League of United Latin American Citizens (LULAC), Council No 4434 v. Clements Cross-Petition for Writ of Certiorari

    In The

No.

Supreme Court of the United States
October Term, 1993

-----------------♦ -----------------
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

COUNCIL NO. 4434, et a l,

v.
Petitioners,

WILLIAM P. CLEMENTS, GOVERNOR OF THE 
STATE, OF TEXAS, et a l,

♦
Respondents.

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit
-----------------♦ --------------—

CROSS-PETITION FOR WRIT OF 
CERTIORARI OF HARRIS COUNTY DISTRICT 

JUDGE SHAROLYN WOOD
----------------- ♦ -----------------

J. Eugene C lements 
Clements, O 'N eill & Pierce, L.L.P. 
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690 
Attorney of Record for Respondent 
Harris County District Judge 
Sharolyn Wood

Of Counsel:
Evelyn V. Keyes
Clements, O 'N eill & P ierce, L.L.P.
1000 Louisiana, Suite 1800
Houston, Texas 77002
Telephone: (713) 654-7600
Facsimile: (713) 654-7690

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

1. Whether this Court should resolve the important fed­
eral questions posed under the guaranty clause, the 
separation of powers doctrine, and the tenth and 
fourteenth amendments when a state attorney gen­
eral, in a collusive suit with the plaintiffs, refuses to 
defend state laws or represent defendant state offi­
cials who have been sued in their official capacity, 
while insisting on his sole right to represent the 
state's interests, and, while so doing, attempts to 
change constitutionally prescribed state laws of gen­
eral application by "settlement" with private plain­
tiffs enforced by court order in violation of law.

2. Whether this Court should resolve the conflict 
between the Fifth Circuit Court of Appeals' holding 
and conflicting precedent by realigning and disqual­
ifying the state attorney general who refuses to 
defend the state as a matter of policy in a lawsuit 
brought against it and attempts to "settle" the case 
and change state laws of general application by 
"agreement" with private plaintiffs over the objec­
tions of named state defendants and defendant-inter- 
venors and in violation of law.

Q U ESTIO N S PRESENTED



11

LIST OF PARTIES

The participants in the proceedings below were 

Plaintiffs:

LULAC Local Council 4434 
LULAC Local Council 4451 
LULAC (Statewide)
Christina Moreno 
Aquilla Watson 
Joan Ervin
Matthew W. Plummer, Sr.
Jim Conley 
Volma Overton 
Willard Pen Conat 
Gene Collins 
A1 Price
Theodore M. Hogrobrooks 
Ernest M. Deckard 
Judge Mary Ellen Hicks 
Rev. James Thomas

Plaintiff-Intervenors:

Houston Lawyers' Association
Alice Bonner
Weldon Berry
Francis Williams
Rev. William Lawson
DeLoyd T. Parker
Bennie McGinty
Jesse Oliver
Fred Tinsley
Joan Winn White



Ill

LIST OF PARTIES -  Continued

Defendants:

Dan Morales, Attorney General of Texas
John Hannah, Secretary of State of Texas
Texas Judicial Districts Board
Thomas R. Phillips, Chief Justice, Texas Supreme
Court
Mike McCormick, Presiding Judge, Court of 
Criminal Appeals
Pat McDowell, Presiding Judge, 1st Administra­
tive Judicial Region
Thomas J. Stovall, Jr., Presiding Judge, 2nd 
Administrative Judicial Region 
B. B. Schraub, Presiding Judge, 3rd Administra­
tive Judicial Region
Olin Strauss, Presiding Judge, 4th Administra­
tive Judicial Region
Darrell Hester, Presiding Judge, 5th Administra­
tive Judicial Region
William E. Moody, Presiding Judge, 6th Admin­
istrative Judicial Region
Weldon Kirk, Presiding Judge, 7th Administra­
tive Judicial Region
Clyde R. Ashworth, Presiding Judge, 8th 
Administrative Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Adminis­
trative Judicial Region
Joe Spurlock II, President, Texas Judicial Council 
Leonard E. Davis

Defendant-Intervenors:

Judge Sharolyn Wood 
Judge Harold Entz



IV

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED..............................................  i

LIST OF PARTIES..............................................................  ii

TABLE OF AUTHORITIES............................................... v

OPINIONS AND JUDGMENT BELOW.......................  1

JURISDICTION....................................................................  2

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS ................................................................................ 2

STATEMENT OF THE CASE........................................... 3

The Proceedings Below................................................. 3

Statement of Facts..........................................................  5

REASONS FOR GRANTING THE WRIT ...................  8

1. The Fifth Circuit Erred in Avoiding the Funda­
mental Federal Question that Arises When a State 
Attorney General Explicitly Refuses to Defend 
State Law and Defendant State O fficials, 
Attempts to Prevent Anyone Else from Defending 
the State, Adopts the Position of the Plaintiffs in a 
Lawsuit Against the State and Attempts to 
Change State Laws by Collusive "Agreement" 
With the Plaintiffs or a Sham Adversary Proceed­
ing .................................................................................... 8

2. The Fifth Circuit Erred in Failing to Realign the 
Texas Attorney General with the Plaintiffs and/or 
to Disqualify Him and His Staff as Counsel for 
Texas................................................................................ 10

CONCLUSION........................................................   15



V

F ederal C ases

Baker v. Wade, 769 F.2d 289 (5th Cir. 1985).................  11

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.
2032 (1971).........................................................................  14

Houston Lawyers' Association ("HLA") v. Attorney
General of Texas, 111 S. Ct. 2379 (1991)..........1, 3, 4, 6

New York v. United States, 112 S. Ct. 2508 (1992)...9, 10

United States v. Texas, 680 F.2d 356 (5th Cir. 1982) . . . .  12

State Cases

Public Utility Comm'n of Texas v. Gofer, 754 S.W.2d
121 (Tex. 1988).................................................................  12

State v. Reagan County Purchasing Co., 186 S.W.2d 
128 (Tex. Civ. App -  El Paso 1944, writ ref'd 
n .r.e .).....................................................................................12

Terrazas v. Ramirez, 829 S.W.2d 713 (Tex. 1991)........... 11

Federal Statutes

28 U.S.C. § 1292(b)................................................................. 7

42 U.S.C. § 1973......................................................  2

U.S. Const. Amend. 10................................................ 2, 5, 8

U.S. Const. Amend. 14......................................................2, 5

U.S. Const. Art. 2 § 1 ............................................................. 2

U.S. Const. Art. IV § 4 ....................................................2, 5

TABLE OF AUTHORITIES
Page



V I

State Statutes

Tex. Const, of 1876, Art. 1 § 3 ........................................... 2, 5

Tex. Const, of 1876, Art. 1 § 19 ......................................... 2, 5

Tex. Const, of 1876, Art. 2 § 1 ...........................................2

Tex. Const, of 1876, Art. 4 § 2 2 ...................................... 2, 6

Tex. Const, of 1876, Art. 5 §§ 7 and 7 a ......................... 2, 5

Tex. Const, of 1876, Art. 16 § 1 ...................................... 3, 6

Tex. Const, of 1876, Art. 17 § 1 ...................................... 3, 5

Tex. Disciplinary R. Prof. Conduct § 1.06(b).............3, 6

Tex. Gov't Code Ann. § 402.004 (Vernon 1988)----  3, 6, 12

Tex. Civ. Prac. & Rem. Code §§ 402.041, 402.045..........3, 6

Tex. Rev. Civ. Stat. Ann. Art. 4399....................................... 3, 6

Tex. Rev. Civ. Stat. Ann. Art. 4411........................................3, 6

TABLE OF AUTHORITIES -  Continued
Page



N o._________
-------------------------------4 _ -----------------------------

In The

Supreme Court of the United States
October Term, 1993

---------------- ♦-----------------
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

COUNCIL NO. 4434, et al.,
Petitioners,

v.

WILLIAM P. CLEMENTS, GOVERNOR OF THE 
STATE, OF TEXAS, et a l,

Respondents.
-----------------♦-----------------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit
----------------♦-----------------

CROSS-PETITION FOR WRIT OF 
CERTIORARI OF HARRIS COUNTY DISTRICT 

JUDGE SHAROLYN WOOD
---------------- ♦-----------------

Respondent/Intervenor Harris County District Judge 
Sharolyn Wood ("Judge Wood") files this Cross-Petition 
for Writ of Certiorari to respectfully show the Court the 
following:

----- ------------♦-----------------

OPINIONS AND JUDGMENT BELOW

This case is on remand from Houston Lawyers' Asso­
ciation ("HLA") v. Attorney General of Texas, 111 S. Ct. 2379

1



2

(1991). The en banc opinion of the Fifth Circuit is reported 
at 999 F.2d 831 and is set out at pp. la-202a of the 
Appendix ("App.") filed by Petitioners, the League of 
United Latin American Citizens ("LULAC") et al. (collec­
tively "Plaintiffs"). The panel decision rendered on 
remand and vacated by the en banc Court is reported at 
986 F.2d 728 and is set out at App. 203a-486a. The opinion 
of the United States District Court for the Western Dis­
trict of Texas is not reported and is set out at App. 
487a-549a.

-----------------♦ -----------------

JURISDICTION

Judge Wood adopts the Plaintiffs' statement of juris­
diction.

-----------------♦ -----------------

CONSTITUTIONAL AND STATUTORY PROVISIONS

This cross-petition involves Section 2 of the Voting 
Rights Act, as amended, 42 U.S.C. § 1973, set out in 
Plaintiffs' Petition ("Pet.") at 2-3, U.S. Const, and Tex. 
Const, of 1876, A rt. 2 § 1 (separation of powers doctrine), 
set out in Appendix B ("App. B") hereto at 2b; U.S. C onst. 
A rt. IV § 4 (Guaranty Clause), App. B at lb; U.S. C onst. 
A mend. 10, App. B at lb; U.S. Const. A mend. 14, App. B at 
lb, and Tex. Const, o f  1876, A rt. 1 § 3 (equal protection of 
law), App. B at 2b; U.S. Const. A mend. 14, App. at lb, and 
Tex. C onst, of 1876, A rt. 1 § 19 (due process of law), App. 
B at 2b; Tex. C onst, of 1876, A rt. 4 § 22 (powers of the 
attorney general), App. B at 3b; Tex. C onst, of 1876, A rt. 5 
§§ 7 and 7a (election and qualifications of state district



3

judges), App. B at 3b-5b; A rt. 16 § 1 (official oath), App. B 
at 5b; Art. 17 § 1 (amendment of Texas Constitution), 
App. B at 5b-7b; former Tex. Rev. Crv. Stat. A nn. A rt. 4399 
(repealed and codified at Tex. C iv. Prac. & Rem. C ode 
§§ 402.041, 402.045) (Whom to advise), App. B at 7b; 
former Tex. Rev. Civ. Stat. A nn. A rt. 4411 (No admission 
[by attorney general] to prejudice [of state]), (repealed 
and recodified at Tex. Gov't Code § 402.004), App. B at 8b; 
and Tex. Disciplinary R. Prof. C onduct 1.06(b) (conflict of 
interest), App. B at 8b-9b.

-----------------♦---------------- -

STATEMENT OF THE CASE 

The Proceedings Below

The proceedings in this case are accurately stated in 
the Fifth Circuit's en banc opinion, App. la-28a. Judge 
Wood adopts that statement of proceedings but would 
add that, essentially, this is a vote dilution challenge 
under § 2 of the Voting Rights Act to Texas' county-wide 
system for electing state district judges in Texas' nine 
most populous counties. The case is on remand from HLA 
v. Attorney General, 111 S. Ct. 2379 (1991), in which this 
Court, reversing an en banc majority opinion of the Fifth 
Circuit, held that a vote dilution challenge may be 
brought under § 2 to district judge elections. Acknowl­
edging, however, Texas' strong state interest in linking 
the jurisdiction and electoral base of its district judges 
and the detrimental effect on minority voting powers of 
severing that linkage, this Court remanded the case to the 
Fifth Circuit with specific instructions to determine



4

whether vote dilution "may be found or remedied" under 
the totality of the circumstances. I l l  S. Ct. at 2380-81.

The case was rebriefed and heard by the original 
three-judge panel. Fifteen months later, a two-judge 
majority of that panel affirmed the trial court's finding of 
illegal vote dilution in eight of the nine target counties. 
Within a matter of days, the Fifth Circuit vacated the 
panel majority opinion sua sponte and ordered en banc 
review.

Following oral argument, the en banc Court issued its 
opinion and judgment on August 23, 1993, reversing the 
judgment of the trial court and rendering judgment for 
the defense. The opinion also rejected attempts by Texas 
Attorney General Dan Morales and the Plaintiffs to abort 
en banc review and then "settle" the case over the objec­
tions of the state officials and Defendant-Intervenors 
without a judicial finding of illegality in Texas' district 
judge election system, thereby replacing Texas' constitu­
tionally mandated county-wide election system with their 
own preferred subdistricting plan. The Court denied 
Attorney General Morales' and the Plaintiffs' motion to 
remand this case to the district court for implementation 
by "consent decree." The Court, however, also denied 
motions by the Defendant-Intervenors, Judge Wood and 
Dallas County District Judge Harold Entz ("Judge Entz") 
to realign Attorney General Morales with the plaintiffs 
and to expand their intervention as necessary to cover all 
counties, and it denied Judge Wood's motion to disqual­
ify Attorney General Morales as counsel for the defense.

The Plaintiffs filed a petition for writ of certiorari on 
the merits and on the Fifth Circuit's refusal to remand on



5

October 21, 1993. Judge Wood received a copy on Novem­
ber 1, 1993. She files this cross-petition on the Fifth Cir­
cuit's denial of her motions to realign and disqualify the 
Texas Attorney General.

Statement of Facts

The essential facts relevant to this cross-petition for 
certiorari are set out in the en banc opinion of the Fifth 
Circuit Court of Appeals, App. at 4a-28a, and Judge 
Wood adopts them. Essentially, the Court detailed and 
condemned the refusal of Texas Attorney General 
Morales to defend the state officials sued in this case, his 
attempts to prevent anyone else from defending the State 
-  specifically including Judge Wood -  and his and the 
Plaintiffs' collusive attempt to enlist the injunctive 
powers of the Fifth Circuit in imposing their own prefer­
red plan for electing state district judges from subdistricts 
without any finding of illegality in the present system 
and in violation of numerous federal and state constitu­
tional provisions and state laws.1

1 Laws cited by Judge Wood to the en banc Court of Appeals 
which have been violated by Attorney General Morales include 
the separation of powers doctrine under the Texas and United 
States Constitutions; the Guaranty Clause, Article IV, § 4, and 
the Tenth Amendment of the United States Constitution; the 
equal protection doctrine, Article 1 § 3 of the Texas Constitution 
and Fourteenth Amendment to the United States Constitution; 
the due process doctrine, Art. 1 § 19 of the Texas Constitution 
and Fourteenth Amendment; Art. 17 § 1 of the Texas Constitu­
tion (which requires the approval of two-thirds of the Texas 
legislature, public notice, and a majority vote of the citizens of 
Texas to amend any provision of the Texas Constitution); Art. 5 
§§ 7 and 7a of the Texas Constitution (which prescribe Texas'



6

Judge Wood adds that when this case was previously 
before this Court for oral argument on April 22, 1991, sub 
nom HLA v. Attorney General on the issue whether state 
district judges are "representatives" of their constituents 
within the meaning of § 2 of the Voting Rights Act, the 
Assistant Texas Attorney General who argued for the 
State of Texas at the request of Attorney General Morales 
expressly refused to defend the en banc majority opinion 
of the Fifth Circuit, which had held that, since district 
judges are not "representatives" of their constituents, 
district judge elections are not covered by § 2. The Attor­
ney General averred, "Much to the chagrin of much of the 
Texas judiciary, many of the people that have intervened 
on my case, I do not -  I anticipate Mr. Pugh -  I do not 
adopt the theory of noncoverage that Louisiana has

method for electing state district judges); Article 4 § 22 of the 
Texas Constitution (which provides, "The Attorney Gener­
al . .  . shall represent the State in all suits and pleas in the 
Supreme Court of the State in which the State may be a party."); 
Attorney General Morales' own oath of office, Tex. Const, of 
1876 Art. 16 § 1; former article 4399 of the Texas Constitution 
(repealed and codified at Tex. C iv. Prac. & Rem. Code 
§§ 402.041-402.045) (which prohibits the Texas Attorney General 
from giving advice to private civil counsel or from representing 
the interests of those challenging the laws of Texas in cases he is 
bound by his constitutional duty to defend); former article 4411 
of Vernon's Revised Texas Statutes, repealed and codified at 
§ 402.004 of the Texas Government Code (which provides, "No 
admission, agreement or waiver, made by the Attorney General, 
in any action or suit in which the State is a party, shall prejudice 
the rights of the State"); and Rule 1.06(b) of the Texas Disciplin­
ary Rules of Professional Conduct (which proscribes conflicts of 
interest on the part of advocates and prohibits lawyers from 
switching sides in litigation and choosing to represent the 
adversary).



7

adopted or that the Fifth Circuit adopted." Tr. at 28. He 
went on to argue that the term "representative" is indeed, 
"capable of covering judges" -  the exact opposite of the 
Fifth Circuit's en banc holding in favor of the State. Tr. at 
45. He expressly repudiated the reasoning of the Fifth 
Circuit majority, Tr. at 46, introduced a wholly new and 
incomprehensible argument ostensibly "defending" the 
State, and offered the opinion that if this Court did not 
agree with him, "you must remand." Tr. at 46. He also 
volunteered the information to the Court that since he 
was having to defend the case, "I'm having a hard time 
thinking." Tr. at 53. This Court reversed the en banc 
majority opinion of the Fifth Circuit which had been 
rejected by the State of Texas' own counsel, i.e., the only 
counsel permitted to argue for the defense.

In reality, the Defendant-Intervenors, Judges Wood 
and Entz, had sought the interlocutory appeal under 28 
U.S.C. § 1292(b) which resulted in the Fifth Circuit's en 
banc opinion and this Court's review when the Texas 
Attorney General refused to do so, and Judges Wood and 
Entz -  not Attorney General Morales -  had taken the lead 
on appeal. See App. at 5a, 19a. When the case reached this 
Court, the Defendant-Intervenors moved to divide oral 
argument -  a motion strongly opposed by Attorney Gen­
eral Morales. The Court denied their motion and only the 
Attorney General was heard.

At the May 24, 1993, en banc hearing on remand, the 
Assistant Attorney General refused to argue in support of 
Texas law and, on direct questioning by the Court, con­
ceded that the Attorney General no longer advocated the 
defense of the Texas system. At this stage, this suit is



8

collusive as between the Petitioners and the Texas Attor­
ney General, who share the common goal of subverting 
Texas law by "settlement" or a sham adversary proceed­
ing.

-----------------♦-----------------

REASONS FOR GRANTING THE WRIT
1. The Fifth Circuit Erred in Avoiding the Funda­

mental Federal Question that Arises When a 
State Attorney General Explicitly Refuses to 
Defend State Faw and Defendant State Offi­
cials, Attempts to Prevent Anyone Else from 
Defending the State, Adopts the Position of the 
Plaintiffs in a Eawsuit Against the State and 
Attempts to Change State Faws by Collusive 
"Agreement" With the Plaintiffs or a Sham 
Adversary Proceeding.

It is a federal question of utmost importance under 
the Guaranty Clause, the Tenth Amendment, and the 
doctrines of equal protection and due process of law 
whether a state attorney general should be realigned as a 
plaintiff and disqualified as defense counsel when, aver­
ring that state law is indefensible and it is his duty to 
implement his own policy, he refuses to defend state law 
and defendant state officials, attempts to prevent anyone 
else from defending the State, and attempts to change the 
duly enacted laws of the State by collusive agreement 
with private plaintiff interest groups, enforced by federal 
court order, without any finding of illegality in the chal­
lenged law (and avowedly in order to avoid judicial 
review of the law) and in violation of numerous federal 
and state constitutional provisions and statutes.



9

This Court had occasion in 1992 to deal with the 
threat posed to federalism by state officials who ratify 
unconstitutional plans by "consent." New York v. United 
States, 112 S. Ct. 2508, 2431 (1992). On behalf of the Court, 
Justice O'Connor pointed out that "powerful incentives 
might lead both federal and state officials to view depar­
tures from the federal structure to be in their personal 
interests" and that the interests of public officials may not 
coincide with the Constitution's allocation of authority. 
Id. at 2432. She stated, "The Constitution does not protect 
the sovereignty of States for the benefit of the States or 
state governments as abstract political entities, or even 
for the benefit of the public officials governing the States. 
To the contrary, the Constitution divides authority 
between federal and state governments for the protection 
of individuals." Id. She indicated that in such a case the 
seperation of powers, the Tenth Amendment, and the 
Guaranty Clause would be implicated. Id. The situation is 
even more egregious when a state attorney general, in the 
absence of a violation of federal law, attempts to impli­
cate the power of the federal judiciary to implement a 
personal political objective in collusion with private liti­
gants and in violation of many state constitutional and 
statutory provisions. That is the fundamental issue here.

The Plaintiffs have raised the "settlement" issue in 
this Court in their petition for writ of certiorari -  a tactic 
that seems certain to fail since there is nothing to remand 
where there is no illegality. But the fail-back strategy is 
clearly for Attorney General Morales -  who has once 
refused to defend the en banc opinion of the Fifth Circuit 
in arguments made to this Court and who pointedly 
refused to defend the State at the en banc hearing on



10

remand -  to do the same thing again with the same goal 
of snatching defeat from the jaws of victory by thwarting 
the defense of the State of Texas, which he claims sole 
authority to "represent." This would be a travesty of law 
and justice and, like Attorney General Morales' prior 
efforts in this regard, a blatant violation of the spirit and 
letter of New York.

The Court should, therefore, grant Defendant-Inter- 
venor Judge Wood's Cross-Petition for Writ of Certiorari 
and reverse the Fifth Circuit's denial of her motion to 
realign Texas Attorney General Morales with the Plain­
tiffs and to disqualify him as counsel for the State whose 
interests he repudiates; and it should permit her to 
defend the State of Texas at oral argument. 2

2. The Fifth Circuit Erred in Failing to Realign the 
Texas Attorney General with the Plaintiffs and/ 
or to Disqualify Him and His Staff as Counsel 
for Texas.

In its en banc opinion below, the Fifth Circuit itself 
soundly condemned the collusive activities of Attorney 
General Morales in this case, citing numerous extra-legal 
actions he had taken and numerous authorities -  both 
federal and state -  condemning such behavior by the 
Attorney General. The Court observed, for example, that, 
having contended that "the Attorney General is the exclu­
sive lawyer for the State of Texas . . . , General Morales 
also maintains that in his role as lawyer for the State, he 
need not represent the State's policy makers; he can 
ignore them and impose his own views." App. at 9a. The 
Court held, "Texas law does not sanction his actions." Id.



11

It cited its own case, Baker v. Wade, 769 F.2d 289 (5th Cir. 
1985) (en banc), as authority, reminding the Attorney Gen­
eral that in that case it “rejected the very power claimed 
by this Attorney General." The Court correctly con­
cluded, "The power he would exercise cannot be squared 
with Baker." App. at 11a.

The Court also observed that although "the state 
courts have had little occasion to face such a bold claim of 
authority," their decisions (when considering the activ­
ities of this same Attorney General, among others) "offer 
him little comfort." App at 12a. The Court cited Terrazas v. 
Ramirez, 829 S.W.2d 713 (Tex. 1991), in which the Texas 
Supreme Court refused to allow Attorney General 
Morales to "settle" a legislative reapportionment case.2 
Citing still to Terrazas, the Fifth Circuit held, "No lawyer 
may forge a settlement agreement over the express objec­
tion of his client," specifically over the objection of Chief 
Justice Phillips of the Texas Supreme Court, a named 
Defendant, who was forced to hire his own counsel when 
Attorney General Morales refused to defend his interests 
or involve him in "settlement" discussions. App. at 14a. 
Attorney General Morales moved to disqualify the Chief 
Justice's private counsel.

Reviewing Attorney General Morales claims of 
authority to impose his policy views on the state and to 
bind state officials to that policy, the Court reminded him 
that "the Attorney General represents the State but does 2

2 This pattern of "settling" federal Voting Rights Act 
cases by capitulation, then using the federal courts to alter state 
law without complying with the electoral process required by 
the State should be disquieting to constitutional scholars.



12

not make its policies" and that "Texas has been at particu­
lar pains to circumscribe the power of the attorney gen­
eral to make admissions on its behalf." App. at 15a (citing 
Tex. Gov't Code Ann. § 402.004 (Vernon 1988) and State v. 
Reagan County Purchasing Co., 186 S.W.2d 128, 135 (Tex. 
Civ. App. -  El Paso 1944, writ ref'd n.r.e.); United States v. 
Texas, 680 F.2d 356, 368 n.17 (5th Cir. 1982). The Court 
held that Attorney General Morales "cannot ignore his 
clients and bind the state against their wishes." App. at 
18a (citing to Public Utility Comm'n of Texas v. Cofer, 754 
S.W.2d 121, 125 (Tex. 1988).

The Court also took the Texas Attorney General 
soundly to task for attempting to "settle" this case and 
thus deprive Judges Wood and Entz of their right to a 
judicial determination of the merits of their indepen­
dently perfected appeals. App. at 18a-21a. And it pointed 
out that Attorney General Morales' and the Plaintiffs' 
attempt to use the injunctive power of the Court to 
achieve a result they were not able to achieve through the 
political process was an abuse of the legal system. App. at 
21a-24a. The Court stated that it could use such power 
only as "a tailored remedial response to illegality," App. 
at 24a, which was non-existent, and that it could not put 
its sanction behind a settlement that was unfair or that 
"violates constitutional statutes or jurisprudence," App. 
at 22a, which this one, in its "attempts to avoid constitu­
tional requirements," App. at 27a, plainly did. The Court 
concluded, "The suggestions that state political groups, 
unable to muster sufficient political force to change the 
system can by 'agreement' enlist the preemptive power of 
the federal court to achieve the same end stands federal­
ism on its head." App. at 28a.



13

The Fifth Circuit thus accepted Judge Wood's allega­
tion that the activities of Attorney General Morales vio­
lated fundam ental federal p rincip les and state 
constitutional and statutory provisions. The Court also 
expressly recognized the fact that Judges Wood and Entz 
had "played an important role at trial and have since 
taken the lead," had standing to pursue the appeal on the 
merits, and were entitled to a legal determination of the 
issues (which were the core issues the Plaintiffs seek to 
have this court review). App. at 5a, 19a~28a.

Nevertheless, despite its unequivocal condemnation 
of the actions of Attorney General Morales as purported 
counsel for the defense, the Fifth Circuit, with no citation 
except for authority to the contrary, denied Judges Wood's 
and Entz's motions to realign, App. at 17a, and Judge 
Wood's motion to disqualify, App. at 18a. The Fifth Cir­
cuit observed "while we have rejected [Attorney General 
Morales'] claimed power to bind against their will state 
officials he is charged to represent, he is nonetheless their 
counsel." Id.

The Court made it clear, however, that its denial of 
the Defendant-Intervenors' motions was provisional and 
contingent on the Attorney General's actually representing 
the State's interests and not his own. App. at 17a-18a. In 
provisionally denying the Defendant-Intervenors 
motions to realign and disqualify, however, the Court 
stated, mistakenly, that Attorney General Morales did not 
purport to represent the Defendant-Intervenors, Judges 
Wood and Entz. App. at 18a. This was a critical mistake. 
In reality, Attorney General Morales had vigorously 
opposed Judges Wood's and Entz s participation in the 
case on the ground that he himself represented them in



14

their official capacity as state district judges and that they 
had no personal standing to defend this case. Indeed, the 
Attorney General conceded in oral argument that the 
very terms of his settlement agreement were crafted to 
attempt to deprive Judges Wood and Entz of standing to 
pursue this appeal and the Fifth Circuit itself recognized 
this admission in its opinion. App. at 8a, 18a-19a.

Not only did the failure of the Fifth Circuit to realign 
and disqualify Attorney General Morales and to permit 
the Defendant-Intervenors to carry the defense of the 
State conflict with the Fifth Circuit's own holdings 
regarding disqualifying activities by a state attorney gen­
eral and the circumstances under which others may 
assume the duties abdicated by the Attorney General, it 
also conflicted with binding opinion of the Texas 
Supreme Court on the same subject, as the Court's own 
citations prove.

In addition, the Fifth Circuit's failure to realign 
Attorney General Morales and disqualify him conflicts 
with precedent of this Court. In Coolidge v. New Hamp­
shire, this Court held that a state attorney general was per 
se disqualified from playing the dual roles of investigat­
ing and prosecuting a case on the one hand and adjudi­
cating the issue of probable cause to issue search 
warrants on the other hand. Coolidge v. New Hampshire, 
403 U.S. 443, 91 S. Ct. 2032 (1971). It follows a fortiori that 
a state attorney general may not insist on his right to 
"defend" a state's laws and state officials against a fed­
eral suit and, at the same time, declare the challenged 
state law "indefensible" and declare it his duty as a 
matter of "policy" to replace it with his personal "consent 
decree" or "settlement" worked out in collusion with



15

private plaintiffs over the objections of affected defen- 
dant-intervenors and defendant state officials and in vio­
lation of federal and state constitutional and statutory 
principals.

As the facts recited above show, if certiorari is 
granted in this case, the en banc opinion of the Fifth 
Circuit will not only be without defenders, the voice of 
the defense will sing the tune of the petitioners. Given the 
rule of this Court that only one advocate may represent 
each side at oral argument, the only way to prevent a 
sham proceeding is for this Court to realign Texas Attor­
ney General Morales as a plaintiff, not a defendant, to 
disqualify him as counsel for the defense, and to award 
oral argument to the intervenors -  whose briefs and 
arguments throughout this case have been in full accord 
with all applicable law and principles of legal ethics and 
whose commitment to the defense of this case has been 
unwavering. See App. at 19a.

-----------------♦-----------------

CONCLUSION

At this stage, this is a classic collusive suit where 
Petitioners and the State Attorney General (although 
ostensibly adverse) are seeking to overthrow the law of 
the State of Texas by agreement if possible or by the sham 
of a purported adverary proceeding if necessary. This 
Court should not decide important federal questions with 
only one side present. Respondent Harris County District 
Judge Sharolyn Wood requests that the Court grant her 
cross-petition for writ of certiorari and reverse the judg­
ment of the Fifth Circuit Court of Appeals solely insofar



16

as it denies her motions to realign the Texas Attorney 
General with the Plaintiffs as a party, and to disqualify 
him and his staff as counsel for the Defendants. She 
requests that the Court realign and disqualify the Taxes 
Attorney General and expand the Defendant-Intervenors' 
intervention as necessary to cover all target counties and 
accord oral argument for the defense to the Defendant- 
Intervenors. Judge Wood finally requests that the Court 
deny the Plaintiffs' petition for writ of certiorari on the 
merits of this case, or alternatively, in the event it grants 
certiorari, that it affirm the en banc judgment of the Fifth 
Circuit Court of Appeals on the merits.

Respectfully submitted,
J. Eugene Clements 
Clements, O 'N eill & P ierce, L.L.P. 
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690 
Attorney of Record for Respondent 
Harris County District Judge 
Sharolyn Wood

Of Counsel:
Evelyn V. Keyes
Clements, O 'N eill & Pierce, L.L.P.
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690



1-b

APPENDIX

UNITED STATES CONSTITUTION 

Section 4. Republican Government

Section 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion; and on 
Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic 
Violence.

U.S. C onst. A rt. 4 § 4.

AMENDMENT X -  RESERVED POWERS TO STATES

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.

U.S. C onst. A mend. X.

AMENDMENT XIV -  CITIZENSHIP; PRIVILEGES 
AND IMMUNITIES; DUE PROCESS; EQUAL PROTEC­
TION

Section 1. . . .  No State shall make or enforce any law 
which shall abridge the privileges or immunities of citi­
zens of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction the 
equal protection of the laws. . . .

U.S. C onst. A mend. XIV § 1.



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TEXAS CONSTITUTION OF 1876 

§ 3. Equal rights

Sec. 3. All free men, when they form a social com­
pact, have equal rights, and no man, or set of men, is 
entitled to exclusive separate public emoluments, or priv­
ileges, but in consideration of public services.

Tex. Const, of 1876, A rt. 1 § 3.

§ 19. Deprivation of life, liberty, etc.; due course of law

Sec. 19. No citizen of this State shall be deprived of 
life, liberty, property, privileges or immunities, or in any 
manner disfranchised, except by the due course of the 
law of the land.

Tex. Const, of 1876, A rt. 1 § 19.

§ 1. Division of powers; three separate departments; 
exercise of power properly attached to other 
departments

Section 1. The powers of the Government of the 
State of Texas shall be divided into three distinct depart­
ments, each of which shall be confided to a separate body 
of magistracy, to wit: Those which are Legislative to one, 
those which are Executive to another, and those which 
are Judicial to another; and no person, or collection of 
persons, being of one of these departments, shall exercise 
any power properly attached to either of the others, 
except in the instances herein expressly permitted.

Tex. Const, of 1876, A rt. 2 § 1.



3-b

§ 22. Attorney General

Sec. 22. The Attorney General elected at the general 
election in 1974, and thereafter, shall hold office for four 
years and until his successor is duly qualified. He shall 
represent the State in all suits and pleas in the Supreme 
Court of the State in which the State may be a party, . . . .

Tex. C onst, of 1876, A rt. 4 § 22.

§ 7. Judicial Districts; District Judges; terms or ses­
sions; absence, disability or disqualification of 
Judge

Sec. 7. The State shall be divided into judicial dis­
tricts, with each district having one or more Judges as 
may be provided by law or by this Constitution. Each 
district judge shall be elected by the qualified voters at a 
General Election and shall be a citizen of the United 
States and of this State, who is licensed to practice law in 
this State and has been a practicing lawyer or a Judge of a 
Court in this State, or both combined, for four (4) years 
next preceding his election, who has resided in the dis­
trict in which he was elected for two (2) years next 
preceding his election, and who shall reside in his district 
during his term of office and hold his office for the period 
of four (4) years, and who shall receive for his services an 
annual salary to be fixed by the Legislature. The Court 
shall conduct its proceedings at the county seat of the 
county in which the case is pending, except as otherwise 
provided by law. He shall hold the regular terms of his 
Court at the County Seat of each County in his district in 
such manner as may be prescribed by law. The Legisla­
ture shall have power by General or Special Laws to



4-b

make such provisions concerning the terms or sessions of 
each Court as it may deem necessary.

The Legislature shall also provide for the holding of 
District Court when the Judge thereof is absent, or is from 
any cause disabled or disqualified from presiding.

(Amended Nov. 5, 1985.) Tex. C onst, of 1876, A rt. 5 § 7.

§ 7a. Judicial District Board; reapportionment of judi­
cial districts

Sec. 7a. (a) The Judicial Districts Board is created
to reapportion the judicial districts authorized by Article 
V, Section 7, of this constitution.

(b) The membership of the board consists of the 
Chief Justice of the Texas Supreme Court who serves as 
chairman, the presiding judge of the Texas Court of Crim­
inal Appeals, the presiding judge of each of the adminis­
trative judicial districts of the state, the president of the 
Texas Judicial Council, and one person who is licensed to 
practice law in this state appointed by the governor with 
the advice and consent of the senate for a term of four 
years. In the event of a vacancy in the appointed member­
ship, the vacancy is filled for the unexpired term in the 
same manner as the original appointment.

(i) The legislature, the Judicial Districts Board, or 
the Legislative Redistricting Board may not redistrict the 
judicial districts to provide for any judicial district 
smaller in size than an entire county except as provided 
by this section. Judicial districts smaller in size than the 
entire county may be created subsequent to a general



5-b

election where a majority of the persons voting on the 
proposition adopt the proposition "to allow the division
o f ___County into judicial districts composed of parts of
__  County." No redistricting plan may be proposed or
adopted by the legislature, the Judicial Districts Board, or 
the Legislative Redistricting Board in anticipation of a 
future action by the voters of any county.

(Adopted Nov. 5, 1985). Tex. C onst, of 1876, Art. 5 § 7a. 

§ 1. Official Oath

Sec. 1. (a) Members of the Legislature, and all
other elected officers, before they enter upon the duties of 
their offices, shall take the following Oath or Affirmation:

" I , ___, do solemnly swear (or affirm), that I
will faithfully execute the duties of the office of
__ of the State of Texas, and will to the best of
my ability preserve, protect, and defend the 
Constitution and laws of the United States and 
of this State, so help me God."

Tex. C onst, of 1876, A rt. 16 § 1.

§ 1. Proposed amendments; submission to voters; 
adoption

Section. 1. The Legislature, at any regular session, 
or at any special session when the matter is included 
within the purposes for which the session is convened, 
may proposed amendments revising the Constitution, to 
be voted upon by the qualified electors for statewide 
offices and propositions, as defined in the Constitution 
and statutes of this State. The date of the elections shall



6-b

be specified by the Legislature. The proposal for submis­
sion must be approved by a vote of two-thirds of all the 
members elected to each House, entered by yeas and nays 
on the journals.

A brief explanatory statement of the nature of a 
proposed amendment, together with the date of the elec­
tion and the wording of the proposition as it is to appear 
on the ballot, shall be published twice in each newspaper 
in the State which meets requirements set by the Legisla­
ture for the publication of official notices of officers and 
departments of the state government. The explanatory 
statement shall be prepared by the Secretary of State and 
shall be approved by the Attorney General. The Secretary 
of State shall send a full and complete copy of the pro­
posed amendment or amendments to each county clerk 
who shall post the same in a public place in the court­
house at least 30 days prior to the election of said amend­
ment. The first notice shall be published not more than 60 
days nor less than 50 days before the date of the election, 
and the second notice shall be published on the same day 
in the succeeding week. The Legislature shall fix the 
standards for the rate of charge for the publication, which 
may not be higher than the newspaper's published 
national rate for advertising per column inch.

The election shall be held in accordance with pro­
cedures prescribed by the Legislature, and the returning 
officer in each county shall make returns to the Secretary 
of State of the number of legal votes cast at the election 
for and against each amendment. If it appears from the 
returns that a majority of the votes cast have been cast in 
favor of an amendment, it shall become a part of this



7-b

Constitution, and proclamation thereof shall be made by 
the Governor.

(Amended Nov. 7, 1972.) Tex. Const, of 1876, A rt. 17 § 1.

TEXAS REVISED CIVIL STATUTES 
& TEXAS CODES

Art. 4399. Whom to advise

The Attorney General at the request of the Governor, 
or the head of any department of the State government, 
including the heads and boards of penal and eleemosyn­
ary institutions, and all other State boards, regents, 
trustees of the State educational institutions, committees 
of either branch of the Legislature, and county auditors 
authorized by law, shall give them written advice upon 
any question touching the public interest, or concerning 
their official duties. . . .  He is hereby prohibited from 
giving legal advice or written opinions to any other than 
the officers or persons named herein.

Tex. Rev. Crv. Stat. A nn. Art. 4399 (repealed and recodified 
at Tex. Civ. Prac. & Rem. Code §§ 402.044-402.045).

§ 402.041. Definition

In this subchapter "opinion" means advice or a judg­
ment or decision and the legal reasons and principles on 
which it is based.

Tex. Crv. Prac. & Rem. Code § 402.041.



8-b

§ 402.045. Limitation

The attorney general may not give legal advice or a 
written opinion to a person other than a person named in 
this subchapter.

Tex. C iv. Prac. & Rem. Code § 402.045.

Art. 4411. [4429] [2902] [2807] No admission to preju­
dice.

No admission, agreement or waiver, made by the 
Attorney General in any action or suit in which the State 
is a party, shall prejudice the rights of the State.

Acts 1846, p. 206; P.D. 211; G.L. vol. 2, p. 1148. Tex. Rev. 
Civ. Stat. A nn. A rt. 4411 (repealed and recodified at Tex. 
Gov't. Code 402.004.

TEXAS DISCIPLINARY RULES 
OF PROFESSIONAL CONDUCT

RULE 1.06 CONFLICT OF INTEREST: GENERAL RULE

(a) A lawyer shall not represent opposing parties to 
the same litigation.

(b) In other situations and except to the extent per­
mitted by paragraph (c), a lawyer shall not represent a 
person if the representation of that person:

(2) reasonably appears to be or become adver­
sely limited by the lawyer's or law firm's responsibilities 
to another client or to a third person or by the lawyer's or 
law firm's own interests.



9-b

(e) If a lawyer has accepted representation in viola­
tion of this Rule, of if multiple representation properly 
accepted becomes improper under this Rule, the lawyer 
shall promptly withdraw from one or more representa­
tions to the extent necessary for any remaining represen­
tation not to be in violation of these Rules.

(f) If a lawyer would be prohibited by this Rule 
from engaging in particular conduct, no other lawyer 
while a member or associated with that lawyer's firm 
may engage in that conduct.

(Adopted eff. Jan. 1, 1990.) Tex. D isciplin ary  R. Prof. Con­
d u ct  1.06