Supplement to Bayoud's Response to Motion to Strike

    IN THE UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

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

Plaintiffs-Appellees, 

Vv. "NO. 90-8014 

JIM MATTOX, et al., 

wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Defendants-Appellants. 

SUPPLEMENT TO BAYOUD’S RESPONSE TO MOTION TO STRIKE 
  

Defendant, Secretary of State, George S. Bayoud, Jr. 

("Bayoud"), files this Supplement to Bayoud’s Response to Motion 

to Strike, and would respectfully show the Court as follows: 

1. On or about January 5, 1990, Attorney General Mattox filed 

in this Court a Motion to Strike Defendant Bayoud’s Emergency 

Application for Stay and Notice of Designation of Outside Indepen- 

dent Counsel. 

2. On or about January 8, 1990, Defendant Bayoud filed its 

Response to Mr. Mattox’s Motion to Strike. 

3. As a supplement to his January 8, 1990 filing, Defendant 

Bayoud files his affidavit in support of Defendant Bayoud’s 

Response to Mattox’s Motion to Strike. A true and correct copy of 

that affidavit is attached hereto as Exhibit "A". 

4. Finally, Defendant-Appellant Bayoud takes issue with 

Appellant Mattox’s position in his Motion to Strike that the 

 



Secretary of State’s Notice of Appeal is ineffectual, given the 

pendency in the district court of Mr. Mattox’s motion to modify the 

January 2, 1990 Order. For the reasons stated in Judge Entz’s 

Response to Plaintiffs’ Motion to Dismiss and Mattox’s Motion to 

Strike, filed with this Court on or about January 9, 1990, 

Defendant-Appellant Bayoud’s Notice of Appeal is timely and effec- 

tive. 

Respectfully submitted, 

LIDDELL, SAPP, ZIVLEY, HILL 
& LABOON 

ow Jit 2 Die 
  

JO L.- Rill, Jr. 
2 te Bar No. 00000027 

dy Taylor 
State Bar No. 19727600 

3300 Texas Commerce Tower 
Houston, Texas 77002 

(713) 226-1200 

ATTORNEYS FOR GEORGE S. BAYOUD, 
JR., SECRETARY OF STATE OF TEXAS 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the foregoing 

Supplement to Bayoud’s Response to Motion to Strike has been served 

upon all counsel of record, by overnight federal express, on this 

[D day of January, 1990. 

pT A 2 
ohn L. Hill, ‘Jr. 
  

WAT\LULAC.9 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN ) 

CITIZENS (LULAC), et al, ) 

) 
Plaintiffs-Appellees, ) 

) No. 90-8014 
V. ) 

) 
JIM MATTOX, et al, ) 

) 
Defendants-Appellants. ) 

AFFIDAVIT 

STATE OF TEXAS § 
§ 

COUNTY OF TRAVIS § 

BEFORE ME, the undersigned authority, personally appeared 

George S. Bayoud, Jr., who, after being duly sworn, upon his 

oath stated and deposed as follows: 

My name is George S. Bayoud, Jr. I am the 
Texas Secretary of State, having been ap- 
pointed by Governor William P. Clements, Jr., 
confirmed by the Texas Senate, and taken the 
oath of office on June 19, 1989. I am a named 
party in the above styled and numbered cause. 

On or about Saturday, December 16, 1989, I 
learned from newspaper articles that the 
plaintiffs and the Attorney General had agreed 
to begin negotiations for an agreed settle- 
ment. Their first meeting was scheduled for 
Monday, December 18, 1989 according to the 
articles. I assumed that I would be briefed 
on the proposal and have an opportunity to 
comment or give direction to my attorney 
before an agreement would be reached. 

On Tuesday, December 19, Attorney General 
Mattox held a press conference and issued a 
news release stating that an interim plan 
would be presented to Judge Bunton because an 
agreement had been reached between plaintiffs 
and Mattox. According to the Mattox news 
release, the plan was reached after several 
days of negotiations between Mattox’s office 

EXHIBIT A 
 



  

p | . 

and the plaintiffs. 

I was not notified by Mattox of any proposals 
by the plaintiffs. I was not notified by 
Mattox of the finalized plan. I was not 
afforded an opportunity to make any input into 
any stage of the agreement process. 

On Tuesday, December 19, 1989, I issued a 
press release, the tenor of which refiected my 
beliefs that General Mattox was representing 
himself as a named defendant and was not 
representing me or the interests of my office. 
I specifically stated in the press release 
that Mattox should immediately prepare an 
appeal and request a stay. I noted in the 
press release that I had serious adminis- 
trative problems with the plan. I further 
indicated my belief that this was an issue 
which should be resolved by the Texas Legis- 
lature. 

On Thursday, December 21, 1989, I sent a 
letter to General Mattox formally requesting 
that he refrain from entering into any settle- 
ment or plan without my prior written consent. 
I reiterated to Mattox the serious adminis- 
trative problems I had with the plan. 

On Thursday, December 21, 1989 at 4:00 p.m., 
I received my first notification of the plan 
from Mattox’s office. This notification was 
fait accompli. It was a copy of the Proposed 
Interim Plan being submitted to the Court and 
signed by the plaintiffs and Jim Mattox as 
Attorney General of Texas. 

I assumed that Mattox, as my counsel, would 
represent my interests, as chief elections 
officer of the State of Texas. But Mattox had 
not responded to my request. He had not 
requested a stay; had not perfected an appeal; 
and in fact had not contacted my office con- 
cerning the proposed settlement at all at this 
time. Mattox had been informed by me of ny 
disagreement with the plan, of my belief that 
this issue should be resolved by the legis- 
lature, and of the administrative implemen- 
tation problems. 

The proposed plan was adopted, with modifi- 
cations, by the Court on Tuesday, January 2, 
1990. 

 



  

I called Renea Hicks, assistant Attorney 
General on Tuesday, January 2, 1990 to see 
whether Mattox intended to ask for a Stay. 
Hicks told me that he did not know. I told 
him I wanted a Stay. I told him of my belief 
that judicial selection was an issue for the 
Legislature and not for the Court to decide. 
I told him that it might be necessary to go to 
the United States Supreme Court if necessary 
to assure this outcome. 

I then directed my staff to discuss with the 
Attorney General’s Office whether Mattox 
intended to request a Stay. I also instructed 
them to consult with the Attorney General’s 
office about the administrative problems if a 
Stay was not received. The staff met with the 
Attorney General’s staff on Wednesday, January 
3, 1990. My staff informed me that Hicks 
still did not know whether a Stay would be 
requested but rather wanted to discuss modifi- 
cation of the prior order. The staff told me 
that they specifically emphasized the urgent 
need to obtain a stay before a "point of no 
return" was reached in the electoral process. 
I was informed that January 12, 1990 was 
established as the "point of no return" date. 
It is on that date--60 days before the March 
13th Primary Eliection--that the state politi- 
cal party executive committee must certify to 
the Secretary of State’s office the candidates 
for the primary ballot. 

I spoke with Renea Hicks on the morning of 
Thursday, January 4, 1990. I again asked 
whether Mattox was going to ask for a Stay. 
Hicks said that he didn’t know but that he had 
been instructed by Mattox to prepare a motion 
to seek modification of the January 2, 1990 
Order. I instructed Hicks, in no uncertain 
terms, to go to Mattox and ask whether he 
would abide by my instructions to immediately 
request a Stay. I told him that "I wanted to 
know before Mattox’s press conference. I 
didn’t want to learn about his decision by 
reading it in the newspaper." I reminded 
Hicks that I was his client and that I was a 
constitutional officer just like the Attorney 
General and that I expected to be treated like 
a client and a fellow constitutional officer. 
I told Hicks that this was not the right way 
to "run a railroad." I told Hicks that I 
would get outside counsel at no cost to the 
state if I did not hear from him. I did not 

 



hear further from Hicks. 

At noon on Thursday, January 4, 1990, I had a 
letter delivered to Mattox in which I in- 
structed him to immediately file a motion for 
a Stay. I told him I needed his immediate 
response in the event that he would not abide 
by my instructions, so that I could seek 
independent counsel at no cost to the state. 

At 1:30 p.m. on Thursday, January 4, 1990, 
Mattox held a press conference to announce 
that he was seeking modification of the 
Court’s January 2nd Order, with respect to the 
issue of non-partisan elections only. My 
staff reported to me that during Mattox’s 
press conference, in response to a specific 
question concerning my hiring independent 
counsel, Mattox stated: "If he wants to hire 
a lawyer with his own money that’s fine with 
me. "1 don’t care." 

It appeared, by Mattox’s failure to respond to 
my requests and by his remarks at his press 
conference that he did not intend to im- 
mediately request a stay. 

Because of Mattox’s refusal to notify me of 

his intentions regarding my representation: 
because of Mattox’s refusal to respond to my 
instruction to seek an immediate Stay; because 

of my exclusion from the negotiation process: 
because of my opposition to the plan Mattox 
presented to the Court; because of Mattox’s 
statements at his press conference; because I 
lost confidence in Mattox as my attorney in 
this matter; and because time is of the es- 
sence in this case, I hand delivered to Attor- 
ney General Mattox a letter informing him that 
I was engaging outside counsel, at no cost to 
the state. 

As of this date, I have had no response from 
General Mattox regarding my request for a stay 
or any other instruction to him as my counsel. 

In conclusion, I want to go on record as 
saying I wholeheartedly support fair and equal 
judicial selection. Furthermore, I am an 
advocate of judicial election reform, specifi- 
cally changes that would lead to much needed 
minority representation across the state. 

However, the issues involved in this lawsuit  



w | ® 

  

have not been reviewed by the complete judi- 
cial process. It has not gone to the United 
States Supreme Court. The issues are too 
important to lend themselves to interim, 
"band-aid" solutions, such as the ones offered 
by the plaintiffs and Attorney General Mattox. 

Under Texas law, my office has the respon- 
sibility of registering eligible voters and 
enhancing and protecting the right of every 
Texan to vote. Attorney General Mattox’s 
plan, on its face, could disenfranchise thou- 
sands of voters. For example, in Midland, 
Ector and Lubbock Counties, voters in certain 
precincts would be unable to vote for any 
candidate for district judge during this 
election. 

Because I believe implementation of these 
proposed interim plans would be both totally 
disruptive to the Texas judiciary and the 
entire Texas state election process, it is 
incumbent upon me as the state’s chief elec- 
tions officer to do everything in my power to 
seek a stay so that the Texas Legislature may 
have an opportunity to address this problem. 

Ger ¢ 1%) Bayoud . 
: xas \Seeretary tate 

Sy TO AND SUBSCRIBED BEFORE ME, the undersigned authority 

on this day of January, 1990, to certify which witness my hand 
and seal of office. 

  

ren A- Yaeger 

iin) Y) Choe apne 

Notary Public ih and for 
the STATE OF TEXAS 

Printed Name: 7\¢rén A. (fgeqen 
My Commission Expires: 2 /3/%7¢ 

  

  

JXH/LULAC. 6 

 



  

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN § 

CITIZENS (LULAC), et al., § 

Plaintiffs, : 

V. : NO. 88-CA-154 

JIM MATTOX, et al., : 

Defendants. ; 

SUPPLEMENT TO BAYOUD’S RESPONSE TO MOTION TO STRIKE 
  

Defendant, Secretary of State, George S. Bayoud, Jr. 

("Bayoud"), files this Supplement to Bayoud’s Response to Motion 

to Strike, and would respectfully show the Court as follows: 

1. On or about January 5, 1990, Attorney General Mattox filed 

with this Court a Motion to Strike Defendant Bayoud’s Notice of 

Appeal and Notice of Designation of Outside Independent Counsel. | 

2. On or about January 8, 1990, Defendant Bayoud filed its 

Response to Mr. Mattox’s Motion to Strike. 

3. As a supplement to his January 8, 1990 filing, Defendant 

Bayoud files his affidavit in support of Defendant Bayoud’s 

Response to Mattox’s Motion to Strike. A true and correct copy of 

that affidavit is attached hereto as Exhibit "a". 

 



  

WHEREFORE, PREMISES CONSIDERED, Defendant Bayoud respectfully 

requests this Court deny Mr. Mattox’s Motion to Strike. 

Respectfully submitted, 

LIDDELL, SAPP, ZIVLEY, HILL 

& LABOON 

Lr at 
ohn L. Hill, Jr. Y 

State Bar No. 00000027 

Andy Taylor 
State Bar No. 19727600 

3300 Texas Commerce Tower 

Houston, Texas 77002 

(713) 226-1200 

  

ATTORNEYS FOR GEORGE S. BAYOUD, 

JR., SECRETARY OF STATE OF TEXAS 

CERTIFICATE OF SERVICE 

  

I hereby certify that a true and correct copy of the foregoing 

document has been served upon all counsel of record, by overnight 

federal express, on this [0 day of January, 1990« 

SZ Law iL 
(7 L. Hill, dfs, + 7 
  

WAT\LULAC. 8 

 



  

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

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

Plaintiffs, : 

Vv. : NO. 88-CA-154 

JIM MATTOX, et al., : 

Defendants. : 

AFFIDAVIT 

STATE OF TEXAS § 

COUNTY OF TRAVIS : 

BEFORE ME, the undersigned authority, personally appeared 

George S. Bayoud, Jr., who, after being duly sworn, upon his 

oath stated and deposed as follows: 

My name is George S. Bayoud, Jr. I am the 
Texas Secretary of State, having been ap- 
pointed by Governor William P. Clements, Jr., 
confirmed by the Texas Senate, and taken the 
oath of office on June 19, 1989. I am a named 
party in the above styled and numbered cause. 

On or about Saturday, December 16, 1989, I 
learned from newspaper articles that the 
plaintiffs and the Attorney General had agreed 
to begin negotiations for an agreed settle- 
ment. Their first meeting was scheduled for 
Monday, December 18, 1989 according to the 
articles. I assumed that I would be briefed 

BE EXH L J} J L } J 

 



on the proposal and have an opportunity to 
comment or give direction to my attorney 
before an agreement would be reached. 

On Tuesday, December 19, Attorney General 
Mattox held a press conference and issued a 
news release stating that an interim plan 
would be presented to Judge Bunton because an 
agreement had been reached between plaintiffs 
and Mattox. According to the Mattox news 
release, the plan was reached after several 
days of negotiations between Mattox’s office 
and the plaintiffs. 

I was not notified by Mattox of any proposals 
by the plaintiffs. I was not notified by 
Mattox of the finalized plan. I was not 
afforded an opportunity to make any input into 
any stage of the agreement process. 

On Tuesday, December 19, 1989, I issued a 
press release, the tenor of which reflected my 
beliefs that General Mattox was representing 
himself as a named defendant and was not 
representing me or the interests of my office. 
I specifically stated in the press release 
that Mattox should immediately prepare an 
appeal and request a stay. I noted in the 
press release that I had serious adminis- 
trative problems with the plan. I further 
indicated my belief that this was an issue 
which should be resolved by the Texas Legis- 
lature. 

On Thursday, December 21, 1989, I sent a 
letter to General Mattox formally requesting 
that he refrain from entering into any settle- 
ment or plan without my prior written consent. 
I reiterated to Mattox the serious adminis- 
trative problems I had with the plan. 

On Thursday, December 21, 1989 at 4:00 p.m., 
I received my first notification of the plan 
from Mattox’s office. This notification was 
fait accompli. It was a copy of the Proposed 
Interim Plan being submitted to the Court and 

-  



signed by the plaintiffs and Jim Mattox as 

Attorney General of Texas. 

I assumed that Mattox, as my counsel, would 

represent my interests, as chief elections 

officer of the State of Texas. But Mattox had 

not responded to my request. He had not 

requested a stay; had not perfected an appeal; 

and in fact had not contacted my office con- 

cerning the proposed settlement at all at this 

time. Mattox had been informed by me of my 

disagreement with the plan, of my belief that 

this issue should be resolved by the legis- 

lature, and of the administrative implemen- 

tation problens. 

The proposed plan was adopted, with modifi- 

cations, by the Court on Tuesday, January 2, 

1990. 

I called Renea Hicks, assistant Attorney 

General on Tuesday, January 2, 1990 to see 

whether Mattox intended to ask for a Stay. 

Hicks told me that he did not know. I told 

him I wanted a Stay. I told him of my belief 
that judicial selection was an issue for the 

Legislature and not for the Court to decide. 

I told him that it might be necessary to go to 

the United States Supreme Court if necessary 
to assure this outcome. 

I then directed my staff to discuss with the 
Attorney General’s Office whether Mattox 
intended to request a Stay. I also instructed 
them to consult with the Attorney General's 
office about the administrative problems if a 
Stay was not received. The staff met with the 
Attorney General’s staff on Wednesday, January 
3, 1990. My staff informed me that Hicks 
still did not know whether a Stay would be 
requested but rather wanted to discuss modifi- 
cation of the prior order. The staff told me 
that they specifically emphasized the urgent 
need to obtain a stay before a "point of no 
return" was reached in the electoral process. 
I was informed that January 12, 1990 was 

-3-  



  

established as the "point of no return" date. 
It is on that date--60 days before the March 

13th Primary Election--that the state politi- 

cal party executive committee must certify to 

the Secretary of State’s office the candidates 

for the primary ballot. 

I spoke with Renea Hicks on the morning of 

Thursday, January 4, 1990. I again asked 

whether Mattox was going to ask for a Stay. 

Hicks said that he didn’t know but that he had 

been instructed by Mattox to prepare a motion 

to seek modification of the January 2, 1990 
Order. I instructed Hicks, in no uncertain 
terms, to go to Mattox and ask whether he 

would abide by my instructions to immediately 
request a Stay. I told him that "I wanted to 
know before Mattox’s press conference. I 

didn’t want to learn about his decision by 
reading it in the newspaper." I reminded 

Hicks that I was his client and that I was a 
constitutional officer just like the Attorney 
General and that I expected to be treated like 
a client and a fellow constitutional officer. 
I told Hicks that this was not the right way 
to "run a railroad." I told Hicks that I 
would get outside counsel at no cost to the 
state if I did not hear from him. I did not 
hear further from Hicks. 

At noon on Thursday, January 4, 1990, I had a 
letter delivered to Mattox in which I in- 
structed him to immediately file a motion for 
a Stay. I told him I needed his immediate 
response in the event that he would not abide 
by my instructions, so that I could seek 
independent counsel at no cost to the state. 

At 1:30 p.m. on Thursday, January 4, 1990, 
Mattox held a press conference to announce 
that he was seeking modification of the 
Court’s January 2nd Order, with respect to the 
issue of non-partisan elections only. My 
staff reported to me that during Mattox’s 
press conference, in response to a specific 
question concerning my hiring independent 

-—l —- 

 



  

counsel, Mattox stated: "If he wants to hire 

a lawyer with his own money that’s fine with 

me. I don’t care." 

It appeared, by Mattox’s failure to respond to 

my requests and by his remarks at his press 

conference that he did not intend to im- 

mediately request a stay. 

Because of Mattox’s refusal to notify me of 

his intentions regarding my representation; 

because of Mattox’s refusal to respond to my 

instruction to seek an immediate Stay; because 

of my exclusion from the negotiation process; 

because of my opposition to the plan Mattox 

presented to the Court; because of Mattox’s 

statements at his press conference; because 1 

lost confidence in Mattox as my attorney in 

this matter; and because time is of the es- 

sence in this case, I hand delivered to Attor- 

ney General Mattox a letter informing him that 
I was engaging outside counsel, at no cost to 

the state. 

As of this date, I have had no response from 
General Mattox regarding my request for a stay 
or any other instruction to him as my counsel. 

In conclusion, I want to go on record as 
saying I wholeheartedly support fair and equal 
judicial selection. Furthermore, I am an 
advocate of judicial election reform, specifi- 
cally changes that would lead to much needed 
minority representation across the state. 

However, the issues involved in this lawsuit 
have not been reviewed by the complete judi- 
cial process. It has not gone to the United 
States Supreme Court. The issues are too 
important to lend themselves to interim, 
"band-aid" solutions, such as the ones offered 
by the plaintiffs and Attorney General Mattox. 

Under Texas law, my office has the respon- 
sibility of registering eligible voters and 
enhancing and protecting the right of every 

-—5 

 



  

Texan to vote. Attorney General Mattox’s 

plan, on its face, could disenfranchise thou- 

sands of voters. For example, in Midland, 

Ector and Lubbock Counties, voters in certain 

precincts would be unable to vote for any 

candidate for district judge during this 

election. 

Because I believe implementation of these 

proposed interim plans would be both totally 

disruptive to the Texas judiciary and the 

entire Texas state election process, it is 

incumbent upon me as the state’s chief elec- 

tions officer to do everything in my power to 

seek a stay so that the Texas Legislature may 

have an opportunity to address this problem. 

gs Penn J 
GeoXyge 3{) Sayoud, Tele \ 
Texas Secretary of \State 

  

SW TO AND SUBSCRIBED BEFORE ME, the undersigned authority ORN 

on this HC day of January, 1990, to certify which witness my hand 

and seal of office. 

nin) A. UYaeae 
Notary Public in//and for the 
STATE OF TEXAS 

Printed Name: 7|arn A- (aegen 

My Commission Expires: ®/90 

  

  

WAT\LULAC.5