Brief for State Defendants-Appellees

    Or TEXAS g 

JIM NMATTOX 

ATTORNEY GENERAL May 19 1989 
b J 

Clerk, Fifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC Council #4434, et al. v. Midland County, Texas, 

No. 89-1189 

Dear Sir: 

Enclosed for filing in the above-referenced matter are seven 
copies of the Brief for State Defendants-Appellees’. Also enclosed are 

the two volumes of the record on appeal. 

Sincerely, 

= HE 
Renea Hicks 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 
(512) 463-2085 

ce: Counsel of record 

512/463 =-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548 

 



re Q 

  

bcc: Sherrilyn A. Ifill 

 



  

   No. 89-1189 
  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LULAC COUNCIL #4434, et al., 
Plaintiffs/Defendants-Appellees, 

VY. 

MIDLAND COUNTY, TEXAS, 
Putative Intervenor-Appellant. 

  

Appeal From The United States District Court 

Western District of Texas 

Midland-Odessa Division 

  

BRIEF FOR STATE DEFENDANTS-APPELLEES 

  

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

RENEA HICKS 
Special Assistant Attorney General 

JAVIER P. GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

May 19, 1989 Attorneys for State Defendants- 
Appellees 

   



    

STATEMENT REGARDING ORAL ARGUMENT 
  

State officials, who are official-capacity defendants in the trial court, 

are appellees in this appeal only on the limited question of whether the 

legal interest of a Texas county encompasses representation of the legal 

interests of state district judges in their official capacities who sit in that 

county. Insofar as that question is concerned, the law is sufficiently clear 

that the state officials do not believe that oral argument would aid the 

Court. 

 



TABLE OF CONTENTS 

STATEMENT REGARDING ORAL ARGUMENT 

TABLE OF CONTENTS 

INDEX OF AUTHORITIES 

STATEMENT OF JURISDICTION 

STATEMENT OF THE ISSUES 

STATEMENT OF THE CASE 

Course of Proceedings And Disposition 

In The Court Below 

Statement of Facts 

SUMMARY OF THE ARGUMENT 

ARGUMENT 

L. MIDLAND COUNTY HAS NO LEGAL INTEREST 

TO SUPPORT INTERVENTION OF RIGHT ON 
BEHALF OF STATE DISTRICT JUDGES IN 
THEIR OFFICIAL CAPACITIES 

A. Texas Counties Are Not Real Parties 

In Interest Insofar As Texas District 

Judges In Their Official Capacities 
Are Concerned... 

Midland County Failed To Demonstrate 
That The Interests Of State District Judges 

In Their Official Capacities Are Inadequately 
Represented By The Existing Parties To 
The Suit  



NO ABUSE OF DISCRETION OCCURS WHEN A 
TRIAL COURT DENIES PERMISSIVE INTERVENTION 

BECAUSE PROTECTION OF THE INTEREST ASSERTED 
RESTS WITH AN OFFICIAL ALREADY INVOLVED 

IN THE LAWSUIT, NOT WITH THE ENTITY 
SEEKING TO ASSERT IT 

CONCLUSION 

CERTIFICATE OF SERVICE 

 



    
TABLE OF CITATIONS 

CASES : PAGE(S 

Atchison, Topeka & Santa Fe Railway Company v. Lennen, 

531F.Supp..220€D. Kan. 1081 ),.......cooicecimssssninnsivisnnrissassunnsasssnssashssons 7 

Bush v. Viterng, 740 F.2d 350 (Sth Cir. 1984)......eeivivunsivirsnniiiuncsinnies 2,9 

Butterworth v. Dempsey, 229 F.Supp. 754 
(DD CONNL TOOC),......comiccseerernsssionsisanroninivivnirmssinmnnsomsinsannesissihusnnsrsnadsos sin emus 7 

Clark v. Tarrant County, 798 F.2d 736 
ESL CIT. J OB 0).rssstrssittisnsessssnessiorssetnissnnrentoiosunisonbnssnnnnsinnbionisrhsssbnmviansnivioions 9 

Crane v, Texas, 768 F.20 193 {Sth CIr. 1985)... ccscccicisiminssnissinssinsisionss 8 

Gulf States Utilities Co. v. Alabama Power Co., 

831 F.24557 (Sth Cred 087).....c0ii ed iui ciiiBiermmemnennessansninninssnsviinisnsinis 11 

Halderman v. Pennhurst State School & Hospital, 

542 F.Supp. G19 (E.D. Pa. 1982)....c.ccccecinmriseresinsommrsisssasninerssissionananssnnsns 7 

Holloway v. Walker, 765 F.2d 517 (Sth Cir. 1985).....c...vvivciivirnmneens 9 

Korioth v. Briscoe, S23 F.2d 1271 (Sth Cir. 1975)...ccccccinnciiriviseon 13 

Moor.v. County of Alameda, 411 :1).8, 693 (1973).......cccccoinrmmmaesiionees 9 

New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 

732 F.2d 452 (SICH. 1984)... iiiimciinsomniecttirniissssnsensnssdsisis innnnnis 6.11 

New Yorkyv. Uplinger, 467 U.S. 246 (1984)....cccccoccesniirerssnisnrsnnsisnnorssnns 9 

United States v. 936.71 Acres of Land, 

418 F.2d 5351S Cir. 1060)......... icc vinnrccinnrmiraneriirisiui sins ismmasssssnsusesnts 8 

United States v. City of Philadelphia, 798 F.2d 81 

(BO CI TORO) ..... oii tre serirssinsenronsrssiveausiamianisinsiinensensnseaistontins sssnossiorinmsssioon 10 

iv 

 



CONSTITUTION 
  

EY CONSTI V Slr le ge Ym 
TEX CONSE mt Vo 07 rr cident dedi iil 
TEX. CONST. art. V, §7a 

RULES 

FED. R. CIV. P. 24(a) 
FED. R. CIV. P. 24(a)(2) 
FED. R. CIV. P. 24(b) 
FED. R. CIV. P. 24(b)(2) 

 



No. 89-1189 
  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LULAC COUNCIL #4434, et al., 
Plaintiffs/Defendants-Appellees, 

Vv. 

MIDLAND COUNTY, TEXAS, 

Putative Intervenor-Appellant. 

  

Appeal From The United States District Court 

Western District of Texas 

Midland-Odessa Division 

  

BRIEF FOR STATE DEFENDANTS-APPELLEES 

  

Texas officials,! appellees for a limited purpose here and defendants 

below in the pending case of LULAC Council #4434, et al. v. Mattox, et al., 

Civ. Action No. MO-88-CA-154, submit the following brief in support of 

their argument that Midland County, Texas ("Midland County"), may not 

intervene to represent Texas state district judges in their official capacities. 

The record on appeal is in two volumes. Volume I is the record of papers 

  

1 When the appeal was taken, the state defendants were the Attorney General of 
Texas, the Secretary of State of the State of Texas, and the twelve state judges who are 
members of the Texas Judicial Districts Board, including the state district judge who is 
the presiding judge of the Seventh Administrative Judicial District which 
encompasses Midland County. All are sued in their official capacities only. In this 
brief, they will be referred to as "State Officials."  



filed, and Volume II is the transcript of a hearing. They will be cited in 

1" " 

the forms "RB... "and "Tr..." respectively. + 

STATEMENT OF JURISDICTION 
  

The Court has jurisdiction to hear the portion of this appeal 

concerning whether the trial court correctly denied Midland County 

intervention of right. The Court also has jurisdiction to determine whether 

the trial court abused its discretion in denying permissive intervention to 

Midland County. If the Court determines that permissive intervention was 

denied without an abuse of discretion it has no jurisdiction and must 

dismiss the appeal. See Bush v. Viterna, 740 F.2d 350, 351 n.1 (5th Cir. 

1984). 

STATEMENT OF THE ISSUES 
  

Insofar as State Officials as appellees are concerned, the issues are: 

I. Whether Midland County has a legally protectable interest in the legal 

interests of state district judges in their official capacities who sit in the 
county; and 

II. Insofar as that asserted interest is concerned, whether Midland County 

demonstrated inadequate representation by State Officials. 

STATEMENT OF THE CASE 
  

Course Of Proceedings And Disposition In The Court Below 
  

This interlocutory appeal is from a district court's orders denying 

intervention as a defendant to Midland County in a voting rights case 

challenging the at-large system of electing Texas state district judges in 

targeted counties. When the appeal was taken, the plaintiffs’ attack was 

on the system for electing 205 judges in forty-four Texas counties. (With  



    
the filing of their Second Amended Complaint on May 12, 1989, the 

plaintiffs have revised their lawsuit to challenge 197 judges in sixteen 

counties.) 

On November 30, 1988, Midland County moved to intervene "for 

itself and on behalf of the [three] duly elected district judges presiding in 

Midland County, Texas, in their official capacities" either as of right under 

Rule 24(a)(2), or permissively under Rule 24(b)(2). R. 220. The plaintiffs 

opposed the intervention motion, arguing that, because Midland County 

has "no legally recognized role in judicial redistricting, [it] cannot have an 

interest in this litigation" supportive of intervention. R. 213. State 

Officials did not oppose Midland County's motion, but pointed out to the 

trial court that they did "not subscribe to all the arguments . . . in support 

of those motions." R. 35. 

In an order entered on January 27, 1989, the trial court denied 

Midland County's intervention as of right on the ground that it lacks the 

requisite legally protectable interest required for intervention under Rule 

24(a): "counties have no ‘direct, substantial, and legally protectable 

interest’ in the question of whether the present judicial lines are 

discriminatory." R. 181. The trial court reasoned that counties do not 

have a sufficient interest because only the Texas Legislature, the Texas 

Judicial Districts Board, and the Texas Legislative Redistricting Board have 

authority under Texas law to comply with a remedial order calling for 

redrawing of judicial lines. R. 180. Thus, the court concluded that 

Midland County could not intervene because it is asserting an interest in a 

right belonging to existing parties, the State Officials. 

The trial court denied permissive intervention because the Attorney 

General adequately represents the interests of the State of Texas and 

3. 

 



because Midland County, one county out of forty-four targeted Texas 

counties, "cannot significantly contribute to [the] full development of the 

underlying factual issues in the suit." R. 182. 

Midland County subsequently filed on February 15, 1989, a request 

for reconsideration of the order denying intervention. R. 97. .In that 

request, Midland County reiterated that it was seeking intervention on 

behalf of itself and on behalf of Texas district judges who sit in Midland 

County in their official capacities. R. 97. 

On February 27, 1989, the trial court conducted a hearing primarily 

devoted to pending intervention motions ("February 27th intervention 

hearing"), and again denied Midland County's intervention. Tr. 30. 

Midland County filed a notice of appeal that same day. R. 7. After entry 

of the trial court's written order embodying its February 27th oral ruling, 

R. 3, Midland County filed an amended notice of appeal on March 8, 1989. 

R.1. 

Statement Of Facts 
  

Midland County was the only county containing targeted judicial 

districts that sought to intervene as a defendant. The three state district 

judges sitting in Midland County did not move to intervene at the trial 

court level and are not now before this Court; however, state district 

judges from three other counties with targeted judicial districts also moved 

to intervene as defendants: (1) from Harris County, Sharolyn Wood, Judge 

of the 127th Judicial District, R. 57; (2) from Dallas County, F. Harold Entz, 

Judge of the 194th Judicial District, R. 22; and (3) from Travis County, all 

thirteen sitting district judges, R. 166. Of these three sets of defendant- 

intervenors, only the Travis County judges grounded their claimed right to 

intervene solely on their official capacities. 

A.  



State Officials did not oppose the motions to intervene by these three 

sets of state district judges; however, in ‘written pleadings and oral 

argument at the February 27th intervention hearing, State Officials 

emphasized that the capacity in which the interventions were sought was 

crucial. R. 34-35,143-44; Tr. 15-17. State Officials argued that the 

proper capacity for the intervening judges was their individual (or 

personal) capacity, not their official capacity which already was effectively 

represented in the lawsuit. Id. 

The trial court agreed with State Officials on this point and permitted 

the three sets of judges to intervene in their individual capacities, but not 

their official capacities. Tr. 22,26, & 29. A subsequent written order 

embodied the oral intervention rulings and specified that the judges were 

intervening in their individual capacities. R. 3. (Since compilation of the 

record on appeal, the Travis County district judges have withdrawn their 

intervention after unsuccessfully urging the trial court to reverse its ruling 

that they could intervene only in their individual capacities.). 

SUMMARY OF THE ARGUMENT 
  

State Officials urge only a limited point as appellees. Analysis of the 

legally protectable interests which arguably confer defendant-intervenor 

status on Midland County must exclude consideration of the interests of 

the three state district judges in their official capacities who sit in the 

county. Those three judges are state officials, not county officials, and 

their official interests may only be expressed through the state or one of 

its officials. The county is not the state and, therefore, lacks the legal 

authority to protect official state interests.  



Even assuming that Texas counties may claim the interests of state 

district judges in their official capacities as one of their own legally 

protectable interests, Midland County has failed to demonstrate or even 

argue before this Court that those interests are inadequately protected by 

the existing parties to the suit, including State Officials. The presumption 

that State Officials already adequately protect the interests of state district 

judges in their official capacities thereby remains untouched. Insofar as it 

asserts such interests as its own, Midland County has failed to establish 

one of the essential elements for intervention. 

ARGUMENT 

L. 
MIDLAND COUNTY HAS NO LEGAL INTEREST TO SUPPORT 

INTERVENTION OF RIGHT ON BEHALF OF STATE DISTRICT JUDGES IN 

. THEIR OFFICIAL CAPACITIES. 

Rule 24(a)(2) of the Federal Rules of Civil Procedure requires that an 

applicant for intervention satisfy each of the following four elements 

before intervention of right is granted: 

(1) the application for intervention must be timely; (2) the 

applicant must have an interest relating to the property or 
transaction which is the subject of the action; (3) the applicant 

must be so situated that the disposition of the action may, as a 

practical matter, impair or impede his ability to protect that 

interest; and (4) the applicant's interest must be inadequately 
represented by the existing parties to the suit. 

New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 

463 (5th Cir. 1984) (en banc) ("NOPSI"”). Under Rule 24(a), the trial court 

rejected Midland County's intervention because it lacks a legally 

protectable interest in the subject matter of this action. 

Gi  



    
On appeal, Midland County asserts various interests in this litigation 

which, either individually or in aggregation, suffice to make intervention of 

right appropriate. The asserted interests are as follows: (a) neither the 

Judicial Districts Board nor the Texas Legislature may create single- 

member judicial districts without the approval of the voters of Midland 

County,? Appellant's Brief at 14-16; (b) the creation of single-member 

districts for state district judges would confuse the voters of Midland 

County, Appellant's Brief at 17; (c) single-member districts for district 

judges would raise questions of venue which would affect the interest of 

citizens of Midland County in the smooth operation of their judicial system, 

Appellant's Brief at 18; (d) single-member districts would increase the size 

of facilities and personnel for district courts which Midland County 

subsidizes, Appellant's Brief at 20; (e) Midland County possesses an 

interest in the binding effect any adverse decision would have on future 

litigation involving county officials who are members of the judicial branch 

in Midland County, Appellant's Brief at 19; and (f) Midland County must 

represent the interests of the state district judges in their official capacities 

who sit in Midland County, Appellant's Brief at 20. 

  

2 Invoking this interest, Midland County incorrectly argues that it is a 
necessary party to the litigation. See Halderman v. Pennhurst State School & 
Hospital, 542 F.Supp. 619, 624 (E.D. Pa. 1982) (counties are not necessary parties 
because Commonwealth defendants have sufficient control over all counties in the 
State to enable it to comply with the court's order); Atchison, Topeka & Santa Fe 
Railway Company v. Lennen, 531 F.Supp. 220, 234 (D. Kan. 1981) (county officials 
were not necessary parties because state defendants are the only parties required to 
provide complete relief on the plaintiffs’ claims of discrimination); Butterworth v. 
Dempsey, 229 F.Supp. 754, 761, 798-99 (D. Conn.), aff'd mem. per curiam sub nom. Town 
of Franklin v. Butterworth, 378 U.S. 562, aff'd per curiam sub nom. Pinney v. 
Butterworth, 378 U.S. 564 (1964) (towns in Connecticut, which are the equivalent of 
counties in other states, were not necessary parties in a legislative apportionment 
case). 

 



   

State Officials directly dispute Midland County only on the last of 

these asserted interests -- that is, the county's representation of state 

district judges in their official capacities. Counties in Texas have no such 

legal interest. Instead, the legal interests of state officials (such as state 

district judges) in their official capacities are asserted by the state itself 

and, if the matter is in litigation, through the state's Attorney General. 

A. Texas Counties Are Not Real Parties In Interest Insofar As Texas 

District Judges In Their Official Capacities Are Concerned 
  

  

In. order to assert an interest sufficient to cross Rule 24(a)’s 

threshold, "the claim the applicant seeks intervention in order to assert 

[must] be a claim as to which the applicant is the real party in interest." 

NOPSI, 732 F.2d at 464. The real party in interest "is the party who, by 

substantive law, possesses the right to be enforced. . . ." 1d. ' Intervention 

will be denied, and a proposed intervenor 1s not the real party in interest, 

if the asserted right is not its own. United States v. 936.71 Acres of Land, 

418 F.2d 551, 556 (5th Cir. 1969). 

Texas counties are political subdivisions of the state, distinct from 

the state itself. Crane v. Texas, 759 F.2d 412, 415-21 (5th Cir.), modified 

on other grounds, 766 F.2d 193 (5th Cir. 1985) (per curiam). A necessary 

corollary to this legal principle is that the legal interests asserted by Texas 

counties must be theirs and not the interests which legally rest with the 

state. Therefore, if state district judges in their official capacities are state 

officials and not county officials, the counties may not assert the interests 

of those judges in their official capacities. Instead, insofar as state district 

 



   

  

judges in their official capacities are concerned, the state must be 

considered the real party in interest. 

It is undisputed that state district judges in Texas are state officials, 

not county officials. This Court implicitly held as much in Holloway v. 

Walker, 765 F.2d 517, 525 (5th Cir.), cert. denied, 474 U.S. 1037 (1983) 

(Eleventh Amendment immunity available to state district judge as state 

official), and more directly so held in Clark v. Tarrant County, 798 F.2d 

736, 744 (5th Cir. 1986) ("The district judges derive their power from the 

judicial article of the state constitution and not from the [c]ounty.”). 

Moreover, this Court's holdings comport with the views of the state's 

Attorney General that state district judges involved in litigation in their 

official capacities must be represented by his office. Such expressions on 

points about the allocation of authority among state officers to represent 

the state are matters Of state concern entitled to special federal court 

deference. New York v. Uplinger, 467 U.S. 246, 247 n.1 (1984); see also 

Moor v. County of Alameda, 411 U.S. 693, 720-21 (1973) (state's views on 

matters concerning allocation of state political authority entitled to special 

deference), 

Thus, any interest that Midland County has with respect to the 

official capacities of state district judges presiding in Midland County is 

subsumed by Texas' interest in its judicial system. Cf. Bush v. Viterna, 

supra, 740 F.2d at 351-53 (where the plaintiffs’ claims principally related 

to the standards adopted by a state agency, intervention held properly 

  

3 State district courts are created by the Texas Constitution. See TEX. CONST. art. 
¥. § ‘1 (judicial power of the State is vested in" its district courts). The Texas 
Constitution divides the state into judicial districts. See TEX. CONST. art. V, § 7. And in 
the event reapportionment of the Texas judiciary is required in this case, only the 
Texas Legislature, the Judicial Districts Board, or the Legislative Redistricting Board 
have the authority to redraw judicial district lines. See TEX. CONST. art. V, § § 7, 7a. 

9. 

 



denied to the Texas Association of Counties). In evaluating whether the 

trial court appropriately denied intervention, the Court must excise from 

its analysis of Midland County's legally protectable interests in the subject 

matter of the lawsuit the interest asserted by the county on behalf of state 

district judges in their official capacities. That 1s an interest it is not 

empowered to assert. 

B. Midland County Failed To Demonstrate That The Interests Of 
State District Judges In Their Official Capacities Are Inadequately 
Represented By The Existing Parties To The Suit 

  

  

  

Assuming for the purposes of argument that Midland County 

somehow may assert as part of its interests in this case the interests of 

state district judges in their official capacities, it nonetheless has failed to 

establish a right to intervene based on that interest. In fact, Midland 

County has not even briefed the point on appeal, and, therefore, has 

waived it. 

The fourth Rule 24(a) element that Midland County must establish in 

order to intervene of right is that its interest is inadequately represented 

by the existing parties to the suit. There is absolutely nothing in Midland 

County's appellate brief arguing inadequate representation insofar as its 

interest concerns state district judges in their official capacities. It has 

thus fallen far short of overcoming the presumption that the litigating 

governmental entity -- here, the state itself through State Officials -- 

provides adequate representation. See United States  v. City of 

Philadelphia, 798 F.2d 81 (3d Cir. 1986).  



    

  

i, : 

NO ABUSE OF DISCRETION OCCURS WHEN A TRIAL COURT DENIES 
PERMISSIVE INTERVENTION BECAUSE PROTECTION OF THE INTEREST 
ASSERTED RESTS WITH AN OFFICIAL ALREADY INVOLVED IN THE 

LAWSUIT, NOT WITH THE ENTITY SEEKING TO ASSERT IT. 

The question on appeal of a denial of motion to intervene 

permissively is "not whether 'the factors which render permissive 

intervention appropriate under Federal Rule of Civil Procedure 24(b) were 

present,’ but is rather 'whether the trial court committed a clear abuse of 

discretion in denying the motion." " NOPSI, 732 F.2d at 471 (quoting 

Korioth 'v. Briscoe, 523 F.2d 1271, 1278 (5th Cir. 1973))." Reversal by this 

Court of a denial of permissive intervention solely because the district 

court abused its discretion "is so unusual as to be almost unique.” Id. 

The district court's finding that the Attorney General represents the 

interests of Midland County is especially appropriate with regard to 

Midland County's attempt to intervene permissively on behalf of state 

district judges in their official capacities. Insofar as the trial court's denial 

of permissive intervention to Midland County denied it the opportunity to 

represent the interests of state officials such as state district judges in this 

voting rights lawsuit, there was no clear abuse of discretion. Surely it 

  

4 Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465 (5th Cir.), modified 
on other grounds, 831 F.2d 557 (5th Cir. 1987) ("GSU"), the only case Midland County 

could cite in which the Fifth Circuit found an abuse of discretion in denying 
permissive intervention, fully supports denial of permissive intervention by 
Midland County on behalf of state district judges. GSU held that denial of permissive 
intervention by the Louisiana Pacific Service Commission ("LPSC") was an abuse of 

discretion "especially because neither GSU [the plaintiff] nor Southern [a defendant] 
opposed the LPSC's intervention or claimed that it would prejudice their rights or 
delay the litigation.” GSU, 824 F2d at 1476. Moreover, the LPSC met all the 
requirements to intervene as of right. /d. Especially significant is that the LPSC was 
the only state governmental entity seeking to intervene that could investigate the 

-11- 

 



rests within the discretion of a trial court to have the interests of state 

officials asserted through the state officer charged with the legal 

responsibility for asserting those interests. 

CONCLUSION 
  

Insofar as Midland County's attempt to intervene relies on its 

assertion of the interests of state district judges in their official capacities, 

the Court should affirm the trial court's denial of intervention. 

Respectfully submitted, 

JIM MATTOX 

Attorney General of Texas 

MARY F. KELLER 

Firs ssistant Attorney General 

~~ <> 
RENEA HICKS 
Special Assistant Attorney General 

( 7AVER P. GUAJARDO / 7 
Assistant Attorney General 

  

  

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

Attorneys for State Defendants- 

Appellees 
May 19, 1989 

  

"reasonableness and justness of all contracts," 824 F.2d at 1476, proposed by plaintiff 
utility. That circumstance is absent here. 

12.  



CERTIFICATE OF SERVICE 

I certify that on this 19th day of May, 1989, I sent two copies of the 

foregoing brief by placing them in the United States mail, first class, 

postage prepaid, to each of the following: William C. Garrett, Garrett, 

Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; and 

Mark H. Dettman, Midland County Attorney, Midland County Courthouse, 

P.O. Box 2559, Midland, Texas 79702. 

Renea Hicks