Secretary of State George Bayoud's Emergency Application for Stay; Defendant's Notice of Designation of Independent Counsel

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE PIPTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

V. NO. 
  

JIM MATTOX, et al., 

Wh
 

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Defendants-Appellants. 

SECRETARY OF STATE GEORGE BAYOUD'S 
EMERGENCY APPLICATION FOR STAY 
  

  

TO THE HONORABLE COURT OF APPEALS: 

Defendant, Secretary of State George Bayoud, moves the Court 

for entry of an immediate stay of an Order entered by the 

Hon. Lucius D. Bunton in Cause No. MO-88-CA-154 (W.D. Tex.) on 

January 2, 1990, pursuant to 28 U.S.C. §§ 1292(a)(l) and 1292(b) 

and Rule 8 of the Federal Rules of Appellate Procedure, for the 

following reasons: 

PRELIMINARY STATEMENT 
  

1. Rule 8(a) of the Federal Rules of Appellate Procedure 

provides that this Emergency Application for Stay may be made to 

this Court because application to the District Court is not 

practicable in this case. The District Court has already denied 

all applications for stay by the Defendant and Intervenors in this 

case. Accordingly, further applications for stay to the District 

Court would be a futile act and impracticable within the meaning 

of Rule 8(a). 

 



2. Additionally, this Emergency Application for Stay adopts 

and is made in support of the Emergency Application for Stay which 

was filed by Defendant-Intervenor-Appellant Dallas County District 

Judge F. Harold Entz ("Entz Application for Stay"), and Defendant- 

Intervenor-Appellant Harris County District Judge Sharolyn Wood 

("Wood Application for Stay") in tnis proceeding on or about 

January 3, © 1990. To ‘allow the expeditious filing of this 

Application, all references to Court Documents in Bayoud's 

Application for Stay may be found in the Entz Application for Stay, 

and do not independently accompany this Application. Secretary 

Bayoud will send all referenced documents under separate cover as 

soon as possible. 

3. Further, this Emergency Application for Stay’ is 

independently made pursuant to Rule 8 of the Federal Rules of 

Appellate Procedure on behalf of Bayoud. 

4. This emergency stay is requested in order to prevent a 

chaotic condition being created within the judiciary of the State 

of Texas prior to this Court's having an opportunity to review the 

District Court's Order. 

5. Plaintiffs in this action seek to apply Section 2 of the 

Voting Rights Act, 42 U.S.C. § 1973, to the district courts of nine 

urban counties in Texas. Those nine counties include Harris, 

Dallas, Tarrant, Bexar, Travis, Midland, Jefferson, Lubbock, and 

Ector Counties. Plaintiffs claimed that county-wide, partisan 

elections of judges in those counties unlawfully diluted the voting  



  

rights of minority voters and that the system of county-wide 

elections was unconstitutionally discriminatory. 

6. George Bayoud is a Defendant herein, and as Secretary of 

State of Texas is the chief election officer of Texas charged with 

the legal duty of administrating the election laws of Texas. 

7. Trial of Plaintiffs’ claims was held during the week of 

September 18, 1989. On November 8, 1989, the district court 

entered an Order finding in favor of Plaintiffs in all nine 

counties (the "November Order," see Exhibit C of Entz Application 

for Stay), though also finding that Texas’ system of county-wide 

elections does not violate the Constitution. In addressing the 

numerous factual and legal defenses to Plaintiffs’ claims, although 

ruling for Plaintiffs, the district court noted that the 

application of the Voting Rights Act to judicial elections "is not 

a sphere of icy certainty." (See Exhibit C at 93 of Entz 

Application for Stay). 

8. The November Order requested the Governor of Texas to add 

the issue of judicial election to the agenda for the special 

session of the Texas Legislature scheduled to address workers 

compensation reform; the November Order indicated that the district 

court would consider interim relief if no state-sponsored plan were 

presented by January 3, 1990, the filing deadline for the 1990 

elections. On December 11, 1989, Governor Clements and counsel for 

the parties met with the District Court, at the Governor’s request. 

The Governor advised the District Court that it would be impossible 

for the State of Texas to propose a plan before January 3 and 

-_3 = 

 



  

requested the District Court to allow more time for the state to 

consider a remedy, while simultaneously permitting an expedited 

appeal of the November Order. (See Exhibit H at 3 of Entz 

Application for Stay). 

9. The District Court did not agree to permit additional 

time and instead solicited submission of "interim plans" to provide 

a framework for holding the 1990 Texas judicial elections. On 

December 21, 1989, Plaintiffs and the Attorney General (over the 

objection of all other individual State Defendants, see Exhibits 

E-3, G of Entz Application for Stay) submitted a proposed interim 

plan (the "Mattox-LULAC Plan," see Exhibit E-2 of Entz Application 

for Stay) for the 1990 elections. Essentially, the Mattox-LULAC 

Plan assigns judicial spots to state legislative or JP districts 

in a form of quasi-single member districts. It retains county- 

wide jurisdiction and venue, but restricts voting to voters within 

the district. Because the number of judicial positions is greater 

than the number of legislative districts, some legislative 

districts would get "extra" judges; the districts with higher 

minority populations were allocated the "extra" judicial seats. 

Additionally, the Mattox-LULAC plan effectively mangles Texas' 

system of judicial specialization through civil, criminal, family, 

and. juvenile courts and. the continuity of court dockets by 

permitting the presiding administrative judge for each county to 

assign specializations and dockets to winning candidates after the 
  

election. 
  

 



  

10. On January 2, 1990, the district court entered a slightly 

modified form of the Mattox-LULAC Plan (the "January Order," see 

Exhibit M of Entz Application for Stay). Most significantly, after 

having ruled (improperly) that the partisan nature of Texas' 

judicial elections was irrelevant to a Voting Rights Act claim (see 

Exhibit C at 88-89 of Entz Application for Stay), the January Order 

abolishes partisan judicial elections in Texas, calling for a non- 

partisan general election on May 5 with a runoff on June 2, 1990. 

The Order preserves the aspect of the Mattox-LULAC Plan that 

requires candidates to run for numbered "places" in special 

election districts; only after the election will the 

"Administrative Judge" determine whether the voters have elected 

a judge of a civil, criminal, family or juvenile court. Of course, 

this further confuses voters in their already-difficult efforts to 

make an informed choice between judicial candidates, since now even 

legal experience in a particular area is of questionable relevance 

to a voter given that no one will know until after the election 

what type of bench the prevailing candidate will occupy. 

11. Secretary of State George Bayoud had previously requested 

the district court to certify its November Order for interlocutory 

appeal under 28 U.S.C. § 1292(b) and withhold any interim order 

pending resolution of that appeal. {See Exhibit D of Entz 

Application for Stay). In its January Order, the district court 

granted the request to certify the November Order for Interlocutory 

Appeal and denied all requests for stay (see Exhibit H at 8 of Entz 

Application for Stay) and called for its interim plan to take 

-5- 

 



  

immediate effect. On January 5, 1990, George Bayoud filed his 

Notice of Appeal from the January Order. In view of the January 

Order, this Court has jurisdiction over this appeal and motion 

under 28 U.S.C. § 1292(aj(l). 

12. Aside from the substantive errors in the January Order, 

the Order is insufferably insensitive to the complexities of Texas 

election procedures. 

In awarding or withholding immediate relief, a court is 
entitled to and should consider the proximity of a 
forthcoming election and the mechanics and complexities 
of state election laws, and should act and rely upon 
general equitable principles. With respect to the timing 
of relief, a court can reasonably endeavor to avoid a 
disruption of the election process which might result 
from requiring precipitate changes that could make 
unreasonable or embarrassing demands on a State in 
adjusting to the requirements of the court's decree. 

  

  

  

  

  

  

Reynolds v. Sims, 377 U.S. 533, 585 (1964) (emphasis added, quoted   

in Chisom v. Roamer, 853 F.2d 1186, 1189 (5th Cir. 1988)). As 
  

indicated in the objections to the Mattox-LULAC Plan from the 

Secretary of State (see Exhibit G-1 of Entz Application for Stay), 

the January Order fails to consider the complexities of Texas' 

electoral system. Further, the January Order fails to account for 

the logistical requirements of closing candidate filing enough 

ahead of the election to permit ballot preparation and absentee 

voting; it fails to provide for time or costs in publishing notice 

of the election; it fails to provide for sufficient time for a 

canvass of the returns before the runoff. The January Order is 

plainly a "precipitate change] that [w]ould make unreasonable 

[and] embarrassing demands on a State in adjusting to the 

requirements of the court's decree." These substantive and 

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procedural arguments and others showing the error in the January 

Order are stated more fully in Judge Entz's Objections and Motion 

for Stay (Exhibit F of Entz Application for Stay), and his Post- 

Trial Brief, which George Bayoud incorporates by reference. 

13. Finally, the January Order is in error because it failed 

to give the State of Texas a reasonable opportunity to consider 

remedies. As the Governor noted in the December 11 meeting and in 

his letter (see Exhibit G-3 of Entz Application for Stay) the 

district court did not permit sufficient time for the Texas 

legislature to consider judicial selection. As the Court is well 

aware, in the fall special session the Texas legislature was 

occupied with the culmination of a four-year effort to reform the 

Texas workers compensation system, and will be similarly involved 

this spring with an earlier judicially-required overhaul of public 

school financing. Additionally, as the Governor noted, providing 

a reasonable time for the legislature to consider the issue would 

concurrently give this Court time to review the underlying 

liability findings in the November Order to determine whether 

destruction of the Texas judicial system is really necessary. 

14. The risk of irreparable harm here is dramatic. Adoption 

of an interim remedy in this action through requiring a form of 

single member judicial districts will inevitably result in massive 

turnover in judicial personnel; some judges will determine that it 

1s not worth the effort for them to struggle for a four-year term 

under circumstances that will change. If the ruling on liability 

is subsequently overturned by this Court, as George Bayoud is 

-7- 

 



confident it will be, there is no way to undo the instability to 

the institution of the judiciary of the State of Texas that will 

obviously take place in the interim. 

15. Essentially for the same reasons, the public interest 

supports a stay. George Bayoud calls the Court's attention to its 

opinions in Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988), Rangel   

Vs. Mattox, No. 89-6226 (5th. Cir. Dec. 5, 1989), and Rangel wv.   

  

Mattox, No. 89-6226 (5th Cir. Jan. 3, 1990). Those opinions are 

the only other instances known to Secretary Bayoud in which the 

issue presented here has been addressed. In both instances, this 

Court found that a stay was proper. The same reasons apply with 

greater force here. The degree of disruption to one of ‘the 

coordinate branches of the sovereign state government is egregious. 

l6. Considering the massive impact on the State of Texas that 

would result if a stay were not entered, a lower than usual 

standard of likelihood of success on the merits is appropriate. 

Ruis v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) ("movant need   

only present a substantial case on the merits when a serious legal 

questions is involved and show that the balance of equities weighs 

heavily in favor of granting a stay"). Although George Bayoud 

certainly believes that the arguments in this motion and the 

incorporated trial court pleadings demonstrate a likelihood of 

success, it seems beyond question that, at minimum, they "present 

a substantial case on the merits," and thus a stay is justified.  



NEED FOR EMERGENCY RELIEF 
  

17. In order to preserve the regularity and continuity of 

judicial elections, George Bayoud respectfully requests immediate 

relief, and requests that hearing of this motion be had by 

telephone conference call at the earliest possible opportunity 

given the inconsistency between the terms of the January Order and 

the schedule for current judicial election procedures under state 

law. 

18. The deadline for filing for office under current Texas 

law was January 2, 1989. The District Court waited until that very 

day to enter its interim plan. This last minute order fails to 

"consider the proximity of a forthcoming election and the mechanics 

and complexities of state election laws," Reynolds v. Sims, supra, 
  

and will cause severe and unfair consequences unless immediately 

stayed. In particular, the January Order comes so close to the 

long-scheduled March 13 primaries that if it is not immediately 

stayed, the 1990 judicial elections will have been irremediably 

disrupted. 

19, Initially, unless this Court takes action to stay the 

January Order before January 12, it will be difficult for judicial 

positions to be included in the March 13 primaries. State law 

permits absentee voting to commence sixty days before the election. 

Tax. Elec. Code Ann. § 84.007. In order to have ballots prepared 

in time for the election and absentee voting, party chairmen are 

required to certify to the Secretary of State the list of properly 

filed and qualified candidates sixty days before the election. 

-9-  



  

This permits the Secretary of State to provide the names to the 

ballot printers in time for the election and absentee voting. This 

year, the date for certification of candidates is January 12, 1990. 

See 1 Tex. Adm, Code § 81.113 (proposed at 14 Tex. Reg. 5398, 

adopted at 14 Tex. Reg. 6075). Thus, if this Court is going to 

issue a stay in order to prevent unnecessary disruption of the 

existing judicial election system, it must act before January 12. 

20. Additionally, if judicial candidates acting in reliance 

upon the January Order withdraw their filing under the current 

system and refile under the terms of the January Order, they will 

be unable to refile if a stay is granted, because the deadline for 

filing under the existing system has passed. Every day that passes 

while the January Order is in effect increases the risk that 

candidates will become ineligible for this reason. 

2%. Finally, the realities of political campaigns require 

that candidates have some reasonable time to campaign for office. 

The March 13 primary is only some ten weeks away. If. judicial 

candidates are to be on the ballot for the March 13 primary, they 

need time to appeal to the voters, solicit support, seek 

endorsements, prepare and run advertisements, organize the 

precincts, and take all of the other steps that are entailed in the 

political process. 

22. As stated in the letter from Secretary of State Bayoud 

to the district court (Exhibit H-1 of Entz Application for Stay and 

Exhibit "A", which is attached hereto), the logistical problems 

created for the State of Texas in trying to implement the January 

-10- 

 



  

Order are significant in and of themselves. In its unseemly haste 

to enter some kind of interim order, the district court has plainly 

failed to acknowledge the magnitude of the disruption it proposes. 

As this Court state in Chisom: 

Our analysis begins with the staunch admonition that 
a federal court should jealously guard and sparingly use 
its awesome powers to ignore or brush aside long-standing 
state constitutional provisions, statutes, and practices. 
There can be no doubt that under the Supremacy Clause, 
federal courts do and indeed must have this authority in 
our unique form of government. It is the use of this 
power that must be maintained in the balance, a balance 
which is more delicate than usual when a state's judicial 
process is involved. 

Chisom, supra, 853 F.2d at 1189 (footnote omitted). Similarly,   

here, given the district court's failure to heed this Court's 

staunch admonition, this Court should stay the district court's 

intemperate order, as it did in Chisom and Rangel. 

WHEREFORE, George Bayoud requests that this Court vacate the 

District Court's Order enjoining the election of Texas' state 

district judges under the present system in the nine target 

counties at issue in this suit, that it stay the implementation of 

the Interim Plan adopted by the District Court, and that it stay 

all further proceedings in the District Court, including without 

limitation the promulgation or implementation of any other remedial 

plan, pending appeal of the District Court's Memorandum Opinion and 

Order of November 8, 1989 as amended. 

-11- 

 



  

Respectfully submitted, 

   

  

MA : de 

ohn L. HilY, ar. ~7 
State Bar No. 00000027 

Andy Taylor 

State Bar No. 19727600 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 
Houston, Texas 77002 

(713) 226-1200 
INDEPENDENT COUNSEL FOR 
DEFENDANT GEORGE S. BAYOUD, JR., 
SECRETARY OF STATE 

  

CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the foregoing 
instrument was served by certified mail, return receipt requested, 
to all attorneys of record, in accordance with the Federal Rules 
of Appellate Procedure this £ day of January, 1990. 

£ eck    | 
L 

i L.. Hiil, Jr. ar 
  

i:\users\carterg\jlh\bayoud04 

-12- 

 



EXECUTIVE DIVISION 
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STATUTORY FILINGS 
DIVISION 
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Uniform Commercial Code 
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Austin, Tease 78711-3193 
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Office of the 

SECRETARY OF STATE 

George S. Bayoud, Jr. 

SECRETARY OF STATE 

  

January 4, 19590 

The Honorable Jim Mattox 

Attorney General 
State of Texas 

Supreme Court Building 
Austin, Texas 78711 

RE: CIVIL ACTION #MO-88-CA-154 

LULAC COUNCIL $4434 ET AL V. Mattox ET AL. 
UNITED STATES DISTRICT COURT, WESTERN DISTRICT 

OF TEXAS, MIDLAND=-QDESSA DIVISION 

Dear General Mattox: 

Ags I told you in my letter to you of December 21, 
1989, I opposed the proposed agreed order which you 
were negotiating with the plaintiffs. Among the 
reasons were that it would be difficult to ad- 
minister; some citizens may effectively be dis- 
enfranchised in elections under the proposed plan; 
and my belief that judicial selection is a matter for 
the Texas Legislature to address. None=-the-less, you 
submitted the plan and the court in great part 
adopted the plan. Therefore, as a named defendant in 
the referenced cause, I am instructing you as my 
lagal counsel to immediately fila a Motion for a Stay 
of the entire Order dated January 2, 1990. This stay 
shoud be sought to be maintained until full appellate 
review on the merits, I further instruct you to make 
an interlocutory appeal on all available issuas from 
such Order. The problems mentioned in that December 21st 
letter continue to exist under Judge Bunton's Order. 

As Chief Elections Officer of the State, I am entrusted 
with the duty of advising and assisting election 
authorities with regard to the application, operation, 
and interpretation of the Election Code and election 
matters generally. There are numerous problems in 
implementing the nonpartisan judicial 

An Eoual Oosartunity Emolover  



The Honorable Jim 0... 
Page 2 

elections in nine counties in Texas as set out in the order. A 
brief list of only some of these problems is as follows: 

(1) Which authority is actually ordering the elections? 
It appears that Judge Bunton is ordering the elections as his 
order cites on page 7, Item 6: 

Section 41.001(b)(5) of the Texas Election 
Code which refers to "an election held under 
an order of a court or other tribunal...." 

(2) There are rumerous other quastions ravelving around 
the answer to Question (1) above, e.g., who gives notice of 
the elections; who authoriaes the voting systems to be used 
in the elections; who is the custodian of the election re- 
cords; and so forth. 

(3) Which election precincts are to be used for ths 
elections? 

(¢) Who appoints the election judges? 

(5) As the elections do not fall within the definition 
of a "primary election” in Section 1.005(14) of the Blection 
Code, is it to be assumed that there will be no filing fees 
paid by candidates, no petitions in lieu of filing fees, and 
no judicial petitions as required in certain counties? 

(6) How will the canvass be conducted? Under the 
Election Code, the Governor is to canvass the returns for a 
district office. Under Section 67.012 of the Election Code, 
this state canvass may not be held earlier than the 15th day 
after the election, i.e., May 20. Absentee voting for the 
runoff is to begin on May 14 under the provisions of the Elec- 
tion Code. ‘There is not enough time for the canvass and 
praparation of ballots for absentee voting to begin for the 
Juna 2 runoff. 

(7) Who will be the absentee voting clerks in Ector, 
Lubbock, and Midland Counties as the elections will net be 
countywide in those counties? 

(8) What will be the procedure to be used if a judge 
whose term is not on the ballot in 1990 resigns or dies? Will 
the unexpired term be on the ballot in May? 

(9) There cculd be a problem in preserving the election 
results from tha primary runoff in that absentee voting for 
the May 5 election will begin on April 16 while the runoff is 
April 10.  



  

The Honorable Jim NW. 
Page J 

(10) There is no provision in the Order for a filing of 

declaration of write-in candidacy; thus, there will be an 
unlimited number of write-in candidates in the elections and 
all write-in votes will have to be counted. 

(il) Which political subdivision will pay the costs of 
conducting the elections? Harris County will have ro other 
elections on May 5 and the County Clerk estimates the cost for 
the election will be some $1 million in Harris County alone. 

Thare are numerous other questions and problems with the implemen- 
tarion of Judge Bunton's Order which I will not list in the inter- 
est of brevity. 1 am concerned, however, that on Page 4 of the 
Order Judge Bunton says: 

... An Agreed Settlement was entered into by and between 
the Plaintiffs and Defendants in this matter, but was not 
approved by some of the Intervenors. 

I would refer you tc my letter of December 21, 1989, in which I 
objected to that propesed settlement and ‘*raquest(ed] that you 
refrain from entering inte such plan and that you refrain from 
entering into any other such settlement or plan without my prior 

written consent.” 

As you know, unless the court's order is staysd by mid-January 
1990, when candidetes have been certified and ballots are being 
prepared, the election cycle will have progressed beyond a point 
at which it may reasonably be altered. PFurthermore, it is impor- 
tant that the legislature have a reasonable period of time to 

address this issue in a special session. As a result, I need to 

know whether you will seek the stay in accordance with my inetruo- 

tion. I need your response in a timely manner to enable me to seek 
independent counsel, without cost to the state, in the event you 
will not abide by my instructions. New counsel would need adequate 
time to seek a stay before mid-January 1990. 

I look forward to hearing from you. 

Sincerely, 

  

   
GSB:TH/blltrs 

ect Judge Lucius D. Bunton, III, Judge, United States District 

Court, Western District, Midland-Odessa Division 

 



The Honorable Jim ®... x 4 

Page 4 

  

Clork, United States District Court, Western District, 
Midland-Odesgsa Division 

Ms. Mary P. Keller 
First Assistant Attorney General 

Mr. Renea Hicks 
Special Assistant Attorney General 

Mr. Javier Guajarde 
Assistant Attorney General 
P. 0. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

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

Mr. Rolando Rios 
Southwest Voter Registration & 

Education Project 
201 North St. Mary's, Suite 521 
San Antonio, Texas 78205 

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

Ms. Gabrielle KX. McDonald 
301 Congress Avenues, Suite 2050 
Austin, Texas 78701 

Kr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Blm Street 
Dallas, Texas 73226-1637 

Mr. J. REugene Clements 
Porter & Clemants 
700 Louisiana, Suite 3500 
Houston, Texas 77003-2730 

Mx. Robert H. Mow, JT. 

Hughes & Luce 
2600 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

 



The Honorable Jim Mattox 

Page 5 

  

The Honorable William FP. Clements, Jr. 
Governor, State of Texas 

The Honorable William P. Hobby 
Lieutenant Governor, Stata of Texas 

The Honorable Gibson D. Lewis 
Speaker of the Texas House of Representatives 

The Honorable Thomas R. Phillips 

Chief Justice, Supreme Court of Toxas 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Ve NO. 
  

JIM MATTOX, et al., 

wn
 

wn
 

un
 

wn
 

Wo
n 

wu
n 

wn
 

wn
 

wn
 

un
 

Defendants-Appellants. 

DEFENDANT’S NOTICE OF DESIGNATION OF INDEPENDENT COUNSEL 
  

TO THE HONORABLE COURT OF APPEALS: 

NOW COMES George S. Bayoud, Jr., ("Bayoud"), Secretary of 

State and Defendant herein, and files this Notice of Designation 

of Independent Counsel in the above-styled and numbered cause, and 

would respectfully show the Court as follows: 

I. 

Defendant Bayoud has heretofore informed his attorney of 

record, the Honorable Jim Mattox, Attorney General of the State of 

Texas, that he does not support the Mattox/LULAC Interim Plan or 

the interim plan adopted by the Court, does not agree that the 

correct legal principles applicable to this case have been applied 

by the Court. Further, Defendant Bayoud has requested Jim Mattox 

to immediately file an Emergency Application for Stay and an 

Interlocutory Appeal of this Court’s January 2, 1990 Order in Cause 

No. MO-88-CA-154 (W.D.Tex.) because time is of the essence and the 

Court’s order would create chaos in the administration of the Texas 

election laws which administration is the legal responsibility of 

Defendant Bayoud as Secretary of State. 

 



  

11. 

Attorney General Mattox refuses to represent Secretary of 

State Bayoud’s legitimate interest, views and desires in a truly 

adversary manner, is not affording Secretary of State Bayoud the 

same diligent and faithful representation to which a client is 

entitled, is failing to adequately represent his client’s interests 

herein, has made agreements without his client’s knowledge or 

consent, has failed to inform Bayoud of important developments, has 

engaged in private negotiations with the Plaintiffs resulting in 

compromises and agreements unacceptable to Bayoud, and there thus 

exists a conflict of interest between Bayoud, the client, and 

Mattox, the lawyer. In sum, Mattox has breached his client’s trust 

and instructions and is substituting his personal views for those 

of his client to placate Plaintiff’s wishes and advance his own 

political agenda. 

I11. 

Defendant Bayoud has previously informed the Attorney General 

in writing of his intent to engage John L. Hill, Jr. of Liddell, 

Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce Tower, Houston, 

Texas 77002, as his independent counsel, at no cost to the State, 

so as to protect Defendant Bayoud’s right to legal representation 

that will maintain a truly adversarial relationship between the 

parties and guarantee that Secretary Bayoud’s legal positions are 

fairly and energetically and independently carried forward. (See 

Exhibit A attached hereto.) 

 



  

Iv. 

Defendant Bayoud hereby notifies this Honorable Court of the 

designation of John L. Hill, Jr. as his independent counsel in this 

cause to carry forward his legal positions as above described. 

Respectfully submitted, 

cn Hr 
Im EL, alu ke. 7 

ate Bar No. 00000027 
—"Andy Taylor 

State Bar No. 19727600 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, Texas 77002 
(713) 226-1200 

INDEPENDENT COUNSEL FOR 

DEFENDANT GEORGE S. BAYOUD, JR., 

SECRETARY OF STATE 

   
rd 

id 

  

  

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing 
instrument was served by certified mail, return receipt requested, 
to all attorneys of record, in accordance with the Federal Rules 
of Civil Procedure this day of January, 1990. 

/ John L. Hill, Jl 

  

  

  

CARTERG\JLH\BAYOUDO1 

 



  

RCv 3V:_ DCE QF P 1= 4-80 : 2:24PM : 
$123204111:8 2 @® 

  
  

  

  

  

EXECUTIVE DIVISION 
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£13 463-5704 

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512 463-3609 
Lustin, Texas 78711-2887 

SUPPORT SERVICES 
DIVIRION 
* “manga! MARITAL 
P.O. Bos | 

yig 463-3600 

Austin. Texas 78711.2887 

Staff Services 
PO. Box 12887 
$12 443.5600 

Ausin, Texas 73711-2887 

STATUTORY FILINGS 
DIVISION 
Corporations 
2.0. Box 13697 
$12 463-5558 
Ausi'n, Texas 78711-3697 

Siscutory Documents 
F 0. Box 12887 
512 463.3654 
Austin, Texas TR711.25887 

Texus Register 
PO. Box !3824 
3 2 463-556) 
Austin, Texas 78711.3824 

Uniform Commercial Code 
70. Box 3193 
$13 475-2708 

Austin, Texas T8711.3197 

  

Office of the 

SECRETARY OF STATE 

George S. Bayoud, Jr. 
SECRETARY OF STATE 

  

January 4, 1990 

The Honorable Jim Mattox 
Attorney General 
Stata of Texas 
Supreme Court Building 
Austin, Texas 78711 

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF 
TEXAS, MIDLAND-QODESSA DIVISION 

Dear General Mattox: 

In a telephone conversation with Renea Hicks of your 
office this morning, I asked that he consult with you and 
let me know if you were filing a Motion for Stay of the 
referenced Order by Judge Lucius D. Bunton, III. I had 
previously notified you, by letter of December 21, 1989 
Of my opposition to your proposed agreed plan. TI also had 
delivered to your office at noon teday, a letter contain- 
ing my instruction to you as my Legal Counsel to immedi- 
ately file a stay and an interlocutory appeal on all 
available issues from such order. It is now obvious from 
your remarks at your 1:30 p.m. press conference today that 
you have no intention of filing a Motion for Stay or 
Interlocutory Appeal in accordance with my instructions. 

Please be advised that because of your refusal to rapre- 
sent me in accordance with my instructions given to you as 
your client in this matter, I am engaging outside counsel 
at no cost to the State of Texas. Former Secretary of 
State, Attorney General, and Chief Justice of the Texas 
Supreme Court, Judge John Hill has agreed to represent me 
as Secretary of State in this matter. Judge Hill will be 
in contact with your office and will be filing the ap- 
propriate documents with the Court to substitute as my 
counsal. 

EXHIBIT A 

GEB:iTH/bl/1l¢rs 

An Equal Opportuaity Empioyer 

 



  

IN THE UNITED STATES DISTRICT COURT 

WESTERN DIVISION OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs, 

v. 
NO. MO. 88-CA-154 

JIM MATTOX, et al., 

wn
 

wn
 

un
 

wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Defendants. 

NOTICE OF APPEAL 

Notice is hereby given that Defendant George S. Bayoud, Jr., 

Secretary of State and Defendant herein appeals to the United 

States Court of Appeals for the Fifth Circuit from the Court’s 

Order of January 2, 1990. 

Respectfully submitted, 

ot Ate of Son te 
hnit. Hill. Jr, 7 7 

tate Bar No. 00000027 

Andy Taylor 
State Bar No. 19727600 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, Texas 77002 
(713) 226-1200 

INDEPENDENT COUNSEL FOR 
DEFENDANT GEORGE S. BAYOUD, JR., 
SECRETARY OF STATE 

  

CARTERG\BAYOUDO3 

 



CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the foregoing 
instrument was served by certified mail, return receipt requested, 
to all attorneys of record, in accordance with the Federal Rules 
of Civil Procedure this 4 day of January, 1990. 

ZL Lu 4 
John L. Hill,   

CARTERG\JLH\BAYOUDO3 

 



    

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 

Vv. NO. MO-88-CA-154 

JIM MATTOX, et al., 

wn
 

un
 

wn
 

wn
 

Wn
 

wn
 

un
 

wn
 

wn
 

Wn
 

Defendants. 

DEFENDANT'S NOTICE OF DESIGNATION OF INDEPENDENT COUNSEL   

TO THE HONORABLE JUDGE LUCIUS D. BUNTON: 

NOW COMES George S. Bayoud, Jr., ("Bayoud"), Secretary of 

State and Defendant herein, and files this Notice of Designation 

of Independent Counsel in the above-styled and numbered cause, and 

would respectfully show the Court as follows: 

I. 

Defendant Bayoud has heretofore informed his attorney of 

record, the Honorable Jim Mattox, Attorney General of the State of 

Texas, that he does not support the Mattox/LULAC Interim Plan or 

the interim plan adopted by the Court, does not agree that the 

correct legal principles applicable to this case have been applied 

by the Court. Further, Defendant Bayoud has requested Jim Mattox 

to immediately file an Emergency Application for Stay and an 

Interlocutory Appeal of this Court’s January 2, 1990 Order in Cause 

No. MO-88-CA-154 (W.D.Tex.) because time is of the essence and the 

Court’s order would create chaos in the administration of the Texas 

 



election laws which administration is the legal responsibility of 

Defendant Bayoud as Secretary of State. 

II. 

Attorney General Mattox refuses to represent Secretary of 

State Bayoud’s legitimate interest, views and desires in a truly 

adversary manner, is not affording Secretary of State Bayoud the 

same diligent and faithful representation to which a client is 

entitled, is failing to adequately represent his client’s interests 

herein, has made agreements without his client’s Knowledge or 

consent, has failed to inform Bayoud of important developments, has 

engaged in private negotiations with the Plaintiffs resulting in 

compromises and agreements unacceptable to Bayoud, and there thus 

exists a conflict of interest between Bayoud, the client, and 

Mattox, the lawyer. In sum, Mattox has breached his client’s trust 

and instructions and is substituting his personal views for those 

of his client to placate Plaintiff’s wishes and advance his own 

political agenda. 

Ill. 

Defendant Bayoud has previously informed the Attorney General 

in writing of his intent to engage John L. Hill, Jr. of Liddell, 

Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce Tower, Houston, 

Texas 77002, as his independent counsel, at no cost to the State, 

SO as to protect Defendant Bayoud’s right to legal representation 

that will maintain a truly adversarial relationship between the 

parties and guarantee that Secretary Bayoud’s legal positions are 

fairly and energetically and independently carried forward. (See 

Exhibit A attached hereto.)  



  

Iv. 

Defendant Bayoud hereby notifies this Honorable Court of the 

designation of John L. Hill, Jr. as his independent counsel in this 

cause to carry forward his legal positions as above described. 

Respectfully submitted, 

By: ZL hee f 
ohn L. Hill, Jr, z 

State Bar No. 00000027 

Andy Taylor 
State Bar No. 19727600 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, Texas 77002 

(713) 226-1200 

INDEPENDENT COUNSEL FOR 

DEFENDANT GEORGE S. BAYOUD, JR., 
SECRETARY OF STATE 

  

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing 
instrument was served by certified mail, return receipt requested, 
to all attorneys of record, in accordance with the Federal Rules 
of Civil Procedure this __$ day of January, 1990. 

ZL Yee 
John L. Hill, Jr.” "7 
  

CARTERG\JLH\BAYOUDO1 

 



RC 3¥ ..00ELL, ue + T= 4=30 © 2:24PM 9... $123204111:8 2 

    
  

  

  

  

  

EXECUTIVE DIVISION 
O Baa (2697 P 

513 443-5701 
Austin, Teas 7671-2607 

LLECTIONS DIVISION 
P.O. Box | 2060 
‘12 46)-3630 

Aum. Texas 7871!.2080 

Drsciosuse Filings Section 
P.C. Box 1207 
fle 463-5704 

Austin, Texas 78711-2070 

OATA SERVICES 
oivm ON 
BNO Bem 12887 
512 63-5609 
justin, Texas 78711-2883” 

SUPPORT SERVICES 
DIVIRRON 
“asaal t 
PO. Bos! 

y13 443-3600 

Ausun. Texas 78711.2887 

Staff Services 
P O. Box 12887 
$12 443.5600 

Ausun, Texas 71711-2887 

STATUTORY MLINGS 
DIVISION 
Corporation 
2.0. Box |389 
517 463-5558 
Ausi'n, Texas 78711-3697 

Suscutory Documents 
£0. Box 12087 
312 483.5634 
Austin, Texas T8711.2887 

Tess Register 
PO. Box !3824 
5 2 463-956) 
Austin. Texas 78711-3824 

Usfomn Commerdia) Code 
70 Bex (93 
$13 475-2708 

Austn. Texas 73711.3193 

  

Office of the 

SECRETARY OF STATE 

George S. Bayoud, Jr. 
SECRETARY OF STATE 

  

January 4, 1990 

The Honorable Jin Mattox 
Attornay General 
Stata of Texas 
Suprema Court Building 
Austin, Texas 78711 

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF 
TEXAS, MIDLAND-QDESSA DIVISION 

Dear General Mattox: 

In a telephone conversation with Renea Hicks of your 
office this morning, I asked that he consult with you and let me know if you were filing a Motion for Stay of the referenced Order by Judge Lucius D. Bunton, III. I had 
previously notified you, by letter of December 21, 1989 
Of my opposition to your proposed agreed plan. I also had 
delivered to your office at noon today, a letter contain- 
ing my instruction to you as my Legal Counsel to immed.:- ately file a stay and an interlocutory appeal on all available issues from such order. It is now obvious from your rsaarks at your 1:30 p.n. press conference today that 
you have no intention of filing a Motion for Stay or 
Interlocutory Appeal in accordance with ny instructions. 

Please be advised that because of your refusal to zepre- 
sent me in accordance with my instructions given to you as 
your client in this matter, I am engaging outside counsel 
at no cost to the State of Texas. Former Secretary of 
State, Attorney General, and Chief Justice of the Texas 
Supreme Court, Judge John Hill has agreed to represent me 
as Secretary of State in this matter. Judge Rill will be 
in contact with your office and will be filing the ap- 
propriate documents with the Court to substitute as ny 
counsel. 

Ey EXHIBIT A 

GEB:TH/bl/1ltrs 

An Lqual Opportuaity Employer