Correspondence from Godbey to Clerk; Motion to Realign and to Modify Intervention of Defendant-Appellant Entz; Godbey Affidavit

    HUGHES & LUCE, L.L.P 
A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

1717 MAIN STREET 

SUITE 2800 

    

1021 MAIN STREET DALLAS, TEXAS 7520! 1 CONGRESS AVENUE 

SUITE 1300 (214) 939-5500 SUITE 900 
HOUSTON, TEXAS 77002 FAX (214) 939-6100 AUSTIN, TEXAS 7870! 

(713) 754-5200 TELEX 7308236 (512) 482-6800 

FAX (713) 754-5206 FAX (512) 482-6859 

Direct Dial Number 

(214) 939-5581 

  

March 29, 1993 

VIA FEDERAL EXPRESS 

Mr. Richard E: Windhorst, Jr., Clerk 
United States Court of Appeals 
Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens, Council 
No. 4434, et al. v. Entz, et al.; No. 90-8014 

Dear Mr. Windhorst: 

Enclosed are an original and 20 copies of Judge Entz's 
Motion to Realign and, If Necessary, to Modify Intervention 
for filing in the above-referenced matter and for presentation 
to the en banc Court. I understand that under the Court's 
Internal Operating Procedures under Rule 27, because the 
appeal has been set on the en banc Court's oral argument 

calendar, the motion will be circulated to the entire en banc 
Court. As required by Local Rule 27.5, a Certificate of 
Interested Persons is attached to the motion. 

Please return a file-stamped copy to me in the enclosed 
self-addressed prepaid postage envelope. By copy Of this 
letter, and in accordance with the Rules, copies of the 
enclosed document have been forwarded to counsel of record. 

Please contact me at the above number if you have any 

questions. Thank you for your assistance in this matter. 

Very truly yours, 

David C. Godbey 

DCG/pai 

Enclosures 

 



HUGHES & LUCE, L.L.P. 

Mr. Richard E. Windhorst, Jr., Clerk 

March 29, 1993 

Page 2 

cc: William L. Garrett (Via Certified Mail RRR) 
Rolando L. Rios (Via Certified Mail RRR) 

|'Sherrilyn A. Ifill (Via Certified Mail RRR) 
Gabrielle K. McDonald (Via Certified Mail RRR) 
Edward B. Cloutman, III (Via Certified Mail RRR) 
E. Brice Cunningham (Via Certified Mail RRR) 
Renea Hicks (Via Certified Mail RRR) 
J. Eugene Clements (Via Certified Mail RRR) 
Seagal V. Wheatley (Via Certified Mail RRR) 
Thomas Rugg 
Walter L. Irvin 
James George 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN § 
CITIZENS, COUNCIL NO. 4434, 
et al,, 

Plaintiffs-Appellees, 

No. 90-8014 
V. 

JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

MOTION TO REALIGN AND, IF NECESSARY, TO MODIFY 
INTERVENTION OF DEFENDANT-APPELLANT JUDGE F. HAROLD ENTZ   

TO THE HONORABLE EN BANC COURT OF APPEALS: 

Defendant-Appellant Dallas County District Judge F. Harold 

Entz ("Judge Entz") moves to realign the Attorney General of 

the State of Texas and, if necessary, to alter the scope of 

Judge Entz's intervention for the following reasons: 

I. RECENT FACTUAL BACKGROUND 

The Attorney General of the State of Texas ("General 

Morales") has engaged in secret negotiations that he claims 

will "settle" this appeal. The "settlement" reportedly caves 

in to the plaintiffs' request for single-member judicial 

districts, except for at-large benches for Defendant- 

Intervenors Judge Entz and Judge Wood, and a few others -- 

apparently in a futile attempt to silence Judges Entz and Wood 

in this appeal. Now that General Morales' true colors are 

shown, this Court should realign the parties to reflect 

General Morales' true position in this appeal. 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 1 

 



Although General Morales purports to represent various 

state defendants in this appeal as their attorney, he has 

taken actions squarely contrary to the interest he purports to 

represent. When Judge Entz moved to intervene in this action 

in the District Court, General Morales' predecessor took the 

position that he represented Judge Entz in Judge Entz's 

official capacity, and that office -has continued to take the 

position that it represents all of Texas’ district court 

judges in their official capacity in this action. See, €.d., 

Defendants' Response to Motions to Intervene by Dallas County 

Plaintiff-Intervenors and Travis County Defendant-Intervenors 

(W.D. Tex. February 7, 1989). General Morales has also 

claimed that he represents all of the named state defendants 

in their official capacity in this action. 

Notwithstanding those assertions of an attorney-client 

relationship, General Morales has ignored the express 

instructions of his clients to pursue this- appeal and fulfill 

his oath to defend the Constitution and the laws of the State 

of Texas. Attached as Exhibit A to the accompanying affidavit 

of David C. Godbey is a copy of a letter sent on behalf of 

Appellant Judge Wood to General Morales. Attached as Exhibit 

"B" to the Godbey Affidavit is a copy of a letter sent to 

General Morales by Judge McDowell, one of General Morales" 

nclients" and a named defendant in this action. Both of those 

letters instruct General Morales to pursue this appeal 

vigorously. 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 2  



Ignoring those instructions from his clients, General 

Morales, as their attorney, chose to pursue settlement rather 

than defend Texas' system. Judge Entz participated in 

ndiscussions" regarding settlement to the limited extent of 

stating that: He opposed settlement; the other parties could 

not dispose of this appeal through settlement absent Judge 

Entz's consent; he intended to pursue the appeal and expected 

that Texas' system would be upheld; the current proposals on 

the table were affirmatively unlawful; and the district court 

presently does not have any jurisdiction to review any 

purported settlement. See Godbey Affidavit Exhibit "C." 

General Morales apparently at first was convinced that any 

voluntary change in Texas' judicial system would have to be 

made in accordance with Texas law, and would therefore require 

a constitutional amendment. See Godbey Affidavit Exhibit 

"D." More recently, however, General Morales appears to have 

changed his views. On March 25, 1993, the "undersigned counsel 

heard rumors that secret settlement negotiations were nearing 

fruition. Counsel for Judge Entz and for Judge Wood were 

neither told of these latest discussions by counsel for any 

other parties nor invited to participate. In an effort to 

determine if the rumors were true, undersigned counsel tried 

to contact counsel for plaintiffs and General Morales. 

William Garrett, counsel for plaintiffs, spoke with 

undersigned counsel and refused to discuss the subject of 

settlement. Renea Hicks, with General Morales’ office, 

returned undersigned counsel's telephone call and likewise 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 3  



  

refused to discuss the subject at all. See Godbey Affidavit 

9 

The next morning, on March 26, 1993, the Dallas Morning 

News carried a front page story announcing that General 

Morales and other Democrat elected state officials had 

approved a "settlement" with plaintiffs; that purported 

settlement, according to the press. report, requires approval 

by a majority of both houses of the Texas Legislature to be an 

effective contract. See Godbey Affidavit Exhibit "E." 

II. SUMMARY OF THE MOTION 

This motion addresses two issues. First Judge Entz 

requests the Court to realign General Morales with plaintiffs 

in this appeal, just as he has chosen to align himself with 

them publicly. Second, Judge Entz requests that his 

constitutional and other legal arguments be considered for all 

counties under attack in the suit and not just Dallas County. 

Because plaintiffs and General Morales have not yet made any 

motion regarding the "settlement" in this Court, Judge Entz 

will not yet address the merits or legal effect on this appeal 

of their purported "settlement" agreement, except to note his 

view that General Morales' actions and that agreement, as 

reported in the press, violate Texas and federal law. 

III. GENERAL MORALES SHOULD BE ALIGNED WITH APPELLEES 

The Federal Rules of Appellate Procedure do not require 

that the parties on appeal be aligned mechanically as they 

were in the trial court. In particular, Rule 34(b) divides 

oral argument by "sides," rather than by appellants and 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 4 

 



  

appellees, or plaintiffs and defendants. The advisory notes 

indicate that this usage was deliberate: "The term 'side' is 

used to indicate that the time allowed by the rule is afforded 

to opposing interests rather than to individual parties. Thus 

if multiple appellants or appellees have a common interest, 

they constitute only a single side." 

General Morales has demonstrated through recent events 

that he does not have a common interest with Judge Entz. 

General Morales swore an oath of office to protect and defend 

the constitution and laws of the State of Texas, as did Judge 

Entz. General Morales has chosen not to abide by his oath and 

not to defend Texas' judicial system; Judge Entz wishes to 

defend that system. Thus, General Morales and Judge Entz do 

not have a common interest in this lawsuit and should not be 

on the same "side" for oral argument. Conversely, as 

evidenced by his purported "settlement" agreement, General 

Morales has a common interest with the plaintiff-appellees. 

He should therefore be aligned on their side. 

The oral argument of this case in the United State Supreme 

Court dramatically illustrates the need for such realignment. 

Counsel for the Attorney General successfully opposed Judge 

Entz's and Judge Wood's motions to divide oral argument; 

counsel for Judges Entz and Wood reluctantly agreed not to 

force the issue of who would use the undivided time, which 

under Supreme Court rules would have resulted in no one 

arguing for respondents. This was quickly revealed to be an 

error. Although this Court en banc had ruled decisively in 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 5 

 



  

Texas' favor, counsel for the Attorney General stood before 

the Supreme Court and repudiated this Court's ruling: “"1«édo 

not adopt the theory . . . that the Fifth Circuit adopted.” 

See Godbey Affidavit Exhibit "F," at 28. Unsurprisingly, with 

no voice raised in support of this Court's ruling, the Supreme 

Court reversed. - 

The lines of battle are now clearly drawn. The Attorney 

General, who should be standing on the ramparts defending the 

State, has slipped out the back door to join with the 

attackers. This Court should realign the parties to reflect 

the reality of their interests. 

IV. JUDGE ENTZ MAY DEFEND ALL COUNTIES UNDER ATTACK 

Judge Entz's current position as an intervening defendant- 

appellant permits him to defend all counties under attack. 

Admittedly, when Judge Entz moved to intervene in the trial 

court, he stated that he was especially able to present a 

factual defense for Dallas County. Indeed, there was an 

informal agreement among counsel for defendants in which Judge 

Entz took the lead at trial for the proof regarding Dallas 

County, Judge Wood did the same for Harris County, and the 

Attorney General took the lead with the other counties. 

Although Judge Entz acknowledges that informal agreement, 

his motion to intervene was simply to intervene as a defendant 

and was not limited to Dallas County or to protection of his 

individual court. See Judge Entz's Motion to Intervene (W.D. 

Tex. February 27, 1989). The order granting that motion 

simply permitted Judge Entz to intervene in his individual 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 6 

 



capacity. See Order (W.D. Tex. March 6, 1989). Neither the 

motion nor the order restricted the scope of that intervention 

to Dallas County or the 194th District Court. Likewise, in 

his first brief before this Court, Judge Entz noted that 

"Although Judge Entz's legal arguments are not intrinsically 

restricted in applicability to .Dallas County, Judge Entz 

restricted his involvement at trial to Dallas County and will 

likewise restrict his discussion of the facts to Dallas County 

before this Court." Brief of Appellant F. Harold Entz at 3 

n.3 (February 13, 1990) (emphasis added). 

Judge Entz no longer has the luxury of relying on General 

Morales to pull the laboring oar with respect to the other 

counties in this case. Accordingly, Judge Entz notes that he 

will henceforth expressly include the remaining counties 

within the scope of his constitutional and other legal 

arguments. 

In the unlikely event the Court determines that Judge 

Entz's prior intervention was limited to defending Dallas 

County, Judge Entz moves in the alternative that the scope of 

his intervention be expressly extended to permit his arguments 

to be considered with respect to the remaining counties. 

This Court sitting en banc and General Morales' 

predecessor have provided precedent precisely on point. Baker 

Vv. Wade, 769 F.2d 289 (5th Cir. .1985) (en banc). Baker 
  

involved an attack on Texas' sodomy statute. Plaintiffs 

prevailed in the trial court and the Attorney General decided 

to give up and dismiss an appeal to this Court. Following the 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 7  



  

dismissal, a district attorney moved to intervene to prosecute 

the appeal. Id. at 291. This Court en banc held that such 

intervention was proper even at that late date because the 

intervenor's interest became inadequately represented when the 

Attorney General gave up. Id. at 291-92. The Court proceeded 

to reverse the district court decision and uphold the Texas 

statute. 

Just as in Baker, Texas' attorney general has chosen to 

discontinue an appeal rather than risk winning. And, just as 

in Baker, his decision renders unrepresented the interests of 

those who would support Texas' constitution and its method of 

judicial selection. In the event that Judge Entz's present 

intervention is not already broad enough to cover the 

remaining counties, then, Judge Entz is entitled to expand 

that intervention at this time, and respectfully moves the 

Court for such relief. 

CONCLUSION . 

Plaintiffs fear they cannot win their case in the courts; 

conversely, General Morales fears that he will win when this   

Court addresses the merits of this appeal. They have been 

unable to win on their position in the Texas Legislature 

because they cannot muster the votes needed to change Texas’ 

system in accordance with Texas' constitution. Faced with 

this dilemma they have joined forces with the States' Democrat 

leadership, they use the pretext of the pending litigation to 

justify their flouting of the Texas Constitution, and they 

hasten to have the Court ratify their agreement before the 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 8 

 



Court addresses the merits of the case and upholds the current 

system of judicial selection. 

Judge Entz has always believed that this case was 

motivated by partisan politics. According to Plaintiffs, 1it 

is not enough that minority judges are regularly elected in 

Dallas County; they must be Democrat minority judges. it is 

not enough that minority plaintiff-intervenors in Dallas 

County were invited to run for judge as Republicans and agree 

they would have won if they had done so; the right they sought 

to vindicate was the right to be elected as Democrats. 

General Morales' most recent acts of surrender continue the 

partisan nature of this case and of the plaintiffs' position. 

The propriety of General Morales’ participation in this 

purported "settlement" is not yet before this Court; nor are 

the validity, constitutionality, or effect on this appeal of 

the purported settlement yet before this Court. What is, 

however, before this Court now is the .fact that General 

Morales has made his bed with the plaintiffs. He should, 

therefore be sent to sit at counsel table with them before 

this Court, and Judge Entz and Judge Wood should be permitted 

to have all the appellants' argument time in order to defend 

all of the counties under attack. 

WHEREFORE, Judge Entz respectfully requests that General 

Morales be aligned with plaintiff-appellees for the remainder 

of this appeal, that Judge Entz's argument be considered on 

behalf of all counties under attack in this action, and that 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 9  



Judge Entz and Judge Wood have all oral argument time for 

appellants. 

Respectfully submitted, 

Du A Gd, 
Robert H. Mow, Ld 
David C. Godbey 
Bobby M. coaney 4 © 

  

of HUGHES & LUCE, L.L.P. 

1717 Main Street, Suite 2800 

Dallas, Texas 75201 

(214) 939-5500 

(214) 939-6100 (FAX) 

ATTORNEYS FOR DEFENDANT- 
APPELLANT JUDGE ENTZ 

CERTIFICATE OF SERVICE 

I certify that I served copies of the foregoing motion, by 

certified mail, return receipt requested, upon the following 

counsel of record in accordance with the Federal Rules of 

Appellate Procedure this 29th day of March, 1993: 

William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Rolando Rios 
Attorney at Law 

115 E. Travis, Suite 1024 
San Antonio, Texas 78205 

Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Gabrielle K. McDonald 
Walker & Satterthwaite 
7800 N. Mopac, Suite 215 
Austin, Texas 78759 

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 10  



Edward B. Cloutman, III 

Cloutman, Albright & Bower 

3301 Elm Street 

Dallas, Texas 75226-1637 

  

Renea Hicks 
Office of the Attorney General 
P.O. Box 12548 
Capitol Station 
Austin, Texas 78711-2548 

J. Eugene Clements 
Porter & Clements . 

700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Seagal V. Wheatley 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 

711 Navarro, Sixth Floor 
San Antonio, Texas 78205 

E. Brice Cunningham 
777 South R.L. Thorton Freeway 

Dallas, Texas 75203 

of 5A 
  

JUDGE ENTZ'S MOTION TO REALIGN -- PAGE 11 

 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN § 
CITIZENS, COUNCIL NO. 4434, 

et _al., 

Plaintiffs-Appellees, 
No. 90-8014 

Vv. 

JUDGE F. HAROLD ENTZ, et al., 

C
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LP
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LA
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Defendants-Appellants. 

AFFIDAVIT OF DAVID C. GODBEY IN SUPPORT OF 
MOTION TO REALIGN AND, IF NECESSARY, TO MODIFY 

INTERVENTION OF DEFENDANT-APPELLANT JUDGE F. HAROLD ENTZ 
  

STATE OF TEXAS § 

COUNTY OF DALLAS ] 

BEFORE ME the undersigned authority, this day personally 

appeared David C. Godbey, known to me to be the person whose 

name is subscribed below, who upon his oath deposed and said: 

1. My name is David C. Godbey. I am over the age of 

eighteen (18) and competent in all respects to make this 

affidavit. Except as specifically noted otherswise, all of 

the facts recited in this affidavit are, of my personal 

knowledge, true and correct. 

2. I am one of the counsel of record for Judge F. Harold 

Entz in this appeal. 

3. Attached to this affidavit as Exhibit "A" is a true 

and correct copy of a letter received by this office from 

counsel for Judge Wood, another intervenor-defendant-appellant 

in this appeal. 

AFFIDAVIT OF DAVID C. GODBEY -- PAGE 1  



  

4, Attached to. this affidavit as Exhibit "B" is a true 

and correct copy of a letter provided to this office by Judge 

Pat McDowell. Judge McDowell is presently the presiding 

administrative judge for the First Administrative Judicial 

Region. On information and belief, that letter was in fact 

sent to Attorney General Morales by Judge McDowell. 

5. Attached to this Affidavit as Exhibit "C" is a true 

and correct copy of a letter sent on behalf of Judge Entz to 

counsel of record in this appeal setting forth Judge Entz's 

position on settlement discussions. 

6. Attached to this Affidavit as Exhibit "D" is a true 

and correct copy of an article published in the March 8, 1993 

issue of the Texas Lawyer in which it was reported that 

Attorney General Morales "said a constitutional amendment 

would be required" to settle this appeal and alter Texas’ 

method of judicial selection. 

7. Attached to this Affidavit -as Exhibit "E” is a {rue 

and correct copy of a story published on the front page of the 

Dallas Morning News on March 26, 1993. 

8B. Attached to this Affidavit as Exhibit "F" is a true 

and correct copy of excerpts from the transcript of oral 

argument in the Supreme Court in "Houston Lawyers Association, 

et al. v. Attorney General of Texas, et al.," Case Nos. 90-813 

and 90-974, which was originally filed in this Court as an 

Exhibit to Judge Wood's Motion to Divide Time for Oral 

Argument (October 28, 1991). 

AFFIDAVIT OF DAVID C. GODBEY -- PAGE 2 

 



  

9. On March 25, 1993, 1 heard rumors that secret 

settlement negotiations between Attorney General Morales’ 

office and plaintiffs were close to reaching a settlement 

agreement. Counsel for Judge Entz were not advised of those 

discussions nor invited to participate; nor, on information 

and belief, were counsel for Judge Wood. In an effort to 

determine if the rumors of "settlement" were true, I contacted 

counsel for plaintiffs and for General Morales. William 

Garrett, one of the counsel for plaintiffs, told me that he 

refused to discuss any possible pending settlement 

negotiations with me. Renea Hicks, with the Attorney 

General's office, spoke with me and likewise told me that he 

refused to discuss the subject of settlement with me. 

Diddy 
: Yh : 

SIGNED this 24 day of March, 1993, in witness whereof 1I 

FURTHER AFFIANT SAYETH NOT. 

  

affix my hand and official seal. 

  

will. N/T 
* Margaret A. Ingram otary Pulflic in and for 

ol 3 Notary Public, State of Texas fe Siate of Texas 

L) My Comm. Expires 6/19/93 

  

  

Magtacer A. INGeam 
(printed name) 
  

My Commission Expires: 

un /4 193 
  

AFFIDAVIT OF DAVID C. GODBEY -- PAGE 3 

 



     SENT BY}, ¢ R= d=83 7:52PM 

* | 

PorTER & CLEMENTS 

ARGAITEAED WWD WABLITY PARTNERSHIP 

INELUDING PROPEBBIONAL 00 ROAATIOND 

ATTORNEYS AT LAW | MAILING ADDRESS: 

J. BUCENE OLEMEN'S, RG 

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700 LOUIBIANA, BLITR 3500 

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208-0808 
BoYys?aN, S 370 

HOUSTON, TX T7R10-4744 

HY 206.   

eg LECOPIRR (11F) 228-193 

TELEPHONE (713) 220-0800 

February 3, 1993 
| 

| 

Honorable Dan Morales 
| 

Attomey General of Texas 
| 

P. O. Box 12548, Capita! Station 
| 

Austin, Texas 78711-2548 
| 
| 

Re: No. 90-8014 and No. 90-9003; League of United Latin American Citizens, 

Council No. 4434, et al., Plaintiffi-Respondenis, V. William P. Clements, 

Governor of the State of Texas, et al., Defendants, Judge Sharolyn Wood, eic., 

Defendans-Appellans; In the United States Court of Appeals for the Fifth Circuit 
| 
| 

Dear General Morales: 
: | 

This letter is a follow-up to settlement discussions held yesterday in the above-referenced 

case, which Evelyn Keyes from our office attended for Judge Wood. | 

1 understand from Evelyn that the plaintiffs have expressed hostility to our! continuing 

participation in the settlement discussions on behalf of Judge Wood and have either scheduled 

or sought to schedule a settlement conference with you from which Judge Wood and Judge Entz, 

as named Harris County and Dallas County defendant/intervenors, are to be excluded. We also 

understand that other settlement conferences have been held to which neither we nor Judge Entz 

were invited. 

While we respect Judge Entz’ right to refuse to participate in settlement discussions, it 

is neither our intent nor our desire to be excluded from those discussions. Nor is it our desire 

to "scuttle" those discussions, as apparently at Jeast some of the Plaintiffs believe. | 

As you know, Judge Wood is a proper party to this litigation whose standing tp intervene 

has been upheld, In addition, you and your office are Judge Wood's lawyers in her official 

capacity (and therefore our co-counsel), as well as being the lawyers for Chief Justice Phillips, 

Judge Entz, the administrative state district judges and the named state defendants and the judges 

affected in the eight counties under consideration - all in their official capacities. Many of those 

defendants may share the concems we express here. 

EXHIBIT 

hp 
     



SENT BY: ; @e-03 : 7:53PN ® 214 9388100:% 3 

: | 

  

   
Letter to Attorney General Morales 

February 3, 1993 
Page 2   

  

As you know, it is Judge Wood's position that this case raises serious legal issues which 

have not been finally resolved and that legal proceadings should continue. She ¢ ntinues to 

believe that the law is not well enough resolved to safely develop a proper settlement. She is 

filing a suggestion for rehearing by the Fifth Circuit en banc, and she expects, given the 

importance of the case and the divisions between the panel majority and the dissent, that the 

Fifth Circuic will, in fact, accept en banc review, Judge Wood solicits your support of that 

request. 

Judge Wood believes that it is premature t0 rush to "remedy" what may pr may not 

ultimately be found to be a violation of the Voting Rights Act, and she is concerned about the 

piecemeal approach of the proposed settlement that leaves other counties and other judges in the 

affected counties to be sued in never-ending litigation and leaves the state with a crezy-quilt of 

counties electing their judges in different ways and from different electoral jurisdictions. Judge 

Wood also has serious concerns about the power of these litigants, and particularly the authority 

of the Attorney General's office, to create their own remedy for perceived vote dilution and to 

impose that remedy on the people of Texas without going through the steps required by the 

United States Constitution, the Texas Constitution, Texas statutory law and whataver federal 

order is ultimately issued (whether it is Judge King's order or that of the Court en banc or a 

subsequent panel). 

Judge Wood agrees that seulement discussions do have a place in this litigation at this 

time. The current plaintiffs’ proposal, however, is not 2 "sompromise settlement”, but a total 

surrender. The judicial redistricting plan set out in the Proposed Agreed Settlement Order sent 

to the parties on Tuesday appears to be no more than a slight reworking of the 1989 plan 

proposed by the plaintiffs and vacated by the panel opinion written by J udge King, except that 

it reinstitutes the partisan features which Judge Bunton took out of the original plan; This plan 

suffers from all the infirmities of the original plan, not the least of which is the assignment of 

judges to legislative districts (making judicial elections & tool of patronage). The plan is clearly 

unconstitutional in its assignment of two judges to each Democratic district and one judge to 

each Republican, Iam not aware of any law that would support such egregious bi for 

voters of one political party. 

I understand that Sherrilyn Ifill has proposed the creation of certal} aio in which 

judicial candidates would run at large as a corrective to the election of all judges from narrow 

Lub-districts. This is a proposal which certainly bears study. However, it does not address 

Judge Wood's most serious concern about the remaining sub-districts, which is that under a 

subdistricting system no judge is accountable to all the voters. Also, it is possible that such a 

system would present equal protection problems. I understand that you share this concern and 

applaud your insistence on county-wide retention elections. jo. 

PorTER & CLEMENTS, L.L.R     
 



  

Letter to Attorney General Morales 
February 3, 1993 | Page 3 

    Judge Wood believes that if a non-judicial remedy is devised in settlement discussions, 
that remedy should be submitted to the Texas legislature and/or to the voters of Texas, as the 
Texas Constitution requires when a restructuring of the Texas judiciary is contemplated, If the 
Texas legislature refuses to adopt the proposed settlement or some other plan and the 
promulgation of a remedy devolves on the district court, Judge Wood would envision the court 
responding 10 motions in accordance with whatever settlement terms are finally negotiated, 

Even though Judge Wood anticipates that the courts will ultimately declare that there is 
no proven violation of the Voting Rights Act, she does not believe that the statusiquo should 
necessarily be preserved, and she does not think that what is at stake in this litigation is an 
either/or situation. She would, in fact, like to see more minorities on the bench. She thinks it 
is important. But she is concerned that the requirements of law and the efficient administration 
of justice be respected in the process. 

While we do not expect you to poll every individual district Judge pr named defendant to seek a cor.sensus on everything that the State does as their lawyer, we do expect the State to 
fulfill its fiduciary duty to Judge Wood and the other defendants and to respect their stated 
wishes on matters of importance to this litigation. In that regard, it is Judge Wood's desire and 
our desire that we, as her counsel, continue to be included in all settlement conferences between 
your office and the plaintiffs. 

We are prepared to continue to participate constructively in settlement discussions, and, 
to that end, we propose that the parties consider an appointment/election plan for the selection 
of judges. In that context, we should also look at how judges gain tenure and how to provide 
professionalism and independence within the judiciary through county-wide retention elections. 
The partisanship issue is also a serious issue that needs to be discussed, but that goes along with how judicial selection and tenure are handled. We understand that the plaintiffs ate troubled about possible minority losses in county-wide retention elections. To address that concern, we further propose that information regarding existing retention election systems be solicited, I 
believe — but do not know — that current studies will show that the plaintiffs’ concerns are 
unfounded and that an appointment/retention election system deserves serious consideration. If 
Texas changes its judicial selection system, it should replace it with a selection process that is fair to all, including minorities, and that will encourage their participation, 

PORTER & CLEMENTS. L.L.R     

    
   



   

' 2= 4-83 ; TS5PM ® 214 B385100:8% 5 SENT BY: ¥ | 

Letter to Attorney General Morales February 3, 1993   
| Paged 

  

Whatever is decided by the parties, however, I reiterate Judge Wood's belief that any settlement reached at this point should be submitted to the Texas Legislature for its a proval and that the legal proceedings should not be prematurely terminated, > 

Very truly yours, 

  

   

  

  

    

J.'Eugene Clements JEC:EVK/taw 

T630C: \DOCI\BVX\WOOT?001 1288 A 

  

  

    
 



    

rst Aiiittrati Fdisol Kegion 
PAT McDOWELL 

Presiding Judge 
Administrative Assistant 600 Commerce Street, Rm. 612 Telephone SANDY HUGHES Dall. =, Texas 75202 (214) 653-7505 

(214) 653-5942 Feburary 1, 1993 Fax (214) 653-6167 

Honorable Dan Morales 
Attorney General 
State of Texas 
Austin, Texas 

Re: Lulac v. Clements, et al 

Dear Mr. Morales: 

On behalf of the First Administrative Region I urge you most strongly to pursue an appeal of the Fifth Circuit’s opinion in the above case. If there ig anything your office can do to seek an en banc hearing I believe it should be done. At a meeting last Friday of the Local Administrative Judges from this region following a discussion of the case I reached the conclusion that all the judges, not just those in Dallas County, believe that the important issues addressed in this case should not be abandoned to a three judge panel, one of whom dissented and wrote a careful and logical examination of the case law and the facts. 
Further, I do not believe any settlement of this lawsuit is in the best interests of the judiciary in Texas and should not be entertained. Since your office represents the Board of Regional Judges in this case, I assume we will be closely involved in any settlement negotiations. 
Thank you for your attention. 

(hres truly, 

Pat McDowell 

cc: All Regional Judges 
All Local Administrative Judges 

EXHIBIT 

| A" 

  

 



® LE ® 
HUGHES & LUCE, L.L.P. 

A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

1717 MAIN STREET 

SUITE 2800 

  

1021 MAIN STREET DALLAS, TEXAS 7520! 11 CONGRESS AVENUE 

SUITE 1300 (214) 939-5500 SUITE S00 

HOUSTON, TEXAS 77002 FAX (214) 939-6100 AUSTIN, TEXAS 7870! 

(713) 754-5200 TELEX 730836 (512) 482-6800 

FAX (713) 754-5206 FAX (512)482-6859 

February 2, 1993 

To: All Counsel (VIA TELECOPY) 

Re: LULAC v. Clements, et al., No. 90-8014 

Dear Counsel: 

I am writing in Bob Mow's absence in response to Bill 

Garrett's letter of today regarding a proposed Agreed 

Settlement Order. As we have previously stated, Judge Entz 

believes strongly that the current system is lawful. 

Particularly in view of the recent Fifth Circuit opinions, 

Judge Entz believes that the current system will be fully 

vindicated in the Fifth Circuit en banc and, if necessary, in 

the United States Supreme Court. 

Accordingly, Judge Entz does not agree to the proposed 

settlement or to any similar proposed settlement at this 

time. Moreover, the case cannot be settled absent Judge 

Entz's agreement. In view of that position, no representative 

for Judge Entz will participate in the meeting tomorrow. 

As a matter of record let me also note that: (1) we 

believe the proposed settlement is affirmatively unlawful and 

unconstitutional for most of the same reasons why we objected 

to the prior attempted settlement agreement and to Judge 

Bunton's interim order, and (2) the district court has no 

jurisdiction even to consider such a proposed order at this 

point. 

Very truly yours, 

Dundt Gos, 
Robert H. Mow, Jr., . e) 
David C. Godbey 
Bobby M. Rubarts 

  

ATTORNEYS FOR DALLAS COUNTY 

DISTRICT JUDGE F. HAROLD ENTZ 

EXHIBIT 

“ar 

  

 



    

TEXAS LAWYER eo March 8, 1993 

  

a 

Judicial Election Cure Proves Elusive 
Intervenor Judge 
Faces Legislators’ 

‘Personal Attack’ 

BY JANET ELLIOTT 
  

For four hours March 2, 127th Dis-. 

trict Judge Sharolyn Wood scribbled 

notes and whispered to a Harris 

County colleague as speakers told a 

special Senate subcommittee she is an 

obstacle to settling the voting rights 

suit over the way urban trial court 

judges are selected. : 

Visibly angered, Wood finally was 

called to the witness chair about 6 

p.m. Speaking calmly, she said she was 

not, as some spcakers charged, just 

trying to maintain the status quo of 

electing district judges countywide. 

She said her main objective as onc of 

two judge defendant-intervenors in 

League of United Latin American 

Citizens, et al. v. Clements, et al., No. 

90-8014, is for the Legislature, not a 

federal judge, to make any changes in 

the state's judicial election scheme. 
But Wood soon was on the defen- 

sive again, as questions from the panel 
members focused on her relationship 
with the lawyer who is representing 
her at no cost and what she would do 

if the state and the minority plaintiffs 
settled the suit. 

The heated exchange with Wood 
highlighted the emotional nature of 
the debate on how to diversify the 

Texas judiciary and the seeming in- 

tractability of a legislative or legal so- 
lution to the 4 ¥2-year-old case. 

At the same hearing in Austin, At- 

\ 

torney General Dan Morales outlined 

his plan to clect state district judges 

from subdistricts in all counties with a 

population of more than 100,000. te 

said a constitutional amendment 

would be required, a statement many 

did not want to hear because of the 

apparent impossibility of getting such 

a measure on the ballot. 

Morales said the ‘‘safest, surest 

way" to enact a plan is by a constitu- 

tional amendment. 

Oral arguments before the full 5th 

U.S. Circuit Court of Appeals are sct 

for the week of May 24, he noted, say- 

ing he hoped the Legislature would 

approve a constitutional amendment 

by that time in order to “‘moot the 

court challenge and the litigation."’ 

State Sen. Rodney Ellis, who is 

sponsoring legislation to clect district 

judges by subdistricts in cight of the 

state's largest counties, predicted 

trouble for a constitutional amend- 

ment, which would require 21 votes in 

the 31-member Senate and 100 of the 
150 representatives. Ellis, D-Houston, 

said fellow senators have told him 

“they could stop me from even bring- 

ing the bill up for debate.” Eleven 

senators can block any measure from 

reaching the floor. 

Ellis’ bill would have judges clected 

from state representative districts in 

Harris, Dallas, Tarrant, Bexar and Jef- 

ferson counties (some districts would 

clect two judges) and from commis- 

sioners court precincts in Lubbock, 

Ector and Midland counties. 

Ellis pressed Morales for ways to 
settle the suit short of a constitutional 
amendment, but the attorney general 

said there are few other options be- 

cause of the presence of the defendant- 
intervenor judges, Wood and 194th 
District Judge Harold Entz of Dallas. 

“I can't imagine [that Wood and 
Entz] would be willing to sign a doc- 
ument that would allow us to settle 
along the lines we have proposed,” 
Morales said. ‘That is the reason it's so 

important for the Legislature’ to send 
a constitutional amendment to the 

voters. 
Ellis followed with, *‘I really don’t 

think the votes will be there — to 
come up with two-thirds of the Texas 
House and Senate on a thorny, racial 
issue like this. . . ."” 
Wood was called to the witness 

stand by Sen. Jerry Patterson, R- 
Pasadena, as a resource witness on his 
merit-sclection bill, SB 255. Demo- 
cratic members of the panel, however, 
wanted to know about her fee ar- 
rangement with the lawyer represent- 
ing her in the LULAC casc, }. Eugene 
Clements, 2 namie partner in Houston's 
Porter & Clements. 
Wood said Clements and Porter & 

Clements associate Evelyn Keyes had 

spent $700,000 in attorney time on 

the case. Ellis asked whether Wood at 
onc time had asked the state to pay her 

attorneys’ fees. 
“I guess | should have been pre- 

pared to be attacked on that,” Wood, 2 
Republican, responded. 

Ellis was referring to Wood's mo- 
tion for attorneys’ fees filed in Oc- 

tober 1990. The motion asked for fees 

from the state, which had won a ruling 

from the Sth Circuit that judges were 

not ‘representatives’ covered by sec- 

tion 2 of the Voting Rights Act. That 

ruling later was overturned by the U.S. 

Supreme Court. 

   

  

   
AL oe a FJ i : 

AG DAN MORALES, wbo favors 
subdistrict elections, says the two 

Judges’ opposition makes a LULAC 

settlement all but impossible. 

Wood said at the time that her at- 
torncys were entitled to fees because 
they pushed the appeal when former 
Attorney General Jim Mattox was 
ready to settle with the plaintiffs. The 
motion prompted an angry rebuff 

from the AG's office, and the 5th Cir- 

cuit rejected the fee request. 

Entz has his own lawyers and did 

not join the fee request. 

‘Rough-and-Tumble’ Policy 

Ellis continued his line of question- 
  

. CONTINUED ON NEXT PAGE 

  

 



  

TEXAS LAWYER = March 8, 1993 
  

  

CONTINUED FROM PRECEDING PAGE 

ing by asking Wood whether Porter & 
Clements lawyers appear in her court. 

_ She said that in one case the firm did, 
and that both parties refused her offer 
to have the suit transferred. 

Ellis also asked whether Wood's 
position in the suit is supported by 
other Harris County judges — 157th 
District Judge Michael Schneider and 
269th District Judge David West were 
with her at the hearing — and whether 
they hear cases involving Porter & 
Clements 

  

*I guess this is a personal attack on 
me,” said Wood, asking whether Ellis 
was planning to complain about her 
conduct to the State Commission on 
Judicial Conduct. 

“I regret you would take it as a per- 
sonal attack,’ Ellis said. ‘You are in a 
world, judge, of rough-and-tumble 
public policy.” 

Ellis and Sen. Royce West, D-Dallas, 
then peppered Wood with questions 
about what she would do if the minos- 
ity plaintiffs and the state settled the 
case. Wood said that if the plaintiffs 
dismiss the suit, “there is no suit.” 
But, when pressed, she said she would 
object to any agreement that says 
Texas is in violation of section 2 of the 
Voting Rights Act. . 
Wood said she believes that judges 

initially should be appointed by the 
governor for full terms and then be al- 
lowed to keep their benches through 
an open election and subsequent 
retention elections. 
Wood was not the only witness to 

face tough questioning from the 3pe- 
cial subcommittee during the meeting, 
which at times resembled a revival 
meeting as spectators expressed their 
approval or disapproval of the testi- 
mony. 

The spacious committee room was 
packed, and there was a large contin- 
gent of minority lawyers and their 
supporters from Houston and Dallas. 
Some onlookers had a hard time sup- 
pressing their feelings about the tes- 
timony, heightening the tension. 
Waggoner Carr, a former House 

speaker and attorney general, ran into 
trouble when he said Ellis’ bill, SB 379, 
would take away “‘my right to elect 
judges who have jurisdiction over my 
business." 
“What makes you think that we, the : 

Hispanic voters, don't already feel like 
that?" asked Sen. Gregory Luna, D-San 
Antonio. Luna said Patterson's merit- 
sclection plan would mean that His- 
panic judges would be *‘chosen by the 
establishment, not by Hispanic vot- 
ers.” 

  

  

Another former attorney general, 
John L. Hill Jr., said article 5, section 
7a of the Texas Constitution makes it 
clear that judges cannot be elected by 
districts smaller than an entire county 
unless smaller districts are approved 
by voters. Hill, a former Texas Su- 
preme Court chief justice, said that 
even if the parties reach a settlement 
requiring subdistricts, he believes it 
would be challenged by a suit. 

**You're really just spinning your 
wheels,’ Hill said. 

No State interest? 
Earlier, former Supreme Court Jus- 

tice Oscar Mauzy disagreed that a con- 
stitutional amendment would be re- 
quired. He referred to a case he han- 
dled in the early 1960s to get single- 
member districts for the state Senate, 
saying that although the Texas Con- 
stitution said no county may have 
more than one state senator, that pro- 
vision was found to violate the U.S. 
Constitution. 

Mauzy also referred to the ongoing 
school finance case as an analogy, say- 
ing the courts may be the only way to 
change the judicial election system, 
given the current political climate in 
the Legislature. 

Sherrilyn Ifill, a lawyer with the 
NAACP Legal Defense & Education 
Fund in New York, called on the Leg- 
islature to write a solution instead of 
continuing to fight the case in court. 
Ifill represents the Houston Lawyers’ 

. Association and five African-American 
voters who are plaintiff-intervenors in 
LULAC. 
LULAC was set for en banc argu- 

ment after the dissenting judge on a 
three-judge panel, Dallas’ Patrick 
Higginbotham, urged the rehearing. 
(See “Noose Tigbtens on At-Large 
Elections,” Texas Lawyer, page 1, 
Feb. 1, 1993.) 

The panel majority Jan. 27 found 
cight counties’ judicial election sys- 
tems in violation of the Voting Rights 
Act. Higginbotham's dissent said par- 
tisan voting favoring Republican 
judges — not racism — is why minor- 

  

  

  

L
u
 

ity Democratic candidates have lost in 
recent elections. 

Ifill said that in Harris County be- 
tween 1980 and 1988, 52 percent of 
white Democratic district judge can- 
didates won in general elections while 
only 12.5 percent of African-American 
Democratic district judge candidates 
won. 

According to information supplied 
by Morales, 42 percent of Harris 
County's population is African- 
American or Hispanic, but only 8.5 
percent of the county's judges come 
from those populations. 

Ifill also said it will be difficult to 
show the state's interest in maintain- 
ing the current election system when 
the governor, licutenant governor, at- 
torncy general and Chief Justice 
Thomas Phillips all have said the cur- 
rent method of electing judges is un- 
acceptable. 

Ifill said she does not believe the 
Texas Constitution would have to be 
amended, because the jurisdiction of 
the judges would continue to be 
countywide. Ro 

  

  

 



  

State leader@sign pact 

on election of judges 
Deal restricts at-large selection in 9 counties 

By Christy Hoppe 
Astin Bureax of The Dallas Morning News 

. AUSTIN — The state's top leaders 

signed off Thursday on a proposed 

lawsuit settlement that would end 

the 116-yearold method of at-large 

elections for most judges in Dallas 

and eight other large counties. 

The plan was endorsed by Gov. 

Ann Richards, Lt. Gov. Bob Bullock 

and House Speaker Pete Laney, who 

all signed the proposed agreement 

Thursday, their aides said. Officials 

declined to give details of the plan. 

However, two legislative sources 

who have seen it said the hybrid 

plan provides that 140 judges from 

Captinued from Page 1A. 

: "Dusek said the plan is still “a 
In progress” and said it can 

na be called a settlement “until the 

tidfe gos ft.” 
hf Gr : . 

ge declined to discuss details of 
tak iplan: or its implementation, but 

fibge Lpmiliar with it said at-large 

aldotions would continue for 22 
fii ges tm six counties, but all others 
wenld run from smaller districts 

within their counties. ~~ 

In Dillas County, the plan calls 

for five of the 37 district judges to 

be ejected at large, with the remain- 

ing, 32 running from the districts 

used by state representatives, the 

sources said. The five benches that 

would continue to be elected at 

large in Dallas County are the 

194th, 203rd, 204th, 255th and 330th 

district courts. 

a1] 
: Under the plan, in Tarrant 
County, one of the 23 judges would 
be, elected at large, and in Harris 
County, nine of the $9 would run at 

  

large. Travis, Jefferson and Lub 

bock counties also would use the 

hybrid system, and all judges in 

Midland, Ector and Bexar counties 

  

would be elected from districts, the 

sources said. 

The proposed settlement was de- 

vised to end a 1988 lawsuit brought 

by the League of United Latin 

American Citizens, which is con- 

tending that the at-large method of 

electing judges dilutes minority 

voting strength. 

LULAC successfully argued be- 

fore the US. Supreme Court that mi- 

nority interests in electing district 

judges are protected by the US. Vot- 

ing Rights Act. 

  

the nine affected counties be 

_ elected from districts within the 

counties. But it also would continue 

at-large elections for 22 judges. 

Attorney General Dan Morales 

worked with “all interested parties 

to develop this document,” said 

spokesman Ron Dusek. 

“The agreement would still have 

to be passed by the majority of both 

(the House and Senate) and has no 

force and effect until then,” said 

Janet Warren, Mr. Laney's press 

secretary. . 

“That is our understanding,” she 

Please see STATE on Page 17A. 

Dan Morales . . . has worked 
with all sides to reach the 
settlement, his spokesman 
says. 

Rolando Rios, a San Antonio at- 
torney representing LULAC, could 
Dot be reached for comment Thurs- 
day regarding the settlement plan. 

The case is pending before the 
US. 5th Circuit Court of Appeals in 
New Orleans, which has agreed to 

  

“The agreement would 
still have to be passed by 
the majority of both (the 
House and Senate) and 

has no force and effect 
until then.” 

— Janet Warren, 
aide to Pete Laney, 

House speaker 
  

hear new arguments en banc, or be- 
fore the full court. 

Proponents of single-member 

districts for judges have argued 
that it would increase minority rep- 

  

Friday, March 26, 1993 Ghe Ballag Morning News 
  

  

“My attorneys and I will 

continue on before the 

en banc hearing before 

the 5th Circuit, with or 

without the attorney 

general.” 

— Judge Harold Entz 

  

resentation on court benches. In 
Dallas County, five of 37 judges are 
minorities, and in Harris County, 

five of 59 are black or Hispanic. 

Opponents of such single-mem- 
ber districts have said that judges 
should represent law and justice, 
not a small constitutency. 

The proposed settlement bas 
been crafted so that two judges, 
who have been parties in the suit 
and who have been fighting to 
maintain the current system of judi- 
cial selection, would be potentially 
eliminated from the case. 

Under the plan, Judge Harold 
Entz of Dallas and Judge Sharolyn 
Wood of Houston represent benches 
that would continue to be elected at 

large. 

Judge Entz, who holds the 194th 
seat, said Thursday that he has not 
settled the lawsuit and that all that 
he has heard about the proposed 
plan has been through rumors 

passed along to him. 

“My attorneys and I will con- 
tinue on before the en banc hearing 

  

“(When) all the parties ~ 
feel it has progressed to a™ 
certain point...then = 
they will make public 
the details and trumpe 
their success.” BE 1. 

— Ron Dusek;’ 
aide to Dan Morales, 

attorney general 
  

Fie 

before the Sth Circuit, with or with:- 
out the attorney general” Judge 
Entz said. hs 

Judge Wood is on vacation and’ 
could not be reached for comment 

Thursday. 
“(When) all the parties feel it’ 

bas progressed to a certain point} 
then they will make public the de: 
tails and trumpet their success,” he 
said. to 

that 

  

EXHIBIT 

ct" 

  

 



OFFICIAL TRANSCRIPT 

PROCEEDINGS BEFORE 

THE SUPREME COURT 

OF THE 

UNITED STATES 

HOUSTON LAWYERS' ASSOCIATION, ET AL., Petitioners 
v. ATTORREY GENERAL OF TEXAS, ET AL.; 
and 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL., 
Petitioners v. ATTORNEY GENERAL OF TEXAS, ET AL. 

CASE NO: 90-813 and 90-974 

PLACE: Washington, D. C. 

DATE: - April 22, 1991 

PAGES 1.58 

A 

* ALDERSON REPORTING COMPANY 

ULL 14TH STREET. N.W. 

WASHINGTGN. D.C. 20005-5650 

202 259-2260 EXHIBIT 

EXHIBIT A” "po 
   



  

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IN THE SUPREME COURT OF THE UNITED STATES 

- - - - -— - - -—“" -«P - eo - - eo - -X 

HOUSTON LAWYERS’ ASSOCIATION, 

ET AL., 3 

Petitioners i 1 

v. : No. 90-813 
ATTORNEY GENERAL OF TEXAS, : 

ET AL.; 3 

and te 
LEAGUE OF UNITED LATIN 4 

AMERICAN CITIZENS, ET AL., 3 

Petitioners 3 

v. : No. 90-974 

ATTORNEY GENERAL OF TEXAS, 3 

ET AL. 3 

TS AE Se i X 

Washington, D.C. 

Monday, April 22, 1991 

The above-entitled matter came on tox oral . 

argument before the Supreme Court of the United States at 

11104 a.x. 4 
APPEARANCES: 

JULIUS L. CHAMBERS, ESQ., New York, New York; on behalf 

of the Petitioners. 

RENEA HICKS, ESQ., Special Assistant Attorney General of 

1 

ALDERSON REPORTING COMPANY, INC. 
1111 POURTEENTH STREET, N.W. 

SUITS 400 
WASHINGTCN, D.C. 20005 

(202)289-2260 
(800) POR DEPO 

 



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Texas, Austin, Texas; on behalf of the Respondents. 
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he was in -- suggesting a remand, that he was suggesting a 
remand as to reconsider coverage. 

MR. CHAMBERS: If -- you can read in the brief, 

he suggests that State interest may trump the interest of 

minorities in being able to participate in the electoral 

process. 

| 7 QUESTION: Well, that may be in using the 

totality of the circumstances to decide whether there's 

been a violation. 

MR. CHAMBERS: That's correct, Your Honor, but 

again I was suggesting that that State thterens has to be 

weighed as part of the tenuousness factor in the == in the 

cause analysis of the seven factors. 

Your Honor, I would like to reserve some time 

for rebuttal. 

Lint 7 QUESTION: Very well, Mr. Chambers. 

Mr. Hicks, we’ll hear now from you. 

ORAL ARGUMENT OF RENEA HICKS 

ON BEHALF OF THE RESPONDENTS 

MR. HICKS: Mr. Chief Justice, and may it please 

the Court; %. 

I wish to address both the question of coverage 

and the question of the inapplicability, not an exemption, 

but the inapplicability of vote dilution at-large 

challenges to trial judges, the solo decision makers. And 

27 

ALDERSON REPORTING COMPANY, I~, 
1111 FOURTEENTH STREET, H.Yi. 

SUITE 400 
* WASHINGTON, D.C. 20005 

(202)289-2260 

 



  

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I first want to address the question of Coverage. 

Much to the chagrin of much of the Texas 

judiciary, many of the people that have intervened on my 

case, I do not -- I anticipate Mr. Pugh == I do not adopt 

the theory of noncoverage that Louisiana has adopted or 

that the Pifth Circuit adopted. We argued below that the 

plain Statement principle was the way to approach it. The 

problem is not that “representative” clearly excludes 

Judges. It’s that the use of the word representative” 

doesn’t clearly include them. There is ambiguity there. 

There is also some ambiguity I believe in the 

question of whether section 2(a) of the Voting Rights Act 

covers intentional discrimination. I think it was Justice 

Scalia, but I’m not sure who pointed out, that the 

language certainly doesn’t say anything about intent. The 

language of section 2(a) only talks about results. And I 

don’t believe there's the slightest indication that 
Congress meant to do away with the intent standard in 

1982. But it appears that they did. Of course, there is 

the protection of the Constitution there. It's been there 

since 1870 or 1868, depending on whether you use the 

Fifteenth Amendment or ‘the Fourteenth Amendment. 

But nonetheless there may not be an intent 

standard in section 2 anymore if you read the language 

literally. If you choose not to read the -- 

28 

ALDERSON REPORTING COMPANY, INC. 
1112 TOURTEZHTH STRIIT, d.H. 

SUITZ 400 : 
WASHINGTON, D.C. 2000S a (202)289-2260 

PON Na RMen aes en = 

 



  

1 MR. HICKS: Well, that would be closer. 1 think 

2 I Bight lose that case, but they didn’t have it in mind -- 

3 ATE QUESTION: so you think "representative is 
4 capable of covering judges (inaudible) -- 

5 MR. HICKS: It's capable of it. I don’t think 

6 common people think of judges as representatives. I don’t 

7 think a lot of informed scholars think of judges as 

8 representatives. I don’t think judges think of themselves 

9 as representatives. 1 agree that under some -- 

10 Jeffersonian democracy theory that they're representative 

11 of the people. I don’t question that at all. 

12 TH ga +7 QUESTION: Jacksonian democracy. 

13 MR. HICKS: Is it Jacksonian? Well -- 

14 ' (Laughter. 

1S MR. HICKS: I'm talking about the idea of what a 

16 representative is. 

17 Elm aT QUESTION: Jefferson was not at all in favor of 

18 electing judges. Jackson was. 

19 (Laughter. ) 

20 MR. HICKS: ‘Thank you. 1I didn’t read my amicus 

21 briefs as well as I should have. ; 

22: A Arps? QUESTION: Their names both begin with J, 

23 though. 

24 MR. HICKS: Yes. 

25 (Laughter.) 

45 

ALDERSON REPORTING COMPANY, INC. 
a SANMDTPENTY tl a N. Ww. 

wha. [ 4 Wns . 

WASHINGTON, D.C. 2000S 
1202)289- 2260 

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MR. HICKS: I actually was thinking about what 1 said and I did mean Jeffersonian because the idea of 
anybody that’s elected is a representative in some sense 
-=- that kind of theory. But at the normal common parlance 
does not speak of judges a8 representatives. The courts 
-- lower courts have -- have in a sense stumbled across 
that when they refer to Judges as not being 
representatives. And so -- 

hH1T¥ QUESTION: That's 2ll «= I -= YOU =< I take it 
you == then you aren‘t defending the judgment - you'’re 
defending the Judgment of the Fifth Circuit but not its 
reasoning. Is that it? 

MR. HICKS: That's Correct. We made this 
argument that I’m making now below. 1 have to say 1 don’t 
think it was as sophisticated as it is now -- 
wT QUESTION: We agreed to view -- what you're 

really saying is that there’s a different standard for 
judging Coverage than the Pifth Circuit used. 

MR. HICKS: Yes. 

~~ Te QUESTION: So we would have to remand.-_ 
: MR. HICKS: +I don’t understand. This -- this is 

a legal question, not a factual question. I believe 
ultimately if you disagree with me, YOu must remand. But I don’t believe on the question of Coverage you must 
remand. I -< I think this Court is quite capable of 

46 

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. i. EY, IS SUITE 400 WASHINGTON, D.C. 20005 (202)289-2260 
 



  

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MR. HICKS: Okay. 

STPvws QUESTION: Or a closer case, what if Mobile 

instead of having a three-member commission, say, it 

changed to a single mayor -- or single administrator and 

there were all sorts of good government reasons for doing 

it. It would be exempt from the act. 

MR. HICKS: Well, they wouldn’t be exempt from 

the act. 

ST es QUESTION: Exempt from section -e 

MR. HICKS: They would be exempt from an at- 

large vote dilution -- not they. 

QUESTION: Yes. SPs 
MR. HICKS: A challenge there later would be 

exempt from an at-large vote dilution challenge. There 

would be other avenues of attack. 

ccauina QUESTION: But always based on intent. 

MR. BICKS: Well, I don’t know if they all would 

have to based on the intent. Footnotes 10 and 12 of 

Thornburg v. Gingles -- in those footnotes, this Court 

said there are a host.of other section 2 kinds of 

challenges: In at-large vote dilution challenges it may 

be available. And I'm not creative enough -- I’ve gotten 

into the mindset of being a defendant in this -- these 

cases now, so I'm having a hard time thinking. 

53 

ALDERSON REPORTING COMPANY, INC. 
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(800) FOR DEPO 

 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN § 

CITIZENS, COUNCIL NO. 4434, 

et al., 

Plaintiffs-Appellees, 
No. 90-8014 

V. 

JUDGE F. HAROLD ENTZ, et al., 

C
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C
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I
 

CA
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LP
I 

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Defendants-Appellants. 

RULE 28.2.1 CERTIFICATE OF INTERESTED PERSONS 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 

4434, et al., v. WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE OF 

TEXAS, et al., Cause No. 90-8014 -- The undersigned counsel of 

record for Dallas County District Judge F. Harold Entz, 

certifies that the following listed persons have an interest 

in the outcome of this case. These representations are made 

in order that the Judges of the Court may evaluate possible 

disqualifications or recusal. 
~< 

Plaintiffs:   

LULAC Local Council 4434 
LULAC Local Council 4451 
LULAC (Statewide) 
Christina Moreno 
Aquilla Watson 
Joan Ervin 

Matthew W. Plummer, Sr. 

Jim Conley 
Volma Overton 

Willard Pen Conat 
Gene Collins 
Al Price 
Theodore M. Hogrobrooks 

Ernest M. Deckard 

Judge Mary Ellen Hicks 
Rev. James Thomas 

CERTIFICATE OF INTERESTED PERSONS - Page 1  



  

Plaintiff-Intervenors: 

  

Houston Lawyers' Association 
Alice Bonner 
Weldon Berry 
Francis Williams 
Rev. William Lawson 
DeLoyd T. Parker 
Bennie McGinty 
Jesse Oliver 
Fred Tinsley 
Joan Winn White 

Defendants: 

Dan Morales, Attorney General of Texas 
John Hannah, Jr., Secretary of State 

Texas Judicial Districts Board 
Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Michael J. McCormick, Presiding Judge, 

Court of Criminal Appeals 
Pat McDowell, Presiding Judge, lst Administrative 

Judicial Region 
Thomas J. Stoval, Jr., Presiding Judge, 2nd Administrative 

Judicial Region 
B. B. Schraub, Presiding Judge, 3rd Administrative 

Judicial Region 
Leslie Murray, Presiding Judge, 4th Administrative 

Judicial Region 
Darrell Hester, Presiding Judge, 5th Administrative 

Judicial Region 
William E. Moody, Presiding Judge, 6th Administrative 

Judicial Region 
Weldon Kirk, Presiding Judge, 7th Administrative Judicial 

Region 
Roger Jeff Walker, Presiding Judge, 8th Administrative 

Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Administrative 

Judicial Region 
Joe Spurlock II, President, Texas Judicial Council 

Leonard E. David 

Defendant-Interv 0 

Judge F. Harold Entz 
Judge Sharolyn Wood 

CERTIFICATE OF INTERESTED PERSONS - Page 2 

 



  

ive- Iv 

Judge Susan D. Reed 
Judge John J. Specia, Jr. 
Judge Sid L. Harle 
Judge Sharon Macrae 
Judge Michael D. Pedan 

Counsel of Record 

Rolando L. Rios; Garrett, Thompson & Chang, counsel for 
plaintiff-appellees, The League of United Latin American 

Citizens, Council #4434; The League of United Latin American 

Citizens, Council #4451; Cristina Moreno; Aguilla Watson; The 
League of United Latin American Citizens, Council (Statewide); 

and James Fuller 

Gabrielle KX. McDonald; Sherrilyn fill, counsel for 

plaintiff-appellees, The Houston Lawyers' Association 

Renea Hicks, Javier Guajardo, counsel for state 

defendant-appellants, The Honorable Dan Morales, The Honorable 

John Hannah, JL... Texas Judicial Districts Board, The 

Honorable Thomas R. Phillips, The Honorable Michael J. 

McCormick, The Honorable Pat McDowell, The Honorable Thomas J. 

Stoval, Jr., The Honorable B.B. Schraub, The Honorable Leslie 

Murray, The Honorable Darrell Hester, The Honorable William E. 

Moody, The Honorable Weldon Kirk, The Honorable Roger Jeff 

Walker, The Honorable Ray D. Anderson, The Honorable Joe 

Spurlock, II, Leonard E. David 

Cloutman, Albright & Bower; E. Brice Cunningham, counsel for 

plaintiff-appellants, Jesse Oliver, Joan Winn White, and Fred 

Tinsley " 

Porter & Clements; Darrell Frank Smith; Michael J. Wood, 

counsel for defendant-appellant, The Honorable Sharolyn Wood 

Hughes & Luce, L.L.P., counsel for defendant-appellant, The 

Honorable F. Harold Entz 

Wheatley & Sharpe, L.L.P.; Kaufman, Becker, Pullen & Reibach; 

Goldstein, Goldstein & Hilley, counsel for putative Bexar 

County Judge Intervenors : =) LL 

ATTORNEYS' FOR DEFENDXNP= 
APPELLANT JUDGE EN 

  

  

ERTIFICATE OF INTE D PERSONS - Page 3