Defendant-Intervenor Judge Wood's Reply to Plaintiffs' Motion for Interim Attorneys' Fees

    PorRTER & CLEMENTS 
A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

  

ATTORNEYS AT LAW 

700 LOUISIANA, SUITE 3500 

P.O. BOX 4744 

EVELYN V. KEYES HOUSTON, TEXAS 77002-2730 
HOUSTON, TX 77210-4744 

MAILING ADDRESS:   

(713) 226-0620 
  

TELECOPIER (713) 228-1331 

TELEPHONE (713) 226-0600 

March 16, 1993 

Mr. John Neil, Clerk VIA FEDERAL EXPRESS 
U. S. District Court 

Midland-Odessa Division 
200 E. Wall, Room 316 

Midland, Texas 79702 

Re: No. MO-88-CA-154; League of United Latin American Citizens, Council No. 4434, et 

al., Plaintiffs, Houston Lawyers’ Association, Plaintiff-Intervenors v. Attorney General 
Dan Morales, State Defendants and Judge Sharolyn Wood, et al., Defendant-Appellant; 

In the United States District Court for the Western District of Texas Midland Odessa 
Division 

Dear Mr. Neil: 

Enclosed for filing in the above-referenced case, please find the original and two copies 

of Defendant-Intervenor Judge Wood’s Reply to Plaintiffs’ Motion for Interim Attorneys’ Fees. 

Please place your file mark on the enclosed extra copy and return to me for my file. 

By copy of this letter, all counsel of record are being notified of this filing. Thank you 
for your attention to this matter. 

Very truly yours, 

Lin [/ Lay _ 
Evelyn V. Keyes 

EVK:taw 

enclosures 
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THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

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

Plaintiff- Appellees, 
V. 

JIM MATTOX, Attorney General 

of the State of Texas, et al., 

NO. MO-88-CA-154 
Defendant-Appellants, 

and 

Harris County District Judge 

SHAROLYN WOOD, 
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Defendant- Appellant. 

DEFENDANT-INTERVENOR JUDGE WOOD’S REPLY TO 
PLAINTIFFS’ MOTION FOR INTERIM ATTORNEYS’ FEES 
  

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: 

COMES NOW Defendant-Intervenor Harris County District J udge Sharolyn Wood 

("Judge Wood") and files this Reply to Plaintiffs’ Motion for Interim Attorneys’ Fees to show 

the Court the following: 

1. Judge Wood would respectfully remind the Court that it is without jurisdiction to 

entertain plaintiffs and plaintiff-intervenors’ motion since all proceedings in this Court have been 

stayed pending resolution of all appeals by order of the Fifth Circuit Court of Appeals. A copy 

of the stay order is attached as Exhibit "A." Plaintiffs are aware that jurisdiction over this case 

lies in the Fifth Circuit Court of Appeals and not in this Court, as their motion itself attests. 

2. In addition, Plaintiffs’ motion is not justified on the merits. Plaintiffs represent 

to the Court that, "given the recent panel opinions, Plaintiffs are prevailing parties on the  



  

Plaintiffs’ Motion at § 3. This is not the case. As Plaintiffs know, the Fifth Circuit litigation. 

Court of Appeals granted en banc review of the referenced case sua sponte on February 11, 

1993 and vacated the panel opinion on which Plaintiffs base their claim that they are prevailing 

parties. A copy of the Fifth Circuit’s Order of February 11, 1993, addressed to all counsel, is 

attached as Exhibit "B." It clearly states, 

Enclosed is an order this day entered by the Court directing that this case 
be reheard en banc with oral argument. 

Under Fifth Circuit Local Rule 41.3 the effect of granting a rehearing en 
banc is to vacate the previous opinion and judgment of this Court and stay the 
mandate. 

Exhibit "B." Thus, there is no determination that Plaintiffs are prevailing parties as required 

for a disbursement of interim fees pursuant to 42 U.S.C. § 1988. And there is no basis for 

Plaintiffs’ claim that they will ultimately prevail on the merits of this suit. 

3. Finally, the Plaintiffs would not, in any event, be entitled to attorneys’ fees for 

their expenses undertaken voluntarily in preparing legislation for the Texas Attorney General to 

subject to the Texas legislature for which they request fees. Plaintiffs are under no court order 

to devise a remedy for any violation of section 2 of the Voting Rights Act. The Fifth Circuit 

will decide en banc in May, 1993, whether there has been a violation or not. The Plaintiffs’ 

actions on behalf of the Texas Attorney General can only be viewed as voluntary political 

activities which are entirely unrelated to the proof of their claims in this litigation. They would 

not be entitled to reimbursement for such expenses under any reading of § 1988. 

WHEREFORE, for the foregoing reasons, Defendant-Intervenor Harris County District 

Judge Sharolyn Wood respectfully requests that the Court dismiss plaintiffs’ Motion for Interim 

Attorneys’ Fees. 

 



  

OF COUNSEL: 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

Telephone: (713) 228-5101 
Facsimile: (713) 223-9133 

Respectfully submitted, 

PORTER & CLEMENTS, L.L.P. 

Co PYERT ne — 
4 1]. Eugene Clements 
eV Evelyn V. Keyes 

700 Louisiana, Ste. 3500 

P.O. Box 4744 

Houston, Texas 77210-4744 

Phone: (713) 226-0600 
Fax: (713) 228-1331 

  

ATTORNEYS FOR APPELLANT-INTERVENOR- 
DEFENDANT JUDGE SHAROLYN WOOD 

 



  

  

CERTIFICATE OF SERVICE 

) 

I hereby certify that on this 
5 Pi ‘day of March, 1993, a true and correct copy of the 

above and foregoing document has been mailed to all counsel of record by first class United 
States mail, postage prepaid, addressed as follows: 

William L. Garrett 

Garrett, Thompson & Chang 

8300 Douglas, Suite 800 

Dallas, Texas 75226 

Rolando Rios 

Southwest Voter Registration 

& Education Project 
201 N. St. Mary’s, Suite 521 
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 

301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

7630C:\DOCS\EVK\WO0027001\060 

Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Walter L. Irvin 

5787 South Hampton Road 
Suite 210, Lock Box 122 

Dallas, Texas 75232-2255 

Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

201 N. St. Mary’s #600 

San Antonio, Texas 78205 

Renea Hicks 

Special Assistant Attorney General 
P. O. Box 12548 
Capitol Station 

Austin, Texas 78711-2548 

Seagal V. Wheatley 

Oppenheimer, Rosenberg, Kelleher 
Wheatley, Inc. 

711 Navarro, Sixth Floor 

San Antonio, Texas 78205 

fod U1 fia lhn | (Lo 

& 

  

Evelyn V: Keyes” / 

 



TAN.11 ‘FO 10:34 TTS ‘P= NOLA pi >.201 

  

IN THE UNITED STATES COURT OF APPFRALE > CLURT OF APPEALS 
FOR THE FIFTH CIRCUIT FILED 

CO eh JAN 11 1999 
NO. 50-8014 GILBERT " GANUGHEAL 

NR EU CLERX 

LEAGUE CF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, 

Plaintiffs-Appallees, 

VS. 

WILLIAM P. CLEMENTS, ETC. ET AL., 

Defendants, 

JIM MATTOX, 

Defendants-Appellants. 

Appeals from the United States District Court ‘or the 
Northern District of Texas 

Before GEE, DAVIS and JONES, Circuit Judges. 

PER CURIAM: 

IT IS ORDERED that appellants’ motions for stay pending 

appeal are GRANTED. We do so in order that the Stata of Texas 

may be allowed a reasonable opportunity to 2z4dress the problem 

presented by the holding of the district court entared November 

8, 1989, that the state system of selecting judges is invalid as 

violating Section 2 of the Voting Rights Act. Scc <hisom v, 

Roemer, 853 F.2d 1186 (5th Cir. 1981). 

That holding, if sustained on appeal, will require an 

organic and wholesale review and reconstitution of the Texas 

judicial selection system, a task which should pe addressed and 

Es A) 4 Joffre " WE | Sh 
  

    
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carrliad cut by the state’s elected representatives, rather than 

Ey the fsderal courts, Only if it becomes apparent that the 

state ls unwilling to act with measured and appropriate speed in 

this regard should our courts intervene. When the State has had 

a reasonable period within which te address the prebilem presented 

in a special session of the Legislature, the Court will entertain 

a moticn ta dissolve. That has not yet occurred; when it does, 

we will be amenable to a motion to dissolve the stay which we 

anter today, In the meantine, on our own motion, we EXPEDITE and 

consolidate the appeals from the district CouTrt’s orders of 

November 8, 1989, and January 2, 1990.1 

It is further ORDERED that the motion of appellant Judge 

Sharolyn Wood, etc., for leave to consolidate this appeal with 

Case number 89-6226 is DENIED. Instead, on its own motion the 

court consolidates this appeal with case number 20-9003, 

It is further ORDERED that the motion of appellee Jim 

Mattox, etc., for leave to strike the notice of designation of 

independent counsel and the emergency application for stay filed 

on behalf of George S, Bayoud, Jr. is DENIED. 

  

L This appeal being founded on 28 U.S.C. 38 1292¢(a)(l) and 1292(b), we need not concern ourselves about the motion pending before the trial court (denominated a "Rule 59(e)" motion in certain of the filings) to modify that court’s interlocutory injunctive order. Rule 59 (e) has no application to interlocutory orders, and the notice of appeal vests jurisdicticn over this 
order in our court. See Coastal Corp. v. Texas Eastern Corp. 869 F.2&4 817 (Sth Cir. 1989).  



United States Court of Appeals 
FIFTH CIRCUIT 

OFFICE OF THE CLERK 

RICHARD E. WINDHORST, JR. TEL. 504-589-6514 
CLERK 600 CAMP STREET 

NEW ORLEANS, LA 79134 

February 11, 1993 

TO ALL COUNSEL OF RECORD 

90-8014 - LULAC v. Clements 

Dear Counsel: 

Enclosed is an order this day entered by the Court directing 
that this case be reheard en banc with oral argument. 

Under Fifth Circuit Local Rule 41.3 the effect of granting a 
rehearing en banc is to vacate the previous opinion and judgment 
of this Court and to stay the mandate. 

. If supplemental briefing is needed, the parties will be so 
notified at a later date. The case will be calendared for 
hearing during the week of May 24, 1993. Counsel for the parties 
will receive adequate notice as to the exact date and time for 
the presentation of the oral argument. 

All parties are requested to furnish twenty (20) copies of 
briefs on file, and Record Excerpts previously filed, for the use 
of the en banc court. 

  

Very truly yours, 

pet EY a 
ZKichard E. Windhorst, Jr. 

roi Clerk \ 

cc: Hon. Lucius D. Bunton, III 

REW, JR./]jmg 
Enclosure 

  

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