Motion to Certify State Law Question or, Alternatively, to Disqualify Counsel

    Tir ATTORIYEY 4a ERAL 
OF TEXAS 

January 24, 1990 
AIM MATTOX 

ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
Gilbert Ganucheau, Clerk 

Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC v. Mattox, No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced matter are the 
original and three copies of a Motion to Certify State Law Question or, 
Alternatively, to Disqualify Counsel. 

Re 

or dil 
enea Ce 

Special Assistant Attorney General 

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

cc: Counsel of Record 

>1=2/163=2100 SUPREME COURT BUILDING AUSTIN, TEXAN T8711-235.08  



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. Co

n 
on
 

Go
n 

Co
n 

Go
n 

on
 

Ao
n 

Un
 

MOTION TO CERTIFY STATE LAW QUESTION OR, ALTERNATIVELY, 
TO DISQUALIFY COUNSEL 

The Attorney General of Texas, on behalf of the State of Texas, 

hereby moves for an order certifying to the Supreme Court of Texas 

the question of law stated in Part II, below, pursuant to the procedures 

set forth in Rule 114 of the Texas Rules of Appellate Procedure under 

the authority granted by TEX.CONST. art. V, § 3-c(a). 

PART I -- DISQUALIFICATION 
  

The Attorney General only reluctantly seeks certification. A 

member of the panel in this case which on January 11th denied the 

January 7th motion to strike was the author in another case of an 

opinion which explicitly accepted the proposition urged in the motion 

to strike -- that is, that the Attorney General has the exclusive right 

under state law to represent state agencies. See United States v. 

Texas, 680 F.2d 356, 368 n.16 (5th Cir. 1982). Given that holding, 

the Attorney General admittedly is puzzled about the basis for the 

Court's unexplained rejection of the earlier motion asking that this 

very same proposition be applied here. Perhaps the problem is 

nothing more than giving an inappropriate title to the motion, or 

Na
 \
¥ 

oy
 

 



  

asking that the pleadings be struck rather than the appearance of the 

attorneys which filed them. Therefore, alternatively, the Attorney 

General urges the Court to construe this motion as a motion to 

disqualify John L. Hill and Andy Taylor as the attorneys of record for 

the Secretary of State of Texas for the reasons stated in the Motion to 

Strike filed on January 7, 1990, and in the Attorney General's Reply to 

the Response of the Independent Counsel filed on January 11, 1990. 

Messrs. Hill and Taylor formally entered their appearance of counsel 

for the Secretary of State on January 23, 1990, in an unsigned Form 

for Appearance of Counsel. The remainder of this motion assumes 

that, for indecipherable reasons, the application of the holding in 

United States v. Texas, supra, is inapplicable in this case, 

notwithstanding the fact that the real appellant here is the State of 

Texas, not its Secretary of State or the other official-capacity 

appellants, see, e.g., Will v. Michigan Department of State Police, 109 

S.Ct. 2304, 2311 (1989) (official-capacity suit against state official is 

suit against the office, not the person, and, therefore, is equivalent to 

suit against the state itself). 

PART II -- CERTIFICATION 

The question of state law is as follows: 

Does the authority to represent the Secretary 
of State of Texas in a federal court proceeding 
in which he is a party in his official capacity 
only rest with: (a) the Attorney General of 
Texas; or (b) a private attorney acting without 
the Attorney General's permission? 

The foregoing question is of fundamental underlying significance 

in this appeal. By necessity, its resolution must precede disposition of 

the case because only authorized attorneys may appear and raise issues 

oy. 

 



  

on behalf of a party. Cf. Dorey v. Dorey, 609 F.2d 1128, 1131 n.5 (5th 

Cir. 1980) (acknowledging existence of support for the view that "a 

party is not bound by the appearance of an unauthorized attorney"). 

Two attorneys -- the Attorney General of Texas and a private attorney - 

- have entered appearances on behalf of the Secretary of State of 

Texas.” The Court must definitively settle who is authorized to 

represent that office before briefing on the merits can begin. Failure 

to do so raises the specter of procedural confusion which can 

irreparably harm the state's presentation of its case on the merits to 

this Court. As only one example, given the fact that the Supreme 

Court repeatedly has made clear that official-capacity suits against 

state officials are suits against the state itself, permitting the 

appearance of two attorneys for the Secretary of State here means the 

state has the option of submitting two briefs, presenting two oral 

arguments, and filing two petitions for a writ of certiorari. If the Court 

anticipates prohibiting such doubling-up by the state, then it must 

choose which of the two attorneys gets to submit the brief and make 

the argument -- for it is certain the two attorneys will not be able to 

work the matter out between themselves. After all, the Attorney 

General cannot simply acquiesce in the unilateral usurpation of his 

state constitutional authority by a private attorney, especially in a case 

which on its merits raises matters of such gravity to the state. Given 

  

* 

The private attorney attempting to appear on the Secretary of State's behalf has 
never directly stated that he is attempting to appear for that state official in his official 
capacity, but it must be assumed that he is trying to do precisely that because the 
Secretary of State is not and never has been a party in his personal capacity. If it 
eventuates that the private attorney is attempting to appear for the Secretary of State in 
his personal capacity, then the appearance could only be on behalf of the Secretary of 
State as an amicus curiae. The Attorney General has no objection to such an 
appearance if it is clearly delineated as such. 

3. 

 



  

that the Court already has decided to expedite this appeal, this matter 

must be addressed immediately, not later. 

The question of authority to represent the State of Texas and its 

officials before this Court is a question of state law. "The allocation of 

authority among state officers to represent the State . . . is, of course, 

wholly a matter of state concern." New York v. Uplinger, 467 U.S. 

246, 247-48 n.1 (1984). That state law, to the extent binding 

precedent in this Court does not already clearly settle to the invalidity 

of the private attorney's appearance here, see Part I, supra, can only be 

ascertained by certifying this matter to the Supreme Court of Texas to 

settle the matter expeditiously. 

CONCLUSION 

It is simply inconceivable that there is any legal basis for the 

question of authority presented here to continue under its present 

status, with neither an explanation of why nor an opportunity for the 

Supreme Court of Texas to definitively settle what had appeared to be 

an already definitively settled matter of state law as explicated by prior 

opinions of this Court. The duly elected Attorney General of a state is 

entitled to know the legal basis for a private attorney's being 

permitted to usurp the state official's constitutional authority. At the 

very least, he is entitled to present such a fundamental question of the 

allocation of state constitutional authority to the court that can best 

settle the issue -- the Supreme Court of Texas. Granting this motion 

will afford the opportunity to Texas's highest court to determine for 

this important case who has the authority under the state's 

fundamental law to represent the state. 

 



Respectfully submitted, 

  

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Fite. Bole 
HICKS 

Special Assistant Attorney General 

  

  

JAVIER GUAJARDO 
Assistant Attorney General 

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

CERTIFICATE OF SERVICE ££ 

I certify that on this 24th day of January, 1990, I sent a copy of 
the foregoing document by first class United States mail, postage 
prepaid (or overnight courier if indicated by *) to each of the i 
following: William L. Garrett, Garrett, Thompson & Chang, 8300 
Douglas, Suite 800, Dallas, Texas 75225; 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; J. Eugene 
Clements, Porter & Clements, 700 Louisiana, Suite 3500, Houston, 
Texas 77002-2730; Robert H. Mow, Jr., Hughes & Luce, 2800 
Momentum Place, 1717 Main Street, Dallas, Texas 75201; John L. 
Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002*; and Seagal V. Wheatley, 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, 
Sixth Floor, San Antonio, Texas 782 

—~ os Heel, 
  

Renea Hicks