Plaintiffs' Response to the Thirteen Travis County Defendant-Intervenors' Motion to Modify Order Allowing Intervention; Order

    LAW OFFICES OF 

TEXAS RURAL LEGAL AID. INC. 
201 NORTH ST. MARY'S ST.. SUITE 600 

SAN ANTONIO. TEXAS 78205 

(512) 222-2478 

April 20, 1989 

John D. Neil 
Deputy Clerk 
200 East Wall Street 
Midland, Texas 79702 

Re: LULAC et al v Mattox et al 

Civil Action No. MC-§8-CA-154 

Dear Mr. Neil: 

I am enclosing an original and two copies of Plaintiffs’ Response 
to the Thirteen Travis County Defendant-Intervenors’ Motion to 
Modify Order Allowing Intervention and proposed Order. Could you 
please file them at your convenience? 

Also, I am enclosing a stamped, self-addressed envelope. Could you 
please mark one of the copies with your filemark and return it to 
me? 

In advance, thank you for your help. 

Sincerely yours, 

  

     
Susan Finkelstein 
Staff Attorney 

federal express delivery 

xc: Bill Garrett : 
Rolando Rios 4 
Edward Cloutman RRR: P 174 358 178 
E. Brice Cunningham RRR: P 174 358 179 

«Sherrilyn Ifill RRR: P 174 358 180 
Gabrielle McDonald RRR: P 174 358 181 
Renea Hicks RRR: P 174 358 182 
J. Eugene Clements RRR: P 174 358 183 
Darrell Smith RRR: P 662 817 049 
Michael Wood RRR: P 662 817 050 
Mark Dettman RRR: P 662 817 051 
Ken Oden RRR: P 174 358 102 
David Richards RRR: P 174 358 103 
Robert Mow RRR: P 174 358 104 

“EA SE 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

VS. NO. MO-88-CA-154 

MATTOX 7 et al LR J 

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Defendants. 

PLAINTIFFS’ RESPONSE TO THE THIRTEEN TRAVIS 
COUNTY DEFENDANT-INTERVENORS’ MOTION TO 

MODIFY ORDER ALLOWING INTERVENTION 

TO THE HONORABLE COURT: 

The thirteen Defendant-Intervenors from Travis County 

(hereinafter Travis County District Judges) have asked this Court 

to modify its Order concerning intervention to allow them to 

intervene in their individual capacities. They request that the 

Court permit them to intervene in their individual capacities for 

the reasons stated in their original Motion to Intervene and to 

save them 1) the possible expense of attorney’s fees in the event 

that Plaintiffs prevail and 2) the potential expense of experts’ 

fees.! Alternatively, they request that the Court allow them to 

participate merely in the role of amicus curiae. 

  

On page three of their Motion, the Travis County District Judges claim that Plaintiffs’ have the "point of view that the only relevant evidence comes from expert witnesses." Plaintiffs do not hold this view. 

 



  

OFFICIAL CAPACITY 

Plaintiffs respectfully request that the Court deny the Travis 

County District Judges Motion. As an initial matter, the Motion 

essentially asks the Court to grant what it has already denied. 

In their original Motion to Intervene, the Travis County District 

Judges requested status as Defendants in their official capacities. 

The Court wisely denied that request when it allowed them to 

intervene in their individual capacities only.? 

As is also true of counties, district court judges in their 

official capacities do not have standing to sustain their 

participation in this lawsuit. Officially, the position as judge 

has neither created the problem that Plaintiffs challenge nor can 

the position of judge remedy the problem. The system of electing 

district court judges is within the control of the Defendants 

originally sued by the Plaintiffs. The original Defendants are 

charged with drawing the election lines that Plaintiffs ask this 

Court to change. Tex. const. art. V, Section 7a; Tex. Gov. Code 

Section 24.941 et seq. District court judges, in their official 

capacities, simply have no role or interest in this process. 

If the Defendant-Intervenors have any interest at stake in 

this litigation, it is their interest in their tendre as judges, 

or, in other words, in their jobs. In Williams v State Board of 
  

  

Elections, 696 F. Supp. 1563 , 1571 (N. D. Ill. 1988), the Court 

  

Plaintiffs do not agree that intervention was proper in any capacity. Nonetheless, if proper at all, it is certainly only as individuals. 

 



  

found that sitting district court judges were necessary parties 

because "[i]f plaintiffs prevail, ... [it could] ... drastically 

reduce the tenure of most sitting judges." The Court continued to 

state that "the Supreme Court has defined a person’s interest in 

continued public employment ..." in Board of Regents v Roth, 408 
  

U.S. 564 (1972) (emphasis added). To paraphrase, the district 

judges have a personal, or individual, interest in maintaining the 

status quo so that they can keep their jobs. This interest is 

entirely personal to the thirteen people who now sit as district 

court judges in Travis County. It is not in any way related to the 

office of district court. 

AMICI CURIAE 

Alternatively, the Travis County District Judges request that 

the Court allow them to participate merely as amici curiae. They 

claim that status as amici will protect them from personal 

liability. Morales v Turman, 820 F.2d 728 (5th Cir. 1987).°   

Further, they claim that Morales allows them to present expert 

testimony and participate as if they were full parties even if they 

participate only as amici. These contentions are not correct. 

First, Morales does not protect amici from liability for fees. 

In Morales, the Court allowed various organizations to participate 

as amici "as fully and to the same extent as though they were 

  

The Travis County District Judges also claim that Morales 
shows that it is proper for amici to be fully involved in 
litigation, even to the point of presenting expert witnesses. 
Although amici in Morales did, in fact, assume this role, perhaps it was because no one objected. Morales, 820 F.2d at 730. 

 



  

actual parties in interest." Morales, 820 F.2d at 730. The amici- 

organizations were aligned with plaintiffs. When plaintiffs 

prevailed, the amici sought attorneys’ fees. The Fifth Circuit 

found that they were not entitled to fees under common law or 42 

U.S.C. Section 1988. Section 1988 did not authorize fees for amici 

because it only grants fees to "the prevailing party." Id. at 732 

(original emphasis). Since amici are not parties, Section 1988 

does not entitle them to fees. 

Morales does not, however, apply here‘. Morales derives its 

reasoning from a strict analysis of the text of Section 1988. A 

similar analysis here leads to different results. Although Section 

1988 speaks in terms of a grant of fees to a "prevailing party," 

it does not include a similar limitation upon who may be required 

to pay fees in a civil rights case where plaintiffs prevail. It 

simply says that the prevailing party may recover "a reasonable 

attorney’s fee as part of the costs." Since the statute’s own 

terms do not prohibit recovery of fees from amici who are aligned 

as defendants, the Travis County District Judges cannot take 

comfort in the holding of Morales. 

Further, it would be improper for the Travis County District 

Judges to assume the role of amici here. As they frankly admit, 

they ask the Court to grant them this status merely to let them off 

the hook - to protect them from personal liability for the costs 

  

‘Morales discusses Section 1988. Here, if Plaintiffs prevail they will seek fees pursuant to Section 1988 and the fee shifting 
provisions of the Voting Rights Act. Generally, however, the various fee shifting rules are treated similarly. 

KA 

 



  

of this litigation. This suggests that they are not able to fully 

litigate this matter, as they are required to do if they wish to 

participate. Further, if allowing the Travis County District 

Judges amici status would also allow them immunity from attorneys’ 

fees, it would contravene the important public policy of 

encouraging "private attorney generals," Association v Garland 
  

Independent School District, u.s. + 57 L.W. 4383, 4386   

(1989), to "[vindicate] a policy that Congress considered cof the 

highest priority." Newman v Piggie Park Enterprises, Inc., 390   

U.S. 400, 401-2 (1968). If Plaintiffs prevail in this case, the 

Travis County District Judges should not be allowed to shirk their 

responsibility for fees by the slight of the hand of changing their 

status before this Court. 

Finally, the role of amici is not appropriate here. The 

Travis County District Judges claim at page 6 of their Motion to 

Intervene and Memorandum of Law in Support of Motion that they "are 

better positioned to assist this Court in making fact findings 

specific to Travis County." See also, Supplemental Memorandum in 

Support of Motion to Intervene at 4. Further, the Travis County 

District Judges claim an interest - a bias - that they wish to 

present to this Court as Intervenors. See Motion to’ Intervene and 

Memorandum of Law in Support of Motion at 5-7. They do not propose 

to strip themselves of this bias if the Court allows them to 

proceed as amici. This bias prevents them from assuming the 

proper, disinterested role that is part and parcel of being friends 

of the court. Essentially, they ask for permission to be "highly 

5 

 



  

partisan ... on the facts ... and to amplify their case by cross- 

examining witnesses with vigorous leading questions. This is as 

far from amicus as one can get." U.S. v Certain Land Located in 
  

City of Barnstable, 674 F.2d 90, 91 n. 1 (lst Cir. 1982). This 

Court should not permit the Travis County District Judges to 

"pose," Id. as amici when they clearly do not intend to limit 

themselves to that role. 

THEREFORE, Plaintiffs respectfully request that the Court 

deny the Motion to Modify Order Allowing Intervention of the Travis 

County District Judges. 

Respectfully submitted: 

GARRETT, THOMPSON & CHANG 
ATTORNEYS AT LAW 
A Partnership of Professional 
Corporations 

William L. Garrett 
Brenda Hull Thompson 
8300 Douglas #800 
Dallas, Texas 75225 
(214)369-1952 
LEAD COUNSEL 

ROLANDO L. RIOS 
ATTORNEY AT LAW : 
201 N. St. Mary's #521 
San Antonio, Texas 78205 
(512)222-2102 

 



  

SUSAN FINKELSTEIN 
STAFF ATTORNEY 
TEXAS RURAL LEGAL AID, INC. 
201 N. St. Mary’s #600 
San Antonio, Texas 78205 
(512)222-2478 

   BY: 7 Cette ls. wn 

ATTORNEY FOR PLAINTIFFS 
  

CERTIFICATE OF SERVICE 
  

I, Susan Finkelstein, do hereby certify that a true and 

correct copy of Plaintiffs’ Response to the Thirteen Travis County 

Defendant-Intervenors’ Motion to Modify Order Allowing Intervention 

has been mailed via certified mail with correct postage to: 

ATTORNEY REPRESENTING 
  

Plaintiff - Intervenors 
  

Edward B. Cloutman, III Jesse Oliver 
MULLINAX, WELLS, BAAB & Joan Winn White 

CLOUTMAN, P. C. Fred Tinsley 
3301 Elm 
Dallas, TX 75226-9222 
214/939-9222 FAX: 214/939-9229 

E. Brice Cunningham Jesse Oliver 
Attorney at Law Joan Winn White 
777 S. R. L. Thornton Fwy, Suite 121 Fred Tinsley 
Dallas, TX 75203 
214/428-3793 

Julius Levonne Chambers Houston Lawyers Assn. Sherrilyn A. Ifill Francis Williams 
NAACP Legal Defense & Educational Rev. William Lawson 

Fund, Inc. 
99 Hudson St., 16th floor 
New York, NY 10013 
212/219-1900 

 



  

Gabrielle K. McDonald 
MATTHEWS & BRANSCOMB 

301 Congress Ave., Suite 2050 
Austin, TX 78701 
512/320-5055 

Defendants 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
P. O. Box 12548 
Austin, TX 78711 
512/463-2085 

Defendant-Intervenors 

J. Eugene Clements 
E. O'Neill 
Evelyn V. Keys 
PORTER & CLEMENTS 
700 Louisiana, Suite 3500 
Houston, TX 77002-2730 
713/226-0600 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10, 
Suite 905 
San Antonio, TX 78230 
512/641-9944 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 
713/228-5105 

Mark H. Dettman 
County Attorney 
P. O. Box 2559 
Midland, TX 79702 
915/688-1084 

Ken Oden 
Travis County Attorney 
P. O. Box 1748 
Austin, TX 78767 
512/473-9415 

Houston Lawyers Assn. 
Francis Williams 
Rev. William Lawson 
Texas Legislative 

Black Caucus 

All Defendants 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

’ 

Midland County & 
District Judges 

Travis County District 
Judges 

 



  

David R. Richards 
Special Counsel 
600 W. 7th St. 
Austin, TX 78701 

Robert H. Mow, Jr. 
HUGHES & LUCE 
2800 Momentum Place 
1717 Main St. 

Dallas, TX 75201 
214/939-5500 

Travis County District 
Judges 

Judge Harold Entz 
of Dallas County 

each at the correct address on this 21st day of April, 1989. 

LL ns Les lars 
  

A BEIORY FOR PLAINTIFF 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

vs. NO. MO-88-CA-154 

MATTOX, et al., 

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Defendants. 

ORDER CONCERNING MOTION TO MODIFY 
INTERVENTION STATUS OF THE 

THIRTEEN TRAVIS COUNTY DEFENDANT-INTERVENORS 

Upon consideration of all matters of record, the Court has 

determined that the Motion to Modify Order Allowing Intervention 

made by the thirteen Defendant-Intervenors from Travis County does 

not have merit. THEREFORE, it is DENIED. The Defendant- 

Intervenors do not have standing to participate in this lawsuit in 

their official capacities. 

Further, the thirteen Defendant-Intervenors’ Motion to 

Participate as Amici is also DENIED. 

  

Done this day of + 1989 at Midland, Texas. 

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UNITED STATES DISTRICT JUDGE