Chief Justice Phillips' Motion for Allocation of Time for Oral Argument; Response to Motion to Disqualify

    JAMAIL & KOLIUS 

ATTORNEYS AT LAW 

ONE ALLEN CENTER 
JOSEPH D. JAMAIL DAHR JAMAIL 

500 DALLAS STREET SUITE 3434 
GUS KOLIUS A ITE 

DAVID J. BEBOUT HOUSTON, TEXAS 77002-4793 

JANET PIGNATARO EVANS (713) 651-3000 NAT B. KING 

FRANK M. STAGGS, JR. COUNSEL 

FAX (713) 651-1987 

April 21, 1993 

Hon. Gilbert F. Ganucheau BY FEDERAI EXPRESS 
Clerk, U.S. Court of Appeals 
For the Fifth Circuit 
109 U. S. Court of Appeals Courthouse 
600 Camp Street 
New Orleans, Louisiana 70130 

  

Re: League of United Latin American Citizens, et al., Plaintiffs-Appellees, v. 
Attorney General of Texas, et al., Defendants-Appellants; Cause No. 90-8014 
in the United States Court of Appeals for the Fifth Circuit. 

Dear Mr. Ganucheau: 

Enclosed for filing is an original and eight copies of Chief Justice Thomas R. 
Phillips’ Motion for Allocation of Time for Oral Argument. 

Please file-stamp the additional copy of this pleading with the clerk’s stamp 
showing date and time of filing, and return same to us in the envelope enclosed. 

All counsel of record have been provided a copy of this pleading. 

Thank you for your attention to this matter. 

Yougs very tr 

M. Green 
gal Assistant 

-Jmg 
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CC: All counsel of record 

Chief Justice Thomas R. Phillips 

 



    

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, er al., 

Plaintiff-Appellees, 

VS. NO. 90-8014 

ATTORNEY GENERAL 
OF TEXAS, et al., 

Defendants-Appellants. LO
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CHIEF JUSTICE THOMAS R. PHILLIPS’ MOTION 
FOR ALLOCATION OF TIME FOR ORAL ARGUMENT 
  

  

TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE FIFTH 
CIRCUIT: 

NOW COMES Defendant Chief Justice Thomas R. Phillips filing this Motion for 

Allocation of Time for Oral Argument, and would respectfully show the Court as follows: 

Due to the adversarial nature of the relationship that has developed between 

Chief Justice Phillips and the Attorney General of the State of Texas, Chief Justice 

Phillips has found it necessarily to designate independent counsel, Joseph D. Jamail, to 

represent him in this cause. Although Chief Justice Phillips is a defendant in this lawsuit 

by designation, the legal position advocated by the Attorney General on behalf of the 

group of defendants that he represents is not consistent with the position of Chief Justice 

Phillips in this case. Consequently, unless Chief Justice Phillips is allowed a brief time to 

argue his position in this case--fifteen minutes--his position in this cause will go unheard. 

Chief Justice Phillips has no intention nor desire to belabor the Court with arguments 

advanced by any other party. Rather, Chief Justice Phillips intends to present to the 

Court argument unique to his position and necessary to a just resolution of this case. 

WHEREFORE, PREMISES CONSIDERED, Defendant Chief Justice 

Thomas R. Phillips respectfully requests the Court to allocate to him fifteen minutes of 

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time for oral argument in this cause in the interest that all relevant information be 

brought to the Court’s attention and so that justice may be done. 

Respectfully submitted, 

  

Jamail & Kolius 

500 Dallas Street, Suite 3434 
Houston, Texas 77002-4793 
(713) 651-3000 
Telecopy: (713) 651-1957 

INDEPENDENT COUNSEL FOR 
DEFENDANT THOMAS R. 
PHILLIPS, CHIEF JUSTICE OF THE 
SUPREME COURT OF TEXAS AND 
CHAIRMAN OF THE JUDICIAL 
DISTRICTS BOARD 

CERTIFICATE OF SERVICE 
  

I certify that on the 21st day of April, 1993, I sent a copy of the foregoing 
document by first class United States Mail, Return Receipt Requested, postage prepaid, 
to each of the following: 

Hon. Dan Morales 
Attorney General 
Price Daniel, Sr. Building 
Austin, Texas 78701 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas 
Suite 800 
Dallas, Texas 75225 

Ms. Cherrilyn A. Ifill 
NAACP Legal Defense & Educational 
Fund, Inc. 
99 Hudson Street, 17th Floor 
New York, New York 10013 

\lulac\1352 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
1717 Main Street 

Suite 2800 

Dallas, Texas 75201 

Ms. Seagal W. Wheatly 
Wheatly & Sharpe 
Suite 1650, Frost Bank Tower 
100 West Houston 
San Antonio, Texas 78205 

Mr. E. Brice Cunningham 
777 South R. L. Thornton Frway. 
Suite 121 
Dallas, Texas 75203 

 



  

Mr. Rolando Rios 

Suite 1024, Milam Building 

115 E. Travis Street 

San Antonio, Texas 78205 

Ms. Gabrielle K. McDonald 
7800 N. Mopac 
Suite 215 
Austin, Texas 78750 

Mr. Edward B. Cloutman, III 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 

3500 NCNB Center 
P. O. Box 4744 
Houston, Texas 77210-4744 

\lulac\1352 

  

Ms. Jessica Dunsay Silver 
Department of Justice 
P. O. Box 66078 
Washington, D.C. 20035-6078 

Mr. Tom Maness 
Jefferson County Courthouse 
Beaumont, Texas 77701 

Russell W. Miller 

3300 Texas Commerce Tower 

Houston, Texas 77002 

   



    
JAMAIL & KOLIUS 

ATTORNEYS AT LAW 

ONE ALLEN CENTER 
JOSEPH D. JAMAIL DAHR JAMAIL 
GUS KOLIUS 500 DALLAS STREET SUITE 3434 

DAVID J. BEBOUT HOUSTON, TEXAS 77002-4793 

JANET PIGNATARO EVANS (713) 651-3000 NAT B. KING 

FRANK M. STAGGS, JR. COUNSEL 

FAX (713) 651-1957 

April 2], 1993 

Hon. Gilbert F. Ganucheau BY FEDERAL EXPRESS 
Clerk, U.S. Court of Appeals 
For the Fifth Circuit 
109 U. S. Court of Appeals Courthouse 
600 Camp Street 
New Orleans, Louisiana 70130 

  

Re: League of United Latin American Citizens, et al., Plaintiffs-Appellees, v. 
Attorney General of Texas, et al., Defendants-Appellants; Cause No. 90-8014 
in the United States Court of Appeals for the Fifth Circuit. 

Dear Mr. Ganucheau: 

Enclosed for filing is an original and eight copies of Chief Justice Thomas R. 
Phillips’ Response to Motion to Disqualify. 

Please file-stamp the additional copy of this pleading with the clerk’s stamp 
showing date and time of filing, and return same to us in the envelope enclosed. 

All counsel of record have been provided a copy of this pleading. 

Thank you for your attention to this matter. 

Yours very al 

nd M. Green 
gal Assistant    

-Jmg 
\lulac\1355 

ce All counsel of record 

Chief Justice Thomas R. Phillips 

 



  

   

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiff-Appellees, 

VS. NO. 90-8014 

ATTORNEY GENERAL 
OF TEXAS, et al., 

Defendants-Appellants. On
 

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CHIEF JUSTICE THOMAS R. PHILLIPS’ 
RESPONSE TO MOTION TO DISQUALIFY 
  

  

TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE FIFTH 
CIRCUIT: 

NOW COMES Defendant Chief Justice Thomas R. Phillips filing this Response to 

Motion to Disqualify, and would respectfully show the Court as follows: 

i On or about March 26, 1993, the Attorney General of Texas filed a 

document in this cause entitled Notice of Action Toward Resolution of Appeal, attaching 

a copy of a "Settlement Agreement." The Notice stated that, "[w]hen effectuated, the 

Agreement will resolve the merits [of the] issues pending before the Court . . . ." This 

statement and the Attorney General’s attempt to "settle" this litigation in the manner set 

forth in the Settlement Agreement is the reason Chief Justice Phillips is compelled to 

seek representation by independent counsel. 

z The Settlement Agreement is signed by Plaintiffs, the Attorney General, 

the Governor of Texas, the Lieutenant Governor, the Speaker of the House of 

Representatives, and the Secretary of State; and declares that it is between the Plaintiffs, 

Plaintiff-Intervenors, and the State of Texas. Absent from the Settlement Agreement, 

however, are all named defendants except the Attorney General himself and the 

Secretary of State, including Chief Justice Phillips. The Settlement Agreement purports 

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to settle this litigation by having the State of Texas including all of its agencies and 

political subdivisions agree to "eliminate the existing at-large system of electing district 

judges” in nine of Texas’ most populace counties. The crux of Chief Justice Phillips’ 

objection to this Settlement Agreement and his need to obtain independent counsel to 

voice this objection is that the Settlement Agreement is unconstitutional under the 

Constitution of the State of Texas, is consequently invalid, and is not a measure that may 

properly be adopted by this Court. 

This Agreement is Unconstitutional 
  

3, The proposed Settlement Agreement very clearly sets out its purpose of 

abolishing the at-large judicial election system within the largest Texas judicial districts in 

favor of single member subdistrict. In contrast, the Texas Constitution clearly sets out 

that: 

1) the State shall be divided into judicial district; 

2) no judicial district shall be smaller than the size of an entire county without 
a general election adopting such a proposal; and 

3) each district judge shall be elected by the qualified voters within the judicial 
district. 

Tex. Const. Art. 5 §8 7 and 7a(i).! The proposed Settlement Agreement is inconsistent 

  

! Section 7 states: "The State shall be divided into judicial districts, 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 . . . ." Tex. Const. Art. 5 § 7. Section 7a(i) states: "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 in this section. Judicial districts smaller in size than the entire county 
may be created subsequent to a general election where a majority of the persons voting 
on the proposition adopt the proposition to allow the division of 
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 

  

  

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with Sections 7 and 7a. The Texas Constitution plainly mandates that district judges be 

elected based on a vote of qualified voters from judicial districts no smaller than an 

entire county absent a general election to that effect. Id. The proposed Settlement 

Agreement seeks to change the at-large constitutional structure to a single-member 

subdistrict structure without a general election and without a constitutional amendment. 

Such an agreement is beyond the power of the Attorney General to make on behalf of 

the State of Texas or any State entity such as the Judicial Districts Board (the "Board"). 

It is also beyond the power of a court to adopt, absent a finding that the agreement is 

valid (i.e. constitutional) as well as fair, adequate, and reasonable. Overton v. City of 

Austin, 748 F.2d 941, 952 (5th Cir. 1984); Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 

1991). 

4. In an apparent effort to skirt this constitutional impediment, the drafters of 

the proposed Settlement Agreement added the following language: 

Consistent with Art. 5 of the Texas Constitution, this Agreement will not 
disturb the existing district lines of the present judicial districts, except to 
the extent that it creates electoral subdistricts within the aforementioned 
counties for the purposes of electing district judges only. 

Settlement Agreement, q 6. This appears to be an attempt to lay the groundwork to 

argue that “judicial districts” in Texas will not change, but there will simply be new 

" "subdistricts.” Such semantic gamesmanship cannot, however, gloss over the fact that the 

Texas Constitution expressly provides that a district judge may be elected by the qualified 

voters of the judicial district, which may be no smaller than county size. The proposed 

Settlement Agreement would plainly create a new set of districts--be they "judicial 

districts” or "subdistricts"--which are smaller than county size from which district judges 

  

voters of any county." Tex. Const. Art. 5 § 7a(i). 

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will be elected, without complying with the constitutionally mandated methods for 

accomplishing such a change. 

The Validity of the Settlement Agreement is Subject to the Court’s Review 
  

5. Stated simply, neither the Attorney General nor any other state official 

may settle this litigation against the State of Texas or an official-capacity defendant by 

agreeing to a result that violates the Texas Constitution. United States v. City of Miami, 

664 F.2d 435 (5th Cir. 1981) (en banc); Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 

1991). This court has stated: 

Because the consent decree does not merely validate a compromise but, by 
virtue of its injunctive provisions, reaches into the future and has 
continuing effect, its terms require more careful scrutiny. Even when it 
affects only the parties, the court should, therefore, examine it carefully to 
ascertain not only that it is a fair settlement but also that it does not put 
the court’s sanction on and power behind a decree that violates 
Constitution, statute, or jurisprudence. This requires a determination that 
the proposal represents a reasonable factual and legal determination based 
on the facts of record, whether established by evidence, affidavit, or 
stipulation. If the decree also affects third parties, the court must be 
satisfied that the effect on them is neither unreasonable nor proscribed. 

United States v. City of Miami. 664 F.2d 435, 441 (5th Cir. 1981) (en banc); see also 

Overton v. City of Austin, 748 F.2d 941, 952 (5th Cir. 1984). Chief Justice Phillips’ 

designation of independent counsel does not simply raise the issue of "who should be the 

spokesperson for the State of Texas" in litigation. Rather, his designation of 

independent counsel is premised on the notion that the Attorney General is acting or 

attempting to act in a manner inconsistent with the State Constitution and with both his 

duties and the duties of the state officials he represents. Therefore, it is acceptable, 

even necessary, for those state officials who do recognize this constitutional violation to 

voice their objection, bring the issue to the Court’s attention, and advocate the proper 

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course. The effective pursuit of these goals requires independent counsel, so that Chief 

Justice Phillips may be fully and fairly heard by this honorable Court. 

Chief Justice Phillips Should be Allowed Independent Counsel 
  

6. Chief Justice Phillips should not be compelled to accept the representation 

of the Attorney General in this case because the Attorney General has agreed to and is 

advocating a settlement that is unconstitutional on its face and requires state officials 

such as Chief Justice Phillips to acquiesce to the unconstitutional plan. Regardless of the 

authority the Attorney General may ordinarily have to represent state agencies and 

officials, such officials must be allowed to employ counsel that will represent and 

advocate their interests in complying with their constitutional duties. 

2. A state official cannot be compelled to perform unconstitutional acts, and 

has the right to challenge the constitutionality of such acts. Delta County Levee 

Improvement Dist. No. 2 v. Leonard, 559 S.W.2d 387, 391 (Tex. Civ. App.--Texarkana 

1977, writ ref’d n.r.e.); see also Regents of the Univ. of Minnesota v. Nat'l Collegiate 

Athletic Ass'n, 560 F.2d 352, 364 (8th Cir. 1977), cert. dismissed, 434 U.S. 978 (1977) 

(holding that university officials may challenge interference with performance of their 

duty to afford minimum due process to students). The Attorney General will certainly 

not advocate to this Court that a Settlement Agreement to which he was an active party 

violates the Texas Constitution. Therefore, in order to exercise his right and perform his 

responsibility to challenge the constitutionality of the Settlement Agreement, it is 

necessary for Chief Justice Phillips to be represented by independent counsel. 

8. The Attorney General's Motion to Disqualify Counsel states that the 

Settlement Agreement is entered into "by the Attorney General on behalf of the State of 

Texas" and points out that the Settlement Agreement does not refer to Chief Justice 

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Phillips, implying that the omission somehow absolves the Attorney General of his 

constitutional duty to represent the Chief Justice. By entering into a Settlement 

Agreement on behalf of the State of Texas that ignores the constitutional duties of Chief 

Justice Phillips, whom the Attorney General has purported to represent throughout this 

litigation, the Attorney General has ceased to represent the interests of Chief Justice 

Phillips. If, as the Attorney General’s Motion indicates, the Attorney General is no 

longer representing the interests of Chief Justice Phillips, Chief Justice Phillips must be 

permitted to have his own counsel to represent to the Court why this Settlement 

Agreement is unconstitutional. 

9. Additionally, Chief Justice Phillips cannot be compelled to accept the 

representation of the Attorney General when that representation violates the Attorney 

General’s oath of office. The Attorney General’s Motion states that the Attorney 

General "is cloaked with ’broad judgment and discretion’ and must remain free to 

exercise his discretionary authority.” Motion at p. 4. That discretionary authority does 

not extend, however, to entering into agreements that violate the Texas Constitution. 

Tex. Const. Art. 16 § 1(a). 

10. Furthermore, Chief Justice Phillips is entitled to employ outside counsel 

because the Attorney General has failed to adequately represent his interests. The 

ttorney General’s decision in this case to attempt to settle this lawsuit rather than 

proceed with his defense of the state officials during this court’s en banc review of the 

panel decision against the state inadequately represents the interests of public officials 

charged with the duty of upholding the Texas Constitution. Where the Attorney General 

fails "to adequately represent his client agency, the court may deal with such failure in 

the same manner in which it may address such problems with other lawyers who practice 

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before it." PUC v. Cofer, 754 S.W.2d 121, 125 (Tex. 1988). The proper manner here is 

to allow this defendant to employ, at no cost to the State, counsel that will adequately 

represent his interests in carrying out his constitutionally mandated duties. 

11. Chief Justice Phillips and the Attorney General currently have an 

adversarial relationship in this case. The Attorney General has entered into and is 

seeking adoption of a Settlement Agreement on behalf of the State of Texas that Chief 

Justice Phillips believes is unconstitutional. There is no middle ground between these 

positions. The Texas Supreme Court in Cofer proposed several alternatives for dealing 

with a situation in which the Attorney General was expected to represent adverse 

interests in a case, such as "screening off" the individual state attorneys that represented 

the different state agencies. Id. Here, however, the same individuals have purported to 

represent Chief Justice Phillips and the other state official defendants throughout this 

litigation. Thus adequate representation of the adversarial view cannot be ensured by 

building Chinese walls within the Attorney General’s office. 

12. Chief Justice Phillips needs to employ independent counsel to utilize the 

other alternatives suggested by the Texas Supreme Court in Cofer. First, the Supreme 

Court noted that the authority of the Attorney General to represent state agencies does 

not “close either the mouth of the agency or the ears of the courts, when there are 

complaints that the Attorney General or his assistants are not in fact fulfilling their duty 

to represent the agency.” Id. (emphasis in original). Second, the Texas Supreme Court 

stated that the Court should in all cases ascertain whether the proposed settlement of the 

dispute between the agencies has met with their approval. Id. Without independent 

counsel to speak on his behalf, Chief Justice Phillips will be deprived of an adequate 

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voice to complain of the Attorney General’s failure to represent him and to object to the 

Attorney General’s proposed course of action. 

Conclusion 
  

While the Attorney General may have broad discretion in public policy litigation, 

he does not have the authority to agree, on behalf of the State or of state entities, to 

unconstitutional settlements. This court must scrutinize settlements of redistricting cases 

to make sure that they are fair, adequate, and reasonable and that they do not violate 

the state constitution, unless they violate federal law and no alternative remedy which is 

consistent with the state constitution is available. This court’s scrutiny will be hampered 

it the voices of state official defendants who believe the settlement is unconstitutional are 

silenced by the Attorney General’s "representation" that fails to represent their views. 

The Chief Justice, in his official capacity, has the duty to uphold the Texas Constitution. 

Since the Attorney General's settlement impinges on Chief Justice Phillips’ ability to 

comply with that duty, Chief Justice Phillips must be allowed to use independent counsel 

to voice his constitutional concerns. Therefore, the Motion to Disqualify Counsel should 

be denied. 

WHEREFORE, PREMISES CONSIDERED, Chief Justice Thomas R. Phillips 

respectfully prays that this Court deny the Motion to Disqualify Counsel and for such 

other relief to which the Chief Justice may be entitled. 

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Respectfully submitted, 

   

   

  

D. Jamai gr 
Bar No. 10536000 

Jamail & Kolius 

500 Dallas Street, Suite 3434 
Houston, Texas 77002-4793 
(713) 651-3000 
Telecopy: (713) 651-1957 

INDEPENDENT COUNSEL FOR 
DEFENDANT THOMAS R. 
PHILLIPS, CHIEF JUSTICE OF THE 
SUPREME COURT OF TEXAS AND 
CHAIRMAN OF THE JUDICIAL 
DISTRICTS BOARD 

CERTIFICATE OF SERVICE 
  

I certify that on the 21st day of April, 1993, I sent a copy of the foregoing 
document by first class United States Mail, Return Receipt Requested, postage prepaid 
to each of the following: 

Hon. Dan Morales 
Attorney General 
Price Daniel, Sr. Building 
Austin, Texas 78701 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas 
Suite 800 
Dallas, Texas 75225 

Ms. Cherrilyn A. Ifill 
NAACP Legal Defense & Educational 
Fund, Inc. 
99 Hudson Street, 17th Floor 
New York, New York 10013 

\lulac\1354 

b 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
1717 Main Street 
Suite 2800 
Dallas, Texas 75201 

Ms. Seagal W. Wheatly 
Wheatly & Sharpe 
Suite 1650, Frost Bank Tower 
100 West Houston 
San Antonio, Texas 78205 

Mr. E. Brice Cunningham 
777 South R. L. Thornton Frway. 
Suite 121 
Dallas, Texas 75203 

 



    

Mr. Rolando Rios 
Suite 1024, Milam Building 

115 E. Travis Street 

San Antonio, Texas 78205 

Ms. Gabrielle K. McDonald 
7800 N. Mopac 
Suite 215 

Austin, Texas 78750 

Mr. Edward B. Cloutman, III 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 
3500 NCNB Center 

P. O. Box 4744 
Houston, Texas 77210-4744 

\lulac\1354 10 

  

Ms. Jessica Dunsay Silver 
Department of Justice 
P. O. Box 66078 
Washington, D.C. 20035-6078 

Mr. Tom Maness 

Jefferson County Courthouse 
Beaumont, Texas 77701 

Russell W. Miller 
3300 Texas Commerce Tower 

Houston, Texas 77002 

WP mad 
  

0s TJ iy 

 



CERTIFIED 
JAMAIL & KOLIUS P 995 5S4E LAC 

ATTORNEYS AT LAW 

ONE ALLEN CENTER M A L 

500 DALLAS STREET SUITE 3434 

a HOUSTON, TEXAS 77002-4793 | i ris: 

EA METER 

Ms. Cherrilyn A. Ifill 
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street, 17th Floor 
New York, New York 10013