State's Reply to Chief Justice Thomas R. Phillips' Response to Motion to Disqualify

    Office of the Attorney General 

State of Texas 
DAN MORALES | . 

ATTORNEY GENERAL April 30, 1993 

Clerk, Fifth Circuit : 
ATT'N: Eileen Boudoin 

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 matter are the original and twenty copies of the 
State's Reply to Chief Justice Phillips’ Response to Motion to Disqualify Counsel. 

Sincerely, 

Coa Kredi 
Renea Hicks 
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 
PRINTED ON RECYCLED PAPER AN EQUAL EMPLOYMENT OPPORTUNITY EMPLOYER 

 



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

ATTORNEY GENERAL 
OF TEXAS, et al., 

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Defendants-Appellants. 

STATE'S REPLY TO CHIEF JUSTICE THOMAS R, PHILLIPS' RESPONSE TO 
MOTION TO DISQUALIFY 

The Attorney General of Texas, on behalf of the State of Texas, replies to the response by 

Chief Justice Phillips, as Chair of the Texas Judicial Districts Board, opposing the state's Motion 

to Disqualify his independent counsel: 

L An erroneous, unspoken implication underlies the Chief Justice's response in 

opposition to the motion to disqualify. The implication is that those joining in the settlement 

agreement seek to have it effectuated without further hearing. That implication is inaccurate. As 

indicated previously to this Court, the parties to the yet-to-be effectuated settlement agreement 

intend to seek a hearing on the settlement before the district court as was done in the similar case 

from Louisiana, see Chisom v. Roemer, 970 F.2d 1408 (5th Cir. 1992). 

This recommended approach to consideration of the settlement agreement, once the time 

comes to implement it, 1s precisely what is contemplated in the several decisions that the Chief 

Justice discusses in his response in connection with there being a need to insure the fairness and 

reasonableness of a proposed settlement possibly affecting third parties. The settlement issues 

addressed on appeal in United States v. City of Miami, 664 F.2d 435 (5th Cir. 1981), arose from a 

settlement hearing and ensuing order by the district court. The very point of the ruling in 

Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984), is that a district court should hold some 

kind of hearing in connection with consideration of a proposed settlement in a voting rights suit. 

Finally, the state court ruling in Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991), turned on the 

 



  

need for a trial court hearing on a proposed settlement. The anticipated approach to this case 

follows the path laid down by the cited authorities, and it is important for the Court to keep that 

in mind when evaluating the Chief Justice's response. | 

2 The Chief Justice's effort to carve out a narrow exception to the broad powers he 

recognizes the Attorney General holds in representing the state and its agencies does not reach 

the circumstances in this case. The Chief Justice argues that, notwithstanding the Attorney 

General's authority to represent the state, he (the Chief Justice) is entitled to independent counsel 

here because the Attorney General has taken steps to exercise his ordinarily-recognized authority 

in a way that impinges on the Chief Justice's interest in "complying with [his] constitutional 

duties." Response at 5, | 6. : 

Putting aside the problem that this kind of exception would swallow the rule of Attorney 

General authority, given the lengthy, detailed nature of the Texas Constitution, the exception is 

not one that would apply in this case. The Chief Justice would not be compelled to act 

inconsistently with his constitutional mandate were the settlement to become effective. The 

Supremacy Clause of the United States Constitution gives federal mandates supremacy over 

contrary state mandates Gssuming arguendo that there is some state mandate applicable here). 

Both the Attorney General and the Chief Justice are sworn to uphold the constitution and laws of 

the United States, as well as this state. TEX. CONST. art. 16, § 1(a). This obligation includes 

abiding by the dictates of the federal Supremacy Clause. a 

More critically, the Chief Justice's argument rests on the erroneous assumption that he is 

a real party in interest in this proceeding. As explained in the state's motion to disqualify, the 

oft-repeated legal rule is that in these kinds of cases the state, not one or several of its officials, is 

the real party in interest. In such a situation, the Attorney General is charged with the authority 

to present a unified position for the state, even if (as often happens in cases such as this) people 

in positions of varying degrees of authority hold wildly divergent views tenigeives, 

This latter reason is why the cited case of PUC v. Cofer, 754 S.W.2d 121 (Tex. 1988), is 

inapposite in this setting. In Cofer, the Attorney General was directed by two different statutes 

 



  

to represent two different state agencies in an administrative appeal. That is, state law explicitly 

recognized two different parties in interest, both of which were to be represented by the Attorney 

General. Here, though, federal law just as explicitly recognizes only one party in interest insofar 

as state-level officials are concerned. Neither state nor federal law recognizes the Chief Justice 

as a real party in interest in this case in his official capacity as Chair of the Judicial Districts 

Board. Therefore, nothing in Cofer confers authority on him to designate his own independent 

counsel. 

CONCLUSION 

For the reasons stated here and in the motion to disqualify, the Chief Justice's designation 

of independent counsel should not be recognized and, therefore, his disqualification should be 

- declared. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

RENEA HICKS 3 
State Solicitor 

  

JAVIER GUAJARDO 
Special Assistant Attorney General 

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

ATTORNEYS FOR 
STATE OF TEXAS AND ATTORNEY 
GENERAL 

CERTIFICATE OF SERVICE 

 



  

I certify that on the 30th 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. Thornton 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 1200, 100 West Houston, San Antonio, Texas 78205-1457; Russell W. 
Miller, 3300 Texas Commerce Tower, Houston, Texas 77002; and Joseph D. Jamail, Jamail & 
Kolius, 500 Dallas, Suite 3434, Houston, Texas 77002-4793. 

(Sonia Pech, 
Renea Hicks 
  

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Office of the Attorney General * 
State of Texas 

P.O. BOX 12548 

AUSTIN, TEXAS 78711-2548 

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Sherilyn A. Ifill + RW 
NAACP Legal Defense & Educ. Fund 
99 Hudson St., 16th FI. 
New York, NY 10013 .- 

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