Motion for Relief in Pendente Lite; Proposed Order Granting HLA Motion

    Hon. Gilbert Ganucheau, Clerk 
United States Court of Appeals 

for the Fifth Circuit 
600 Camp Street 

New Orleans, LA 70130 

Re: 

Dear Mr. Ganucheau: 

$ National Office » 

“ Suite 1600 

NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: 

October 30, 1991 

LULAC V. Morales, 
  

No. 950-8014 

(212) 226-7592 

Enclosed for filing in the above referenced case are the 
original and three copies of Plaintiff-intervenor-appellees Motion 
for Relief Pendente Lite. Please circulate copies to the members 
of the panel. 

4 

  

YR. 272 
M 

{4 AAA 

[4 
Ifill 

/  Counse? for HLA, et al. 

db Counsel of Record 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 
deductible for U.S. of the National Association for the Advancement of Colored People 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its 

commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget. 

Regional Offices 

Suite 301 

1275 K Street, NW 

Washington, DC 20005 

(202) 682-1300 

Fax: (202) 682-1312 

Suite 208 

315 West Ninth Street 

Los Angeles, CA 90015 

(213) 624-2405 
Fax: (213) 624-0075 

 



IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al., 

Plaintiffs-Appellees, 

HOUSTON LAWYERS ASSOCIATION, 

et al., 

Plaintiff-Intervenor- 

Appellees, 
Vv. 

DAN MORALES, et al., 

State Defendants- 

Appellants, 

JUDGE SHAROLYN WOOD AND 

JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

MOTION FOR RELIEF 

IN PENDENTE LITE 

  

Plaintiff-intervenor appellees in the above captioned case respectfully move this Court to 

order interim relief for the forthcoming district judge elections in Harris County, and as grounds 

therefore state as follows: 

1. This case was filed by African American and Mexican American voters in 1988. The 

district court for the Western District of Texas decided this case in favor of plaintiffs on November 

8, 1989. That decision held that the at-large method of electing district judges as currently 

constituted in nine counties in Texas, violates the Voting Rights Act of 1965, as amended, by 

diluting the vote of African American and Mexican American voters. 

 



2. On May 11, 1991 a panel of the Fifth Circuit reversed the district court’s decision. The 

Fifth Circuit sitting en banc, held that judicial elections are not covered by §2 of the Voting Rights 

Act. That decision was reversed by the Supreme Court on June 21, 1991, and remanded to the 

Fifth Circuit panel "for further proceedings consistent with [its] opinion." cite This case is 

scheduled for oral argument before the Fifth Circuit on November 4, 1991. 

3. Since the initial filing of this case, two general elections for district judge candidates 

have been held under the challenged countywide, numbered post election scheme. District judge 

elections are held in even numbered years. Thus, the next general election for district judges is 

scheduled for November 1992, with a primary to held on March 10, 1992. The filing period for the 

1992 election commences on December 3, 1991 and ends on January 2, 1992. See Tex. Elec. Code 

§172.023 (a)(b). 

4. If plaintiffs prevail on appeal, the case must be remanded to the district court for the 

adoption of an appropriate remedy. 

5. It is highly unlikely that a decision from the Fifth Circuit, a remand to the district court, 

and the adoption of a remedial plan could be completed in time for the January 2nd closing date 

of the candidate filing period. 

6. Candidates, minority candidates in particular, who might wish to run under a revised 

election scheme will thus be foreclosed from filing for the upcoming election. Minority voters who 

would support those candidates will, for the third election in a row, be prevented from electing their 

candidate of choice to a district judge seat. 

7. Even if the plaintiffs do not prevail before the Fifth Circuit, and the case is remanded 

to the district court to explore additional liability issues, candidates will be unable to make an 

informed decision about whether to run prior to the close of the filing period, since the case will 

remain unresolved. Some minority candidates may choose not to run because of the virtual futility  



  

of running for district judge under the current at-large system. Others minority candidates who 

choose to run will need to marshall considerable resources, financial and otherwise, to mount a 

credible countywide election. These candidates need to know what the legal method of election 

will be before deciding whether or not to run. Minority voters will be adversely affected by their 

candidates’ uninformed decision about whether or not to run in 1992. 

8. The harm that will result from the failure to resolve this issue in time for candidate filing, 

and the possibility of holding yet another district judge election under an illegal election scheme 

militates towards enjoining the 1992 district judge elections until full resolution of the instant case. 

See Dillard v. Crenshaw, 640 F.Supp. 1347, 1362 (M.D. Ala. 1986). Since this Court has viewed 
  

enjoining elections as an extraordinary measure which, in most cases, is contrary to the public 

interest, Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988). other, less drastic measures should be 
  

ordered to protect minority voters’ rights. 

9. The rights of minority voters and candidates would be protected if the filing period for 

district judge candidates were extended until the resolution of this litigation. Signature and fee 

requirements should be waived to accomodate late filing. In addition, it may be necessary to 

postpone the March 3rd Primary election date. See e.g.. Watson v. Comm’rs Court of Harrison   
  

County, 616 F.2d 105,107 (Sth Cir. 1980). 

10. Interim relief extending the qualifying period may be ordered by this court. In the 

alternative, this discrete issue should be remanded for examination and ruling by the district court. 

WHEREFORE, the plaintiff-intervenor-appellees respectfully request that this Court grant 

this motion for interim relief, or in the alternative remand this discrete issue to the district court 

for review. 

 



October 29, 1991 

Respectfully submitted, 

JULIUS I./CHAMBERY 
SHERRILCYN A. IFILL 

99 Hudson Street 

16th Floor 

New York, NY 10013 

(212) 219-1900 

  

GABRIELLE K. McDONALD 
7800 N. Mopac 
Suite 215 
Austin, TX 78750 
(512) 346-6801 

 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al., 

Plaintiffs-Appellees, 

HOUSTON LAWYERS ASSOCIATION, 

et al, 

Plaintiff-Intervenor- 

Appellees, 

DAN MORALES, et al., 

State Defendants- 

Appellants, 

JUDGE SHAROLYN WOOD AND 

JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

ORDER GRANTING MOTION 

OF THE HOUSTON LAWYERS ASSOCIATION, ET AL. 

SEEKING RELIEF PENDENTE LITE 

  

It is hereby ORDERED, ADJUDGED AND DECREED that the motion of the Houston 

Lawyers’ Association, et al., to extend the qualifying period for district judge candidates in the 

upcoming 1992 primary and general election until the effective resolution of this litigation is 

GRANTED. 

SIGNED this day of , 1991. 
    

  

UNITED STATES DISTRICT JUDGE 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 30th day of October, 1991 a true 

and correct copy of Motion for Relief in Pendente Lite was mailed 

to counsel of record in this case by first class United States 

mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 
Southwest Voter Registration 

and Education Project 
201 North St. Mary’s Street 
Suite 521 

San Antonio, TX 78205 

Susan Finkelstein 
405 North St. Mary’s Street 
Suite 910 

San Antonio, TX 78205 

Edward B. Cloutman, III 

Cloutman, Albright & Bower 
3301 Elm Street 
Dallas, TX 75226-1637 

J. Eugene Clements 
John E. O’Neill 
Evelyn V. Keyes 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, TX 7002-2730 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 

John: L. Hill,6 Jr. 
Liddell, Sapp, Zivley, 

Hill & LaBoon 
3300 Texas Commerce Tower 

Houston, TX 77002 

David R. Richards 
Special Counsel 
600 West 7th Street 

Austin, TX 78701 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, TX 75201 

Gabrielle K. McDonald 
Law Office of Arthur 

L. Walker, Jr. 
7800 N. Mopac 
Suite 215 

Austin, TX 78750 

 



  

Dan Morales 
Will Pryor 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
Price Daniel Sr. 

Office Building 
209 W. 14th Street 
Austin, TX 78701-2548 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, 

Kelleher & Wheatley, 
711 Navarro, Sixth Floor 
San Antonio, TX 78205 

Inc. 

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

Suite 121 
Dallas, TX 75203 

Darrell Smith 
10999 Interstate Highway 10 
Suite 905 
San Antonio, TX 78230 

Walter L. Irvin 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 

Austin, TX 78767 

Tom Rugg 

Jefferson County 
Courthouse 

Beaumont, TX 77701 

Mark Gross, Esq. 
c/o Hon. Richard Thornburgh 
Attorney General of the 

United States 
United States Department 

of Justice 
Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 

Washington, D.C. 20530 

A. ofl 
  

Sherri 

Attorn 

J A. T£i111Y 
for Plaintiffs-Appellees