafeteria was on public property in a building that had been built with tax dollars and that exclusion of a class of people on the grounds of race was in violation of federal constitutional and statutory provisions. It is worth noting that the suit was filed the year before the United States Supreme Court announced its decision in Brown v. Topeka Board of Education.[10] This is significant because the insidious "separate but equal" doctrine of Plessy v. Ferguson[11] was still viable when the suit began.[12] Had the Plaintiffs sought a temporary injunction, or even an expedited trial, the applicable law might have been different.

The case was assigned to the docket of Judge Ben Connally. In 1953, Judge Connally had served as a judge for four years. He came to the bench after an active career as an attorney. Judge Connally started his law career as an attorney at Sewell, Morris, Taylor and Garwood, becoming a name partner in the firm.[13] After service in the U. S. Army Air Corps during the war, he resumed his practice as a partner at Butler, Binion, Cook and Knapp until becoming a judge. Judge Connally's political and legal pedigree would lead one to conclude that he was a conservative, business-oriented judge. The Plaintiffs might have wished they had drawn another judge, although there were some judges who would have been perceived as more conservative.

Judge Connally's docket sheet indicates that no discovery, motion practice or other judicial activity took place between the time the case was filed in August 1953 and a pretrial conference he convened on May 17, 1955. No one present at that pretrial conference is alive today, but the judge's docket sheet shows Judge Connally's effective judicial presence. His notes reflect that:
Parties to stipulate on all facts save as to whether County is responsible for operation of cafeteria (as Pf's contend) or whether, under terms of lease, only lessee is responsible. Stipulation to be forthcoming by 5/23/55.

On August 8, 1955, the case was tried on those stipulations. Neither the records of the trial court nor of the Fifth Circuit reflect the filing of a statement of facts or other trial transcripts, so it is possible Judge Connally heard no evidence other than the stipulations. Whether he did or not, the issue of law before him was clear: May a governmental entity lease public property to someone who uses that facility to discriminate on the basis of race?

By our standards today, this seems elementary. But at that time, it was seen as legal for private businesses to exclude any potential customer they wished. That did not change until the United States Congress used the Interstate Commerce Clause to mandate the end to "private" discrimination in the Civil Rights Act of 1964.[14]

The Ruling
On December 29, 1955, Judge Connally issued his ruling.[15] It began with a recitation of the stipulated facts and initially gave no indication of the outcome of the case. He made it clear that the county leased the premises to Derrington, and thereafter claimed no right of control of the premises. The essence of the findings is contained in the following paragraph:
The cafeteria is patronized principally by Courthouse employees, jurors, and others having business in the building. It has always been open to the general public as an eating place. On August 27, 1953, the plaintiffs undertook to purchase food in the cafeteria and were not permitted to do so by the lessee and manager, the Defendant Derrington. His action in this respect was due solely to the fact that the plaintiffs were members of the colored race. With limited and insignificant exceptions, Derrington has operated the cafeteria since the inception of his lease for patronage only by members of the white race. He expects to continue to do so unless and until restrained by Court action.[16]

Judge Connally then noted the recent cases that required public facilities to be available to all and concluded "(t)here can be little doubt but that plaintiffs are entitled to relief against Harris County." Protecting his appellate record in the event a reviewing court could find any viability in Plessy v. Ferguson, Judge Connally wrote: "Having undertaken to furnish eating facilities to its citizens, the County, so far as it is able, must afford comparable and substantially equal treatment to all, without regard to color. The County has not established, nor is there maintained, any comparable eating facility in the Courthouse available to Negroes."

Brushing aside Derrington's argument that he was a private vendor, Judge Connally concluded that "(t)he operation of the cafeteria here is too close, in origin and purpose, to the functions of the County government to allow the concessionaire the right to refuse service without good cause." Accordingly, the opinion said that an injunction would issue against Derrington and the Harris County defendants.

Judge Connally's ruling was met with a plethora of post-trial motions. Motions for new trial (by the Defendants) and for monetary damages (by the Plaintiffs) were denied. The Defendants gave notice of appeal a month before the final judgment was signed, and it is possible the appeal that would follow was without legal effect. In hindsight, the Plaintiffs would eventually be glad they did not raise any procedural defense.

Mob Rule at the Courthouse
The Plaintiffs understandably thought they had won a great legal victory. A group of young lawyers had taken on the government of the largest county in Texas and won before a judge who was thought to be conservative.

Now they assumed they could enjoy the fruits of four years' labor. According to an interview with Matthew Plummer, "We were counting the days after the denial of the rehearing to go in and have a cup of coffee." They even took the precaution of going back to Judge Connally to get a new order compelling their right to enter effective immediately. They quickly learned that the forces of hate had not yet played their last card.

On April 10, 1956, Matthew Plummer again entered the cafeteria, along with the original plaintiffs and his attorneys. They were met by a number of segregationists, led by a man identified in the next day's Houston Chronicle as J. M. Wren. As Plummer entered, Wren shouted out: "We don't want them in the cafeteria. If we've got to have a riot, let's have it. I'm not going to have Negroes here." He then reportedly aimed several punches at Plummer, apparently making contact at least once. Plummer did not fight back. He simply proceeded to the Justice of the Peace Court on the third floor and filed assault charges against Wren.[17]

Even though he had been a party to litigation for four years, Derrington chose to close the cafeteria rather than serve the Plaintiffs. He was quoted as saying he would close the cafeteria to everyone rather than serve Negroes.[18] Henry Doyle asked Derrington, "Would you have served Negroes if there had been no disturbance?" Derrington's reply: "No. I'm closing to everyone." Doyle responded, "We anticipated this! The petition has already been prepared."

The petition charged Derrington with contempt of court. Facing motions for contempt brought against Derrington by the Plaintiffs as well as additional motions to reconsider his rulings, Judge Connally stayed enforcement of his order pending appeal to the Fifth Circuit, upon the posting of a $500.00 supercedeas bond.

The Appeal
All Defendants appealed to the Fifth Circuit Court of Appeals. The case was assigned to a panel of Chief Judge Joseph Chappell Hutcheson of Houston, Judge Richard Rives of Alabama, and Judge Elbert Tuttle of Georgia. Justices Rives and Tuttle were later known as two members of the "Fifth Circuit Four," a group of judges who made progressive rulings on civil rights throughout their tenure.[19]

The Fifth Circuit quickly took up the case and issued an opinion on December 29, 1956, only seven months after Judge Connally signed the final judgment.[20] Writing for the Court, Judge Rives praised Connally, calling his opinion "thoughtfully considered."

Reiterating the legal point analyzed by the trial court, the Fifth Circuit wrote: "[T]he decisive question is whether the action of the lessee, Derrington, is merely private conduct or may fairly be said to be conduct of the County and thus State action within the inhibition of the Fourteenth Amendment." Since all agreed that if the county ran the cafeteria, it could not discriminate, the justices wrote that "in rendering such service, the lessee stands in the place of the county." The Plaintiffs had won again.

Derrington was unbowed. He told a reporter for the Houston Post, "I'm going to appeal it to the Supreme Court and the United Nations." All four county commissioners backed Derrington. One said integration of the cafeteria would cause it to "cease to be of any benefit to employees or the public." Another said, "The only Negroes who would use the cafeteria would be those interested in winning the argument." Only Judge Casey appeared reluctant to carry on the fight. He opposed renewing Derrington's lease during any further appeal.[21] Nonetheless, an appeal was taken to the United States Supreme Court, perhaps only to delay enforcement of the order. The appeal was short lived. The high court denied the application for a writ of certiorari on April 1, 1957.

"The Private Club"
Derrington, having lost in every court in the land, did not give up. Rather than serve the Plaintiffs, he announced on April 1, 1957 that he was closing the restaurant. That same day, he went to commissioners court and got permission to amend his lease, converting the cafeteria into "a private club." Membership was limited to county employees and their guests. The Harris County Employees' Credit Union agreed to issue its members cards that would allow a person to enter and bring guests.

According to a later article in the Houston Chronicle, the effect was that the cafeteria remained segregated. Although there were African-American employees working for Harris County in the late 1950s, none ever attempted to enter. According to a prominent assistant county attorney at the time, "It was well known among the Black employees that they could go in and eat there, but they would have been fired before the day was over if they had." Meantime, the rule that admission was limited to cardholders was honored (for White patrons) more in breach than in observance.

The Fight Shifts to Commissioners Court
Derrington's lease came up for renewal by the Harris County Commissioners Court every two years. After his original lease in 1953, there was never a competitive bid for the right to run the business. Starting in 1959, a motion was made every two years to amend the lease to require integration. Derrington apparently warned individual commissioners that he would refuse to operate the cafeteria before he would desegregate. His public position was that he would lose money if required to serve all, because many whites would refuse to patronize the cafe. In the 1959 renewal, only newly elected County Judge Bill Elliott supported service for all, and his motion died for lack of a second. In 1961, Commissioner V. V. "Red" Ramsey joined Elliott. It is unclear the extent to which the fights over lease renewals were because of the absence of a competitive bid process or a desire to require that all the citizens of the county could be served. It is clear that Derrington had three allies on the Commissioners Court who would vote to allow him to continue to operate the cafeteria as he wished.

Preparing for another lease renewal in 1963, Derrington and the Commissioners Court were met with a renewal of the suit in August 1962. George Washington, an attorney with the firm Washington, King and King,[22] filed a motion for further relief that included a request for contempt of court proceedings against all Defendants. By now, it was clear that the trend of the law was toward equal rights for all, and no one could mistake Judge Connally as a judge who would fail to enforce those rights.[23] On the day he was served with the contempt citation, Derrington announced that he was "tired of fighting" and that the cafeteria would be open to all, effective immediately.[24] An alternative, and probably more realistic, explanation for the change of heart was given by former County Building Superintendent Mac McCain. In an oral interview he gave several years before his death, he said: "'Squatty' Lyons[25] went to the cafeteria in the basement of the Criminal Courts Building and Dee Derrington had the attitude he wasn't going to serve. Squatty walked down there, and they were good buddies and all, but he walked down and told him, 'Dee, I'm giving you an order. You better knock it off or we are going to kick you out of here. Because we are not going for that any more. You take everybody that comes in here.'"[26]

The next day, August 16, 1962, the cafeteria was open to all. The Plaintiffs had won their nine-year effort to eat lunch in a building whose very purpose was to further justice for all.

What Happened to Everyone?
Matthew Plummer enjoyed a long and successful career as an attorney. Among the many cases he handled was Muhammad Ali's draft evasion case in federal court during the Vietnam War. In 1986, Governor Mark White appointed him to serve as Judge of the 133rd District Court. Near the end of his life, he and other surviving Tuskegee Airmen received the Congressional Gold Medal in recognition of their service to our country. He died in October 2007.

The attorneys who brought the suit for Plummer also went on to illustrious careers. Henry Doyle served as a municipal court judge for the City of Houston. In 1978, Governor Dolph Briscoe appointed him to the First Court of Appeals. He was elected to that position in 1980 and retired in 1982. Francis Williams became judge of County Criminal Court at Law Number Four in 1985. Among the cases he handled as an attorney was the Houston Independent School District discrimination case before Judge Connally.

Judge Ben Connally became a beloved and revered jurist in his 25 years on the bench. In 1962, he became the Chief Judge for the Southern District of Texas and continued in that position until he assumed senior status in December 1974. Sadly, he died less than a year later after suffering a heart attack during a hunting trip near Falfurrias, Texas.

Dee Derrington's claim that the cafeteria could not make money if all were treated with respect and dignity apparently turned out to be untrue. He continued to seek biennial renewals of his lease and ran the cafeteria at a profit until his death in 1966. After he died, his wife continued to operate the cafeteria until 1971.

The cafeteria continued in operation until the building was renovated in 2003. In its later years, it became almost exclusively a place where the criminal defense bar hung out to tell stories of great trials they had, or might have, tried. Judge Jimmie Duncan was known to send his bailiff to the cafeteria looking for any lawyer foolish enough to be late for his docket call. Judge Duncan was well known for his desire to incarcerate tardy lawyers, regardless of their race, creed or color.

In Europe, the buildings used to house the judiciary are called "Palaces of Justice." This term dates back to a time and a system in which justice was something only the self-appointed lordly class could seek. In America, where our foundations are much more egalitarian, we call the buildings "Courthouses," reflecting a belief that it is a place where anyone can seek justice. It is inconceivable that a building whose reason for being is fairness could have an area in which many of its citizens were not allowed to enter. It is up to today's and tomorrow's lawyers to make sure that our courthouses are always kept open to all to seek justice.

Mark Davidson is a retired judge. He is currently assigned to hear all asbestos cases in the state as Multi-District Litigation Judge. In 2008, he was awarded the Robeson L. King Excellence in Education award by the Houston Lawyers Association.

Author's Note
The full story of the desegregation of the courthouse cafeteria would fill a book. Many details and characters were left out of this article. Many other facts cannot today be determined with any degree of accuracy. My goal in writing this article is not to condemn any individual, but to honor the nobility of those that fought for equal rights for all.

Thanks are due to those who helped make this article possible. James Plummer gave me many insights into his father's life and character. Judge David Hittner made it possible for me to have access to the court records from Plummer v. Casey. Elaina Butel and Gabriela Henriquez, law students at South Texas College of Law, found dozens of details in this article and assisted in its
editing.

Endnotes
1. Casey had previously served in the Texas House of Representatives from 1949-1950. After serving as County Judge for eight years, he was elected to the United States Congress, where he served until 1976. 2. An additional bond issue of $1,500,000 would ultimately be necessary to complete the building. 3. The cafeteria was covered in sea green ceramic tile. While it may or may not have been appetizing, it made the mold on the food less noticeable. 4. The school is now Texas Southern University's Thurgood Marshall School of Law. 5. I have vague memories of signs of this nature in Houston at a prominent retail store as late as the early 1960s. 6. Plaintiff's Original Petition, Plummer, et al v. Casey et al; Civil Action 7662; In the Southern District of Texas. 7. The other founders of the Houston Lawyers Association were Robeson L. King, Weldon Berry, Robert Hainsworth and A. M. Wickliff. 8. The Houston Bar Association was integrated in 1965 because of the efforts of its President, W. James Kronzer, Jr. 9. The commissioners were Phillip E. Sayers, V. V. "Red" Ramsey, W. Kyle Chapman and E. A. "Squatty" Lyons. 10. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). 11. Plessy v. Ferguson, 163 U.S. 537 (1896). 12. Even if "separate but equal" were still viable, it might have been a stretch to use it as a defense, because the county did not build a "separate" cafeteria in the building or anywhere else. 13. The firm would eventually become Sewell, Junell and Riggs and then Sewell and Riggs before merging with Gardere Wynne in 1995. 14. 42 U.S.C. §1981. 15. Plummer v. Casey, 148 F. Supp 326 (S.D. Tex 1955). 16. Id, at p. 328. 17. Following a jury trial before an all-white jury, the charges were dismissed. 18. Houston Chronicle, April 11, 1956. 19. The other two judges were Judge John Minor Wisdom and Judge John R. Brown. Rives and Wisdom were appointed by Democratic Presidents. Brown and Tuttle were appointed by Republican Presidents. All deserve to be in the panoply of American heroes. 20. Derrington v. Plummer, 240 F. 2d 922 (5th Cir. Tx. 1956). 21. Houston Post, December 30, 1956. 22. Washington would later join a law firm with Andrew Jefferson, to form the well-named firm Washington and Jefferson. 23. Judge Connally had also presided over the desegregation case involving the Houston Independent School District. It is said that he was prouder of his decision in that case than any other. 24. Houston Chronicle; August 17, 1962. 25. Harris County Commissioner, Precinct 4, 1944-1990. 26. From oral interview with J. M. "Mac" McCain, page 75. http://www.hctx.net/CmpDocuments/20/Oral%20History/OH02McCainFinalpdf.pdf; Harris County Archives.