Response in Potential, Partial Opposition to Motion by Some Jefferson County District Judges for Leave to File Amicus Curiae Brief

    UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al, 

Plaintiffs-Appellees, 

VS. No. 90-8014 

ATTORNEY GENERAL 
OF TEXAS, et al., 

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Defendants-Appellants. 

RESPONSE IN POTENTIAL, PARTIAL OPPOSITION TO MOTION BY 
SOME JEFFERSON COUNTY DISTRICT JUDGES FOR LEAVE TO FILE 

AMICUS CURIAE BRIEF 

The Attorney General of Texas, the Secretary of State of Texas, 

and the thirteen members of the Texas Judicial Districts Board, 

including the Chief Justice of the Supreme Court of Texas sitting as 

Chairman, official-capacity defendants-appellants (collectively, "state" 

or "Texas") respond as follows to the Motion by District Judges of 

Jefferson County for Filing of Amicus Curiae Brief and Taking of 

Judicial Notice: 

Seven of the eight incumbent district judges in Jefferson County, 

Texas, seek leave of Court to file an amicus curiae brief. They fail to 

indicate whether they seek such leave in their official or personal 

capacities. To the extent that they seek such leave in their personal 

capacities, the state does not oppose the motion, although it would 

urge the Court, should it grant the motion, to indicate the capacity in 

which leave is being given. The difference matters, because official 

and personal capacity appearances constitute separate personages as 

parties. Karcher v. May, 108 S.Ct. 388, 393 (1987). In this very case,  



  

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in fact, the Court has recognized that incumbent judges have no legally 

justiciable interest in their official capacities, but do in the personal 

capacities. Compare 884 F.2d 185, 188 (5th Cir. 1989) with 923 F.2d 

365, 367 n.1 (5th Cir. 1991). 

The Texas Constitution establishes the Attorney General of Texas 

as the only authorized attorney for state officials in their official 

capacity (although, upon request, he or she may authorize dutside 

counsel), and federal law defers to that assignment of responsibility by 

the people of Texas. See, e.g., New York v. Uplinger, 467 U.S. 246, 

247 n.1 (1984); United States v. Texas, 680 F.2d 356, 368 n.16 (5th 

Cir. 1982). 

There is no necessity for the battle lines to continue to be drawn 

over this issue -- in which by the way the law seems clearly settled in 

the state's favor. Supposed independent counsel for state officials 

withdrew quite some time ago, thereby mooting the state's motions 

raising this issue. Recent correspondence from the private attorney, 

Mr. Wheatley, representing six incumbent Bexar County district judges 

in the appeal from the trial court's denial of their intervention 

specifies that he is seeking to represent them only in their personal 

capacities, thereby mooting the state's pending motion with respect to 

them. The Jefferson County amicus effort appears to be the last of the 

skirmishes in this area, and permitting that amicus to be filed for the 

judges only in their personal capacities removes it from the battlefield, 

too. 

  

A review of the state's files suggests that only two motions which are not moot 
remain unruled upon (at least specifically) by the Court. One is the state's motion for 
judicial notice of virtually the same fact presented by the Jeffereson County judges; the 
other is the state's motion for sanctions against Judge Wood for her attorney fee 
recovery effort. 

 



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The state therefore urges the Court to act on the motion as 

urged above. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

JAVIER GUAJARDO 
Special Assistant Attorney General 

  

  

RENEA HICKS 
Special Assistant Attorney General 

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

ATTORNEYS FOR 
STATE DEFENDANTS-APPELLEES 

CERTIFICATE OF SERVICE 

I certify that on this 23rd day of October, 1991, I sent twe OQ 
copies- of the foregoing document by first class United States mail, 
postage prepaid, 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, 7800 
N. Mopac, Suite 215, Austin, Texas 78750; Edward B. Cloutman, III, 
3301 Elm Street, Dallas, Texas 75226-1637; E. Brice Cunningham, 
777 South R. L. Thornton Frwy., Suite 121, Dallas, Texas 75203; J. 
Eugene Clements, Porter & Clements, 3500 NCNB Center, 700 
Louisiana, Houston, Texas 77002-2730; Robert H. Mow, Jr., Hughes & 
Luce, 1717 Main Street, Suite 2800, Dallas, Texas 75201; Jessica 
Dunsay Silver, Department of Justice, P. O. Box 66078, Washington, D. 

-3- 

 



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C. 20035-6078; Susan Finkelstein, Texas Rural Legal Aid, Inc., 405 N. 
St. Mary's, Suite 910, San Antonio, Texas 78205; David R. Boyd, Balch 
& Bingham, P. O. Box 78, Montgomery, Alabama 36101; Susan E. Russ, 
Miller, Hamilton, Snider & Odom, One Commerce Street, Suite 802, 
Montgomery, Alabama 36104; Fournier J. Gale, III, Maynard, Cooper, 
Frierson & Gale, 2400 AmSouth Tower - Harbert Plaza 1901 6th 
Avenue, North, Birmingham, Alabama 361010; Walter S. Turner, Office 
of the Attorney General, 11 South Union Street, Room 303, 
Montgomery, Alabama 36130; ; Tom Maness, Jefferson County 
Courthouse, Beaumont, Texas 77701; Seagal V. Wheatley, 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, 
Sixth Floor, San Antonio, Texas 78205; and Russell W. Miller, 3300 
Texas Commerce Tower, Houston, Texas 77002. 

EERE AYY 2 

  

  

Hicks