Reply to Defendant-Intervenor Wood's Response Concerning Alteration of January 2nd Order; Attorney General's Reply to the Response of the Independent Counsel; Notice of Appeal

    rs 

       

  

THE ATTORNEY GENERAL 
OF TEXAS 

JIM MATTOX January 10, 1990 
ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
U.S. District Clerk 
200 East Wall, Room 316 
Federal Building 
Midland, Texas 79701 

  

Re: LULAC #4434, et al. v. Mattox, et al., 
Civil Action No. MO-88-CA-154 

Dear Sir or Madam: 

Enclosed for filing in the above-referenced cause are the original 
and one copy of: (1) a Reply to Defendant-Intervenor Wood's Response 
Concerning Alteration of January 2nd Order (a telecopy of which was 
filed with the Court today with its permission); (2) the Attorney 
General's Reply to the Response of the Independent Counsel; and (3) a 
Notice of Appeal by the State Defendants. Also enclosed is a check for 
$105.00 payable to the United States District Clerk for fees associated 
with the appeal. 

Sincerely, 

Cas 24s 
Renea Hicks 
Special Assistant Attorney General 

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

cc: Counsel of Record 

312/163-2100 SUPREME COURT BUILDING AUSTIN, TEXAN 7THT7II-23518 

 



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

VS. Civil Action No. 

MO-88-CA-154 
JIM MATTOX, et al., 

Defendants. 

REPLY TO DEFENDANT-INTERVENOR WOOD'S RESPONSE 
CONCERNING ALTERATION OF JANUARY 2ND ORDER 

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

submits the following reply to the response by defendant-intervenor 

Judge Wood (in her personal, not official, capacity) to the Attorney 

General's motion to alter the Court's January 2nd order: 

MISCONCEPTIONS AND POLITICS 
  

Judge Wood's fears that the Attorney General's Rule 59(e) 

motion of January 4th was an effort to "frustrate" the appeals of her 

and Judge Entz are baseless misconceptions. The motion was 

precisely what it said it was: an effort to convince the Court to alter a 

critical element of its interim remedial plan. If the Attorney General 

had the objective of preventing the Fifth Circuit from exerting 

jurisdiction, he would do what he has not done: file a jurisdictional 

motion with that court.! 

  

1 The Attorney General has noted his view that "independent counsel's” filing of a 
Notice of Appeal on behalf of a nominal defendant already represented by the Attorney 
General was ineffective. That view was expressed only with regard to the specifically 
noted filing, which took place in a far different context than the other notices of appeal. 
The other personal-capacity defendant-intervenor, Judge Entz, has disputed the point 
in a filing with the Fifth Circuit. That filing is under review to see if a response is 
warranted.  



  

Besides, Judge Wood's surmise is an irrelevancy. Psychology and 

underlying intent are beyond the realm of relevant judicial inquiry 

here. Why the plaintiffs really filed suit, why Judge Wood really wants 

to maintain the status quo, and why the Attorney General really filed 

the motion to alter may be fit subjects for journalistic inquiry, 

speculation, or pulp fiction; they are not for judicial inquiry. 

The injection by Judge Wood of irrelevant surmise is not 

confined to the foregoing misconception. In her response here and in 

other recent filings, she has attacked the Attorney General on political 

grounds. Again, those attacks are irrelevant to the proceedings before 

the Court. The Attorney General will not join the debate about motives 

in this forum. 

In reply to Judge Wood's extended comments in pages 7-11 of 

her response, it suffices to note that the Attorney General, not Judge 

Wood, was elected and serves as the state's chief legal officer in 

judicial forums. Judge Wood is here in her personal capacity, not as a 

state official. Her views about how the state should be represented are 

her personal views and, as with many other exertions by her in her 

response and other recent filings, an irrelevant imposition on the 

Court.2 

JURISDICTION 

The Court's January 2nd order undoubtedly is appealable as of 

right. It enjoins 1990 elections under the current system, directing 

that they take place under a new system. Regardless of whether it is a 

  

4 The Attorney General apologizes for burdening the Court with these 
introductory remarks. They seemed necessary, however, to avoid the possibility that 
the Court might deem silence on these matters to indicate acquiescence to the 
characterfzations by others in court filings. It does not. 

2. 

 



  

final or an interlocutory decision, the Fifth Circuit will have 

jurisdiction pursuant to either 28 U.S.C. § 1291 or § 1292(a)(1) over a 

timely and properly filed notice of appeal. Likewise, regardless of 

whether the January 2nd order is final or interlocutory, this Court 

retains jurisdiction to make the alteration in its order which the 

Attorney General seeks. 

It is indisputable that the Court retains jurisdiction to act on a 

timely-filed Rule 59(e) motion if a notice of appeal was filed before the 

motion. Any other conclusion on this point would effectively repeal 

FRAP 4(a)(4). This conclusion seems uncontested. 

The Court also retains jurisdiction to act on a party's motion to 

alter (even if it technically may not be characterized as a Rule 59(e) 

motion) an interlocutory order containing an injunction even if 

another party has filed a notice of appeal of the interlocutory order.3 

Rule 62(c) makes this point clear. 

Rule 62(c) provides in relevant part: 

When an appeal is taken from an interlocutory . 
. . judgment granting . . . an injunction, the 
court in its discretion may . . . modify . . . [it] 
during the pendency of the appeal. 

Judge Wood misinterprets Coastal Corp. v. Texas Eastern Corp., 

869 F.2d 817 (5th Cir. 1989), in arguing that its discussion of the 

interrelationship of Rule 62(c) and a notice of appeal means this Court 

currently lacks jurisdiction to modify any aspect of its January 2nd 

injunction. First, Coastal Corp. held that a district court's dissolution 

of a preliminary injunction while an appeal of that injunction was 

  

3 Judges Wood and Entz are personal-capacity defendant-intervenors with respect to Harris and Dallas 
Counties only. Thus, even if Judge Wood were correct about jurisdiction (and she is not), it would not 
affect the other seven counties in which elections have been enjoined. 

3. 

 



  

pending was not within Rule 62(c)'s ambit. 869 F.2d at 819. The 

reason was because the power to dissolve is not specified in Rule 62(c) 

and cannot be construed to be just a variation on the power to modify, 

which is specified in the rule. Id. Second, the basic holding of Coastal 

Corp. with regard to the issue before this Court is summarized in the 

following passage: 

[TIThe powers of the district court over an 
injunction pending appeal should be limited to 
maintaining the status quo and ought not to 
extend to the point that the district court can 
divest the court of appeals from jurisdiction 
while the issue is before us on appeal. 

869 F.2d at 820. 

Granting the pending Motion to Alter the Order of January 2, 

1990, would have no effect on the jurisdiction of the Fifth Circuit over 

the two appeals now before it. That is, to use the mold created by the 

language of Coastal Corp., altering the January 2nd order with regard 

to the partisanship issue would not divest the Fifth Circuit of 

jurisdiction over the parts of the case now on appeal. Judge Wood at 

least would seem to agree for she says in her response: "Any action 

this Court could take regarding partisanship or non-partisanship 

under its Interim Plan would be entirely irrelevant to the appeal, since 

that appeal in no way depends on whether elections are partisan or 

non-partisan." Wood Response, at 4-5. Disposition of the motion to 

alter would maintain the status quo among the parties at the time the 

notices of appeal were filed. Even if the motion were granted, the 

injunction still would prohibit use of the old system and require use of 

a new system. 

 



  

There is an additional reason why the Court's exercise of 

jurisdiction over the motion to alter would not affect the Fifth Circuit's 

jurisdiction and would be entirely consistent with the holding of 

Coastal Corp. The Attorney General has not yet filed a notice of appeal 

of the Court's January 2nd order, and, therefore, the Fifth Circuit does 

not yet have jurisdiction with regard to such an appeal. Acting on the 

Attorney General's motion can have no effect at all on the Fifth 

Circuit's jurisdiction over an as of yet non-existent appeal. 

CONCLUSION 

The Court should exercise its clear jurisdiction to rule on the 

merits on the pending Motion to Alter the Order of January 2, 1990. 

We urge the Court to act today if at all possible. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
Fir istant Attorney General 
     

     RENEA HICKS 
Specigl AssistantAttorney General 

  

JAVIER GUAJARDG “7 
Assistant Attorney General 

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

 



CERTIFICATE OF SERVICE 

I certify that on this 10th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier to each of the 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; and John L. 
Hill, Jr. Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002. 

Renea Hicks 

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 8 

Plaintiffs, § 

§ 
i 

VS § Civil Action No. 
§ MO-88-CA-154 

§ 
JIM MATTOX, et al., 8 

Defendants. 8 

THE ATTORNEY GENERAL'S REPLY TO THE RESPONSE OF THE 
INDEPENDENT COUNSEL 

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

files this reply to the Independent Counsel's Response To Motion To 

Strike And Request For Hearing, as follows: 

1, Mr. Hill in his response to the Attorney General's Motion 

to Strike makes an unfounded assertion that because "[a] clear conflict 

of interest exists between" the Secretary of State and the Attorney 

General, the Secretary of State is entitled to an independent counsel 

who will serve his best interests. The only legal authority cited for 

this contention is a quote, taken out of context, from Public Utility 

Commission of Texas v. Cofer, 754 S.W.2d 121 (Tex. 1988) ("Cofer"). 

2. The quote is actually one of four safeguards that the Court 

in Cofer stated assure an adversary proceeding in cases where the 

Attorney General represents opposing agencies. The only issue in 

Cofer was the Attorney General's authority to represent opposing state 

agencies in the same lawsuit. The Texas Supreme Court in Cofer held 

that dual representation by the Attorney General of opposing agencies 

 



  

does not violate the principle of separation of powers or constitute 

such a threat to fundamental principles of the adversary system to 

justify the exercise of a district court's inherent powers to force the 

Attorney General "to either make an election between the two 

agencies or permit the agencies to obtain independent counsel." 754 

S.W.2d at 125, 123. 

3. The heightened scrutiny that comes when the state's 

attorney represents the parties on both sides of a lawsuit -- a position 

that is not allowed to private attorneys -- does not apply here. Indeed, 

the attempt of the self-anointed independent counsel to suggest that 

an irreconcilable conflict of interest exists is not even supported by 

the heightened scrutiny in Cofer. 754 S.W.2d at 122, 124 (reversing 

the district court holding that when the Attorney General represents 

opposing state agencies in the same lawsuit that representation 

creates an irreconcilable conflict of interest, the court recognized that 

that it was not free to rewrite Texas statutes requiring the Attorney 

General to represent both state agencies in court). 

4. Mr. Hill attempts to make a disagreement over litigation 

strategy with the Attorney General into a conflict of interest problem. 

As discussed in the memorandum in support of the motion to strike, 

Texas constitutional, statutory, and case law all hold that the Attorney 

General of Texas not only represents the Secretary of State but that he 

also controls the litigation (and as such determines litigation strategy) 

in which the Secretary of State is an official-capacity named defendant. 

Cf. State v. Thomas, 766 S.W.2d 217 (Tex. 1989) (vacating an order of 

the Public Utility Commission denying intervention by the Attorney 

General); Scott v. Exxon Corp., 763 S.W.2d 764, 767 (Tex. 1988) 

-2- 

 



(court's reliance on a stipulation signed by the Commissioner of the 

General Land Office was not binding on the state because the record 

failed to show that the Attorney General approved the stipulation). 

5; Counsel for the State of Texas is not supposed to be 

"independent," to use Mr. Hill's coinage. He or she is supposed to 

answer to the people and attend to the public interest. 

[Wlhen an agency head recommends a course 
of action, the Attorney General must consider 
the ramifications of that action on the interests 
of the [state] and the public generally, as well 
as on the official himself and his agency. To 
fail to do so would be an abdication of official 
responsibility. 

Feeney v. Commonwealth, 366 N.E.2d 1262, 1266 (Mass. 1977). The 

Attorney General serves this role. 

Based upon the foregoing matters, the Attorney General requests 

the Court to grant his motion and strike the pleadings. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Co Lok 
RENEA HICKS 
Special Assistant Attorney General 

7 
JAVIER GUAJARDO 
Assistant Attorney General 

  

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

<3-  



  

CERTIFICATE OF SERVICE 

I certify that on this 10th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier to each of the 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, 711 Navarro, Sixth Floor, San Antonio, Texas 

i Phe Le 
  

Renea Hicks 

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

Civil Action No. 

MO-88-CA-154 

VS. 

JIM MATTOX, et al., 

Defendants. on
 

Go
n 

Lo
n 

Un
 

on
 

Ao
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un
 

NOTICE OF APPEAL 

Notice is hereby given that, in their official capacities, the Attorney 

General of the State of Texas (Jim Mattox), the Secretary of State of the 

State of Texas (George S. Bayoud, Jr.), and the members of Texas's Judicial 

Districts Board (Thomas R. Phillips, Chief Justice of the Supreme Court of 

Texas, Mike McCormick, Presiding Judge, Court of Criminal Appeals, Ron 

Chapman, Presiding Judge of the 1st Administrative Judicial Region, 

Thomas J. Stovall, Jr., Presiding Judge of the 2nd Administrative Judicial 

Region, James F. Clawson, Jr., Presiding Judge of the 3rd Administrative 

Judicial Region, John Cornyn, Presiding Judge of the 4th Administrative 

Judicial Region, Robert Blackmon, Presiding Judge of the 5th 

Administrative Judicial Region, Sam B. Paxson, Presiding Judge of the 6th 

Administrative Judicial Region, Weldon Kirk, Presiding Judge of the 7th 

Administrative Judicial Region, Jeff Walker, Presiding Judge of the 8th 

Administrative Judicial Region, Ray D. Anderson, Presiding Judge of the 9th 

Administrative Judicial Region, Joe Spurlock II, President, Texas Judicial 

Council, and Leonard E. Davis) hereby appeal to the United States Court of 

Appeals for the Fifth Circuit from the Court's Order of January 2, 1990, (and 

the underlying liability determination in the order of November 8, 1989, as 

modified). 

 



  

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
JH tant Attorney General 

i = 0/44 
~ oom 

Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

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

ATTORNEYS FOR STATE DEFENDANTS 

 



    
THE ATTORNEY GENERAL 

Or TEXAS 

JIM NMATTOX 

ATTORNEY GENERAL 

January 10, 1990 

VIA FEDERAL EXPRESS 
  

Gilbert Ganucheau 
ATT'N: Eileen Boudin 

Clerk, Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

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

Dear Sir or Madam: 

Enclosed for filing in the above-referenced matter are the original and 
three copies of The Attorney General's Reply to the Response of the 
Independent Counsel. 

Sincerely, 

20 VU 29 
enea Hicks 

Special Assistant Attorney General 

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

Enclosure 

312/163-2100 SUPREME COURT BUILDING AUSTIN, TEXAS T8H7I1I-235-48 

 



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

No. 90-8014 

JIM MATTOX, et al., 

Defendants-Appellants. Co
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on
 

Go
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Ao
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Aa
n 

Ao
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Ao
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Go
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Ao
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Un
 

THE ATTORNEY GENERAL'S REPLY TO THE RESPONSE OF THE 
INDEPENDENT COUNSEL 

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

files this reply to the Independent Counsel's Response To Motion To 

Strike, as follows: 

1. Mr. Hill in his response to the Attorney General's Motion 

to Strike makes an unfounded assertion that because "[a] clear conflict 

of interest exists between" the Secretary of State and the Attorney 

General, the Secretary of State is entitled to an independent counsel 

who will serve his best interests. The only legal authority cited for 

this contention is a quote, taken out of context, from Public Utility 

Commission of Texas v. Cofer, 754 S.W.2d 121 (Tex. 1988) ("Cofer"). 

2 The quote is actually one of four safeguards that the Court 

in Cofer stated assure an adversary proceeding in cases where the 

Attorney General represents opposing agencies. The only issue in 

Cofer was the Attorney General's authority to represent opposing state 

agencies in the same lawsuit. The Texas Supreme Court in Cofer held 

that dual representation by the Attorney General of opposing agencies 

 



does not violate the principle of separation of powers or constitute 

such a threat to fundamental principles of the adversary system to 

justify the exercise of a district court's inherent powers to force the 

Attorney General "to either make an election between the two 

agencies or permit the agencies to obtain independent counsel." 754 

S.W.2d at 125, 123. 

3. The heightened scrutiny that comes when the state's 

attorney represents the parties on both sides of a lawsuit -- a position 

that is not allowed to private attorneys -- does not apply here. Indeed, 

the attempt of the self-anointed independent counsel to suggest that 

an irreconcilable conflict of interest exists is not even supported by 

the heightened scrutiny in Cofer. 754 S.W.2d at 122, 124 (reversing 

the district court holding that when the Attorney General represents 

opposing state agencies in the same lawsuit that representation 

creates an irreconcilable conflict of interest, the court recognized that 

that it was not free to rewrite Texas statutes requiring the Attorney 

General to represent both state agencies in court). 

4 Mr. Hill attempts to make a disagreement over litigation 

strategy with the Attorney General into a conflict of interest problem. 

As discussed in the memorandum in support of the motion to strike, 

Texas constitutional, statutory, and case law all hold that the Attorney 

General of Texas not only represents the Secretary of State but that he 

also controls the litigation (and as such determines litigation strategy) 

in which the Secretary of State is an official-capacity named defendant. 

Cf. State v. Thomas, 766 S.W.2d 217 (Tex. 1989) (vacating an order of 

the Public Utility Commission denying intervention by the Attorney 

General); Scott v. Exxon Corp., 763 S.W.2d 764, 767 (Tex. 1988) 

-2-  



(court's reliance on a stipulation signed by the Commissioner of the 

General Land Office was not binding on the state because the record 

failed to show that the Attorney General approved the stipulation). 

5. Counsel for the State of Texas is not supposed to be 

"independent," to use Mr. Hill's coinage. He or she is supposed to 

answer to the people and attend to the public interest. 

[Wlhen an agency head recommends a course 
of action, the Attorney General must consider 
the ramifications of that action on the interests 
of the [state] and the public generally, as well 
as on the official himself and his agency. To 
fail to do so would be an abdication of official 
responsibility. 

Feeney v. Commonwealth, 366 N.E.2d 1262, 1266 (Mass. 1977). The 

Attorney General serves this role. 

Based upon the foregoing matters, the Attorney General requests 

the Court to grant his motion and strike the pleadings. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

RENEA HICKS 
Special Assistant Aloney General 

JAVIER GUAJARDO / 
Assistant Attorney General 

  

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

-3-  



  

CERTIFICATE OF SERVICE 

I certify that on this 10th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier to each of the 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, 711 Navarro, Sixth Floor, San Antonio, Texas 

  

78205. 

oS Jae io 4 
Renea Hicks |