Response in Opposition to Motion to Realign and to Modify Interventions of Judges Entz and Wood

    DAN MORALES 
ATTORNEY GENERAL 

  

Office of the Attorney General 
State of Texas 

April 7, 1993 

Clerk, Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC, et al. v. Attorney General of Texas, et al., 
No. 90-8014 

Dear Sir: 

Enclosed for filing in the above-referenced action are the original and twenty copies of a 
Response in Opposition to Motion to Realign and to Modify Interventions of Judges Entz and 
Wood. A telefacsimile copy was forwarded to you earlier today. 

Sincerely, 

State Solicitor 

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

CC: Counsel of Record 
Members of Judicial Districts Board 
Audrey Selden 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 

 



   
State of Texas 

DAN MORALES | 
ATTORNEY GENERAL April 7, 1993 

Clerk, Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC, et al. v. Attorney General of Texas, et al., 
No. 90-8014 

Dear Sir: 

Enclosed for filing by way of telefacsimile in the above-referenced action is a Response in 
Opposition to Motion to Realign and to Modify Interventions of Judges Entz and Wood. The 
original and twenty copies of this Response are being forwarded to you today for overnight 
delivery. 

Sincerely, 

Renea Hicks Heck 
State Solicitor 

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

cc: Counsel of Record 
Members of Judicial Districts Board 
Audrey Selden 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 

 



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN $ 
AMERICAN CITIZENS, et al., § 

Plaintiffs-Appellees, 3 

VS. § No. 90-8014 

§ 
ATTORNEY GENERAL § 

OF TEXAS, et al., § 
§ 

Defendants-Appellants. $ 

RESPONSE IN OPPOSITION TO MOTION TO REALIGN AND TC MODIFY 
INTERVENTIONS OF JUDGES ENTZ AND WOOD 

The Attorney General of Texas, on behalf of the State of Texas, as well as the Attorney 

General and Secretary of State of Texas (collectively, "the state"), responds as follows in 

opposition to Judge Entz's Motion to Realign and, If Necessary, to Modify Intervention of 

Defendant-Appellant Judge F. Harold Entz ("J. Entz Motion") and Judge Wood's Motion to 

Realign the Parties, and, If Necessary, to Modify Intervention of Defendant-Appellant Judge 

Sharolyn Wood and Strike the Attorney General's "Notice of Action Toward Settlement" ("J. 

Wood Motion"): 

Through their motions, Judges Entz and Wood seek two basic interrelated actions: a 

compelled realignment of the Attorney General with the plaintiffs-appellees; and an expansion of 

their intervention status essentially to fill the void that would be left by the compelled 

realignment. Neither action is legally justifiable. ! 

  

1 Noris it appropriate to grant the other, more minor forms of relief sought by the two judges -- the division of 
oral argument ume so that they take all of one side's time and the striking of the state's Notice of Action Toward 
Settlement. For reasons similar to those set out below concerning the prematurity of the realignment issue, it is 
premature for the Court at this point to divide oral argument time. There will be time enough to consider whether to 
take that step, either by the parties voluntarily or the Court through an order, following the completion of the round 
of supplemental briefing and the completion of legislative action on the conditional settlement. There appears to be 
no reason for striking the Notice except that Judge Wood does not approve of it. The purpose of the Notice was 
courtesy, to apprise the Court of significant developments in the litigation which might affect the Court and its 
schedule. 

 



  

® » 

Realignment 

The major premise of the part of the motions seeking to realign the Attorney General is 

that the Attorney General aligned himself with the plaintiffs-appellees when he "chose to pursue 

settlement[.]" J. Entz Motion, at 3.2 As explained in the Notice of Action Toward Resolution of 

Appeal, filed with the Court on March 29, 1993, there was then -- and still is -- no completed 

settlement among the plaintiffs-appellees and the state, only a conditional one whose conditions 

have not yet been fulfilled. Thus, it is premature to act on the realignment part of the two judges' 

motions because their underlying premise -- that there has been a completed settlement -- has not 

occurred yet. Legislative consideration is underway, but the approval that is a condition of the 

settlement proposal has not taken place. 

Judges Entz and Wood have not cited a single authority for the dubious proposition that 

settlement efforts require the formal alignment together of those engaged in the efforts. 

Obviously, the draconian step of forcibly realigning a party because of settlement efforts, even in 

heated public policy litigation, is not a legal principle that should be readily adopted, especially 

in the absence of any case law authority for doing so. In fact, governing legal principles run in 

precisely the opposite direction; they encourage settlement efforts. Adoption of the realignment 

principle urged by the two judges would be a signal for state defendants in a broad array of cases 

to remain intransigent no matter what the facts of a major public policy case, because to take 

even one concrete step toward resolution of the litigation would require realignment.3 

Interspersed through Judge Entz's motion and Judge Wood's brief in support of her 

motion, in the sections having to do with realignment, are references to public comments by the 

Attorney General about his views of the Texas judicial system and about the broad outline of the 

conditional settlement. It appears that these references are meant to buttress the argument for 

  

2:3 udge Wood, agreed as late as February 3, 1993, "that settlement discussions do have a place in this litigation at 

this ume." See J. Entz Motion, Exh. A at 2. 

3 The Court has approved settlement efforts in a Louisiana case paralleling this one in many respects. See 
Chisom v. Edwards, 970 F.2d 1408 (5th Cir. 1992) (setting up mechanism for effectuation of settlement). 

 



  

realignment. That public commentary has occurred about the conditional settlement is 

unremarkable; it says nothing about realignment. Major public policy issues affecting Texas 

citizens are involved; public debate and discussion are important, not just acceptable. Moreover, 

if one of the points of the discussion is supposed to be that criticism of the current Texas judicial 

selection system somehow compels a judicial order placing the critic on the side of the plaintiffs 

in this litigation, then the Attorney General will have to be joined by a host of other critics such 

as Judge Wood herself, who testified before a state Senate special subcommittee on March 2, 

1993, that she was not in favor of the status quo in our state district judge selection system and 

that she found the system "very unfair to appointees.” (3-page excerpt attached). Another such 

critic is Chief Justice Phillips of the Supreme Court of Texas who on February 23, 1993, 

delivered his State of the Judiciary Address to the Joint Session of the 73rd Legislature, stating at 

page 7 of his address: "One thing can be said with confidence about our current system of 

choosing judges: No one likes it. Opinion polls suggest that it enjoys little public confidence. 

Even the judges selected under this system do not support it." 

Finally, another aspect of the argument for realignment is the effort to depict the Attorney 

General and the plaintiffs-appellees as working towards settlement to the complete exclusion of 

the intervenors and others. This effort fails to acknowledge the quite public efforts to include all 

interested entities in working towards a solution. Early on in the process, Judges Entz and 

Woods were invited to attend meetings that were termed settlement discussion meetings. There 

were discussions with Chief Justice Phillips, and a meeting was rescheduled to accommodate his 

schedule (although ultimately he was unable to attend for other reasons). Representatives of 

Judge Wood participated in several of these meetings. J udge Entz's representatives chose to play 

a largely non-participatory role. See J. Entz Motion, Exh. C. The Attorney General conducted 

public hearings on the judicial selection process in Houston and Dallas on March 1st and 5th, 

respectively, at which there was no testimony from representatives of either Judge Wood or 

Judge Entz.4 It was only toward the end of the process, when the gulf among the participants 
  

4 These public hearings, plus research into how other states subject to similar voting rights suits had resolved their 
litigation, formed the backdrop for the Attorney General's approach to the conditional settlement. 

-3- 

 



became unbridgeable, that the Attorney General and the plaintiffs-appellees worked out the 

conditional settlement of which the Court has been given notice. 

The overriding point of this section, as the two judges themselves acknowledge, see J. 

Entz Motion at 4, and J. Wood Motion at 4, § 11, is that any issues arising from the settlement 

are not ripe because no motion regarding the settlement has been presented to the Court. Until 

then at a minimum, the realignment issue presented by Judges Entz and Wood is not ripe either. 

E : ri : 

Turning to the two judge's efforts to expand the scope of their intervention, it is important 

to note at the outset what the Court already has held in this case respecting interventions by 

judges in their personal and official capacities. First, judges may not intervene in their official 

capacities because they are not real parties in interest. LULAC v. Clements, 884 F.2d 185, 188- 

89 (5th Cir. 1989). Second, this Court already has held that Judge Wood's intervention -- which 

precisely parallels Judge Entz's -- is only in her personal capacity as a sitting elected judge, 

LULAC v. Clements, 923 F.2d 365, 367 n.1 (5th Cir. 1991). 

These two capacities -- personal and official -- are treated under the law as though they 

involve two different entities or parties. See Karcher v. May, 108 S.Ct. 388, 393 ( 1987). Thus, 

the two judges’ efforts to expand their interventions to encompass all the targeted counties must 

be evaluated in light of their being before this Court only in their personal capacities. As this 

Court held in the first LULAC intervention appeal, elected judges appearing in their personal 

capacity "arguably have personal interests in their office or equitable interests in the remedy 

fashioned by the court." 884 F.2d at 188. Thus, Judge Entz's personal-capacity involvement 

extends no further than the legal ability to protect his personal interests in his office, interests 

which extend no further than the 194th Judicial District court to which he was elected and in 

which he is the incumbent judge. Judge Wood likewise is confined to the 127th Judicial District 

court to which she was elected and in which she is the incumbent judge. Their interests do not 

extend beyond the narrow confines of their two judicial districts because beyond those confines 

   



  

each of them would be attempting to act as something other than a "sitting elected judge", 

LULAC, 923 F.2d at 367 n.1, protecting her or his "continued tenure." LULAC, 884 F.2d at 188. 

Insofar as the record shows, no one outside of Dallas County has had an opportunity to vote for 

or against Judge Entz in any kind of contested political race. Additionally, no one inside Dallas 

County has had an opportunity to vote for or against Judge Entz for any office other than state 

district judge. The jurisdictional authority of an elected state district judge in Dallas County falls 

far short of the authority to speak for the state in a federal judicial proceeding under the Voting 

Rights Act. The same observations apply to Judge Wood and her Harris County location. 

Judge Entz invokes Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc), in support of 

his effort to have this Court expand the scope of his intervention to encompass all the targeted 

counties in the lawsuit. That is to say, Judge Entz argues that Baker v. Wade is authority for his 

being able to represent the state in the instant appeal. Baker v. Wade does not offer such 

authority. 

In Baker, the district attorney authorized by this Court to represent the state's interests on 

appeal was a "proper official under Texas law to represent the state." 769 F.2d at 291. The 

constitutionality of a criminal law was at issue, and the district attorney, as an official-capacity 

party, was "empowered by Texas law to enforce criminal laws[.]" Id. at 292. As explained 

earlier in this response, a state district judge has no powers respecting the shaping of judicial 

districts in the Texas judicial selection system. Authority over the forming of those districts lies 

with state legislative bodies, not state judges. See LULAC, 884 F.2d at 187. Thus, in this very 

basic respect, Judges Entz and Wood are in a fundamentally different position, in terms of 

Justiciible legal interest, than the district attorney was in Baker v. Wade. The power the district 

attorney had there, which gave him a justiciable interest, is a power the two judges lack here.> 

The challenge in this case is in reality against the state, not against the more parochial, 

limited interests of two incumbent district judges. This Court has said as much when it stated en 

banc that the plaintiffs here are "[s]uing Texas through its officials," LULAC, 923 F.2d at 367. 
  

5 Additionally, the two judges are not members of a defendant class, as was the district attorney in Baker, and 
they are not under an injunction, as was the district attorney in Baker. 

-5- 

 



  

Similarly, any remedy in this case lies in reality with the state, not with the two judges. The 

panel opinion of January 27, 1993, correctly observed that "[t]he affected political subdivision in 

this case is the state of Texas." Panel Op. at 208. To let those who are not really challenged and 

who lack the authority to provide a remedy if the challenge succeeds act for the entire state, as 

the two judges would have the Court do, would be to convert this case from an important piece 

of public policy litigation into little more than a public forum for debate. 

There is no legal basis for this Court's acting at the appellate stage to expand the scope of 

the two judges’ intervention to encompass representing the state's interests in all the targeted 

counties. The limited role of the judges in their personal capacities and the state-level challenge 

of the case do not permit such a step being taken. 

The Role of the Attorney General 
This Response is not the appropriate place for an extensive review of the roles and 

responsibilities of the Attorney General of Texas in representing the state's interests in litigation 

of the sort now before the Court; however, because aspersions have been cast on whether the 

Attorney General is performing his role, a limited discussion is appropriate to correct the 

misimpressions that might be left. 

The Constitution of Texas designates the Attorney General as the chief legal officer of the 

state, responsible for representing he state in civil litigation. TEX. CONST. art. IV, § 22, interp. 

commentary (Vernon 1984). See McGee v. Estelle, 722 F.2d 1206, 1212 & n.18 (5th Cir. 1984) 

(recognizing the Attorney General as the state's chief legal officer). As such, he is the sole state 

official authorized by law to speak for the collective interests of the state in civil litigation and is 

cloaked with "broad judgment and discretion" and must remain free to exercise his discretionary 

legal authority in an independent manner "which will not be controlled by other authorities." 

Charles Scribner's Sons v. Marrs, 262 SW. 722, 727 (Tex. 1924). 

The Attorney General's broad authority extends to the control of litigation involving other 

statewide constitutional officers. See Scott v. Exxon, 763 S.W.2d 764, 767 (Tex. 1988) (error for 

court to rely on stipulation signed by GLO Commissioner because it was not approved by the 

 



  

Attorney General); Bullock v. Texas Skating Ass'n, 583 S.W.2d 888, 894 (Tex.Civ.App. -- Austin 

1979, writ ref'd n.r.e.) (it is within the discretion of the Attorney General, not the Comptroller, to 

decide whether to appeal a case in which the state had experienced an adverse judgment). The 

Attorney General's authority also extends to the control of litigation involving state agencies, as 

recognized by this Court in applying state law. See United States v. Texas, 680 F.2d 356, 368 & 

n.16 (5th Cir. 1982) ("the Attorney General enjoys an exclusive right to represent state 

agencies"). 

Finally, and of special pertinence to the efforts of the two judges to call into question any 

Attorney General steps toward possible settlement of the issues in this case, the Attorney 

General's authority encompasses the authority to settle litigation. Recently, seven of the nine 

Texas Supreme Court justices agreed that the Attorney General is "constitutionally empowered 

[under the Texas constitution] to execute a settlement agreement” in litigation challenging a 

legislative redistricting plan. Terrazas v. Ramirez, 829 S.W.2d 712, 747 (Tex. 1991). 

This broad authority extends to litigation in the federal courts because "[t]he allocation of 

authority among state officers to represent the State . . . is, of course, wholly a matter of state 

concern," New York v. Uplinger, 467 U.S. 246, 247-48 n.1 (1984). This discussion of the state 

constitutional and case law authority for the exercise of the Attorney General's broad powers in 

conducting litigation for the state has been necessitated by the two judges' suggestion that the 

Attorney General somehow has avoided the duties of his office -- and consequently must be 

realigned -- by trying to resolve a lawsuit that started five years ago, has gone to the Supreme 

Court once, and been through three opinions by this Court already. The authorities show that the 

Attorney General's actions rest securely within the long-recognized powers of his office. 

The Auack on the Settlement Agreement Itself 

It bears re-emphasis that, as Judges Wood and Entz concede in their motions, the 

appropriateness or fairness of the settlement agreement is not now before the Court. Despite this 

basic understanding, the two judges nonetheless expend considerable effort in deriding the 

 



  

" » 

conditional settlement (while spending no time recognizing its effort to resolve the racial vote 

dilution issue lying at the heart of the lawsuit) and arguing for its rejection. 

If effectuated, the settlement agreement will not escape judicial review. That review, for 

fairness, will be by the district court, if the Court follows the precedent of the analogous 

Louisiana settlement procedure reported in Chisom v. Edwards, 970 F.2d 1408 (5th Cir. 1992). 

Judges Wood and Entz will be able to lodge their challenges through that procedure and be given 

the full process due. 

That they will be able to lodge their challenges, however, does not mean that they are 

destined to prevail in their complaints. As the Supreme Court has written: 

It has never been supposed that one party . . . could preclude other 
parties from settling their own disputes and thereby withdrawing 
from litigation. Thus, while an intervenor is entitled to present 
evidence and have its objections heard at the hearings on whether 
to approve a consent decree, it does not have the power to block 
the decree merely by withholding its consent. 

Local Number 93, International Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29 

(1986). 

The two judges' opportunity to argue against the conditional settlement is just one of the 

reasons the case of Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984), relied upon by Judge 

Wood, provides no support to her effort to derail the settlement effort at this stage. In Overton, 

this Court refused to mandamus a federal district court to immediately approve a proposed 

consent decree in a voting rights lawsuit; however, the situation in Overton differs fundamentally 

from the one here. There, the effort was to settle without a hearing; here, there is no such effort, 

the parties to the settlement recognizing full well that a district court hearing will be necessary. 

There, the settlement was being moved forward without there ever having been evidence 

presented of a violation; here, there has been a full trial on the merits and a subsequent liability 

determination. Thus, the holding of Overton does not speak to the scenario that would be 

presented in this case, once the settlement ceases to be conditional and is moved toward 

effectuation. 

 



  

Judges Wood and Entz's recitation of their problems with the conditional settlement 

should not distract the Court from the proper focus of the two judges' motion. It is premature to 

consider them inasmuch as it is premature to consider the settlement itself. They will have an 

opportunity to complain fully, and the signatories to the settlement will have an opportunity to 

offer full rebuttal to the complaints. For now, though, it is enough that some of the parties to this 

action are making a genuine effort to do what courts nearly always urge parties to do in 

litigation: resolve a contentious, difficult issue on the basis of a settlement rather than a court 

order. It would be ironic if this kind of effort were discouraged by the courts in a legal setting -- 

voting rights and the electoral arrangements of state institutions -- in which the courts are 

supposed to act with special delicacy to avoid interfering with state interests and choices. 

CONCLUSION 

The motions of Judges Entz and Wood should be denied in their entirety. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

 



  

State Solicitor 

2) 
A LA Il 

JAVIER GUAJARDO 
Special Assistant Attorney General 

; / 
f 347] 73 La pls 
  

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

ATTORNEYS FOR 
STATE OF TEXAS AND APPELLANTS 
ATTORNEY GENERAL AND SECRETARY OF 
STATE 

CERTIFICATE OF SERVICE 

I certify that on the 7th day of April, 1993, I sent a copy of the foregoing document by 
first class United States mail, postage prepaid, to each of the following: William L. Garrett, 
Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, 
Milam Building, Suite 1024, 115 E. Travis Street, 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, 7800 N. Mopac, Suite 215, Austin, Texas 78759; 
Edward B. Cloutman, III, 3301 Elm Street, Dallas, Texas 75226-1637; E. Brice Cunningham, 
777 South R. L. Thomton Frwy., Suite 121, Dallas, Texas 75203; J. Eugene Clements, Porter & 
Clements, 3500 NCNB Center, P.O. Box 4744, Houston, Texas 77210-4744; Robert H. Mow, 
Jr., Hughes & Luce, 1717 Main Street, Suite 2800, Dallas, Texas 75201; Jessica Dunsay Silver, 
Department of Justice, P. O. Box 66078, Washington, D. C. 20035-6078; Tom Maness, Jefferson 
County Courthouse, Beaumont, Texas 77701; Seagal V. Wheatley, Wheatley & Sharpe, Frost 
Bank Tower, Suite 1650, 100 West Houston, San Antonio, Texas 78205; Russell W. Miller, 
3300 Texas Commerce Tower, Houston, Texas 77002; and Joseph D. Jamail, 500 Dallas, Suite 
3434, Houston, Texas 77002. 

ATTN \ 

ReneaH icks 
  

 



  

TEXAS SENATE STAFF SERVICES 
paj03-05-93 
COMMITTEE OF THE WHOLE SENATE ON REDISTRICTING. ETHICS & ELECTIONS 
SPECIAL SUBCOMMITTEE ON SB 379, SCR 28, SB 255 AND SJR 11 
MARCH 2, 1993 
TAPE 1 

(Senator Ellis in the Chair) 

CHAIRMAN : Committee of the Whole on Redistricting and Ethics, 
ah, Subcommittee for purposes of hearing these bills will come to order. A couple of 
housekeeping matters that I'm gonna go over after we ah call the roll. 

CLERK Elis. 
CHAIRMAN : Here. 

CLERK :  Carriker. 

CARRIKER : Here. 

CLERK : Luna. Patterson. 
PATTERSON : Here. 
CLERK : : Shapiro. 
SHAPIRO : Here. 
CLERK : Sibley. 
SIBLEY : Here. 
CLERK : And West. 
CHAIRMAN : A quorum being present, there are a number of 

Committee members that will have to float from room to room, including the, the Chair, 
I'll have to go and vote in a couple of other rooms ah periodically. There are a good 
number of people who have signed up to testity on the bills that are before us today. 
Obviously it has generated quite a bit of interest. I'm gonna suggest to members of the 
Committee, if it's alright with ah you all, maybe the way we'll do it is, if we ah are going 
to lay out Senate Bill 379 and Senate Concurrent Resolution 28 first, the bill by Elis, the 
Resolution by Carriker, ah, and then after that take Senate Bill 255 by Patterson and SJR 
11 by Senator Patterson. Maybe what we oughta do is altemate people who wanna 
testify for a given bill and people who wanna testify against ah a given bill, with the 
exception of a few people ah who are being requested by the author of each of the bills, 
or resolutions, you may call a few people up on your side ah intially. The Attorney 
General 1s trying to be In two places at one time. | gon't think he nas arrived yet but 
wnen he does arrive here, ah, we'll probably--we will stant with the Attorney General, ah, 
and then ah I'm gonna have Justice Mauzy and Sherrilyn Ifill and Rolando Rios ah testity 
on my bill, and then after that | would suggest that we alternate people who wanna testify 
for and people who wanna testify against my bills. And Senator Patterson, | would 
suggest when we get to yours we do likewise. | would ask the people who signed up to 
testity, if you hear someone who sonra covered the points that you wanted to make, ah, 
maybe net quite as eloquently as you would covered them. but if they did an adequate 
JOD. an. wnat you might ao is simply ah submit written testimony Or sign up as a resource 
Person. an. when you come up Just say you agree with someone else said, if not, it will 
== ~=Z"ut 10:00 o'clock tonight before we get out of here. Also let me sugges* ial. nave 
been told that ah Economic Development needs me for a vote. Ah. ah | have also been 
10ld that ah. an it may be wise for us to ah. ah leave all four of these matters pending SO 
that if there's some people who have not testified at the end of the day. but wanna testify, 
we can aive you a chance to testity. If someone 1s tor one of my bills, or the resolution 
by Senator Carriker, and you wanna work with a working group of people to try and 
perect some things betore we send it to the ah Committee of the Wnole. assuming there 
are enough votes in this Committee to get nt out. an, | would suggest that ah we're not 
gonna have a vote today. Senator Patterson. unless you push for a vote on yours today. 
an. I'd also suggest that maybe if there's some changes that you wanna make during the 
course of a week, we could do that, but if you want a vote today we'll certainly do it. Ah, 
with that let me ah, ah turn the gavel over to the ah, the Chair of the. the Standing 

 



  

TEXAS SENATE STAFF SERVICES 

paj03-10-83 

COMMITTEE OF THE WHOLE SENATE ON REDISTRICTING, ETHICS & ELECTIONS 
SPECIAL SUBCOMMITTEE ON SB 379, SCR 28. SB 255 AND SJR 11 
MARCH 2. 1993 

TAPE 3 

17 

WOOD : Yes. 
ELLIS - ---are representing you at the settiement talks? 
WOOD : Yes. My husband is an attorney In the lawsuit also. 

He is a licensed attomey and he--both of them, both of them, we felt it important enough that both of 'em attended the meetings that we were invited to when they weren't in trial. 
Matter of fact my husband was in trial in front of the House of Representatives, an election contest suit, on the day of the third meeting. And the House thought he oughta 
De there trying their lawsun, and so he did not go to the settiement meeting, having been 
requested by the House to be in the House. So-- 

ELLIS : Well he won. 
WOOD : Huh? He won, yes he did. And so that was the case 

that--that's the only time my husband and Gene Clements--Gene was in trial in"another 
lawsuit. 

ELLIS © Yeah let me, let me--- 
WOOD : But other than that we have been at every meeting, we've tried to be constructive. You may not have seen our letter, and I--if | could | would like to send you a copy of the letter that we sent the Attorney General when we were 

concemed that we were being shut out of the settlement discussions. 
ELLIS : One last point, then I'll stop. 
WOOD : Okay. 
ELLIS : | think what they were asking over here a second ago, my colleagues was, whether or not the state could settle the lawsuit. The Attomey 

General has taken the position that he cannot settle the lawsuit with the plaintiffs because 
ot the two individuals who are in the lawsuit as intervenors. So what they were asking, 
| think, was whether or not if the Attorney General and the plaintiffs worked up a 
settlement. took it to the federal court, what would happen then. I'm told that you all 
would go in and move for substitute counsel to be put in the place of the Attorney 
General. namely yourselves—- 

wOOD © Ithink it was interesting to listen to them tell me what 
the research was, maybe my lawyers should have done. My lawyers have certainly not 
looked at that. | know of nothing that they were talking about, hadn't been contemplated 
by me or talked about. Settlements of lawsunts that I'm tamiliar with is when the case is 
settled the plaintiffs come in and dismiss their case. And if you're--wnat you're talking 
about 1s like In the prison sunt wnere the state settled by coming in and asking a federal 
coun to finC tne state in violation, yes, | have a probiem wrth that. But | have no problem 
with the settlement reached through the Legislature complying wrth the Constrtution, the 
laws of the State of Texas. and the plaintitts walking in and dismissing their case. That, 
10 me. 1s a settlement of a lawsutt. 

ELLIS : Okay, but you're not for the status quo though. 
WOOD zi "No si. 
ELLIS © You're against the status quo. 
wOQOD - | believe that there should be changes made in the 

current selection system to have a, a ah, a better system tor--sometimes | say getting and 
keeping our job. but actually it's for the selection and tenure of judges, that we need to 
reform that system in Texas, it's long overdue. 

ELLIS : What about on the diversity issue? On that matter--- 
WOOD : What is diversity issue? 
ELLIS :  -—-the subject of lawsuit in terms of more minorities 

being on the bench. 

wOOD Absolutely. 

   



  

  

  

* » 

TEXAS SENATE STAFF SERVICES 
paj03-10-93 
COMMITTEE OF THE WHOLE SENATE ON REDISTRICTING. ETHICS & ELECTIONS SPECIAL SUBCOMMITTEE ON SB 379. SCR 28. SB 255 AND SJR 11 
MARCH 2, 1993 
TAPE 3 

18 

ELLIS . © You think there's a need to change the system so that 
more minorities—- 

wOOD : Absolutely. 
ELLIS © ---being on the bench. You think there's a need to 

change the system so that more minorities— 
WOOD : Absolutely. 
ELLIS + -—can be elected to the judiciary of Texas. 
WOOD : Absolutely. I've never wavered on that. 
ELLIS : But you don't wanna say, of course, publicly how you 

think we oughta change it. 
woOD : | can--| will tell you, | feel so bad about taking the time, 

I've been sitting in a--now | know what my bench is like in the hall when | stick witnesses 
out there all day, ah, but | will be glad to tell you, we've mentioned it briefly on the phone 
and didn't have an opportunity, really, because our schedules to foliow up. 

ELLIS : : Don't let me push you to say something that you have 
a probiem with. 

WOOD : No, | don't have a problem with it, I've just never, I've 
never really thought it was--I've never really thought anybody really wanted to hear my 
ideas on it, so I've never mentioned it. But ah | believe strongly that the Govemor is 
perfectly ableble~able to appoint people that reflect and will meet the needs of the 
minority communities, because of the political pressures through partisanship. And |, |— 
just like you were able to accomplish with Judge Jones. | absolutely believe the Governor 
will be sensitive and will do that job. And as | mentioned before, | have a real problem 
with smoke filled room politics, ‘cause | sure didn't come out of that side of politics, | 
came trom the volunteer, get out and get yourself elected side. ‘| do have a problem on-- 
the current system. | believe, is very untair to appointees. Very few appointees survive 
In Harns County. We have a very short shelf life as judges when we've been appointed 
in Harns County, and that's where we need the help. And my Own experience is 
illustrative of that. Ah, | got appointed in—on October the 29th. somebody filed against 
me in January and | was gone the next November. | mean it's a quick spin for 
appointees in Harris County, and | really believe that appointees need a fairer shot at 
proving tnat they're good judges. because ev--judges like me, who did not come from the 
gowntown iaw firms, | think we can win our point when we demonstrate that we're 
Cabat = anc able to be juages and the bar will support us. But if the minute you're 
appomiec people are already running and shooting at ya, you don't have much of a 
chance In our current system there have been very few appointees survive in Harris 
County in the last decade. Republican appointees, in the last six years, have fared better 
than Democrat appointees, but it i1s a high monality rate to be an appointee in Harris 
County And so as you and | discussed for--because of a friend of ours who was running 
on the last election, | would very much like the Legislature to give the judge a free ride 
at that first election. Give them a chance to prove their metal. and the bar will support 
em. | am living proof of that, okay, that they will suppor you. wnen the--downtown law 
firms will suppor you wnen they get to know you. And then what y'all do about the 
selection process after that. you know, whether you wanna have some sort of elections 
Or whether you go to retention elections, | personally believe there oughta be some open 
election at that pont, and then after, after it some time decide that judges have been 
elected enough, your decision, and go to retention elections. And that's what | personally 
think. 

CHAIRMAN © Interesting. interesting proposition. we might want the 
same thing for the legislators. Suppose we could discuss It---