Defendants' Response to Motion to Intervene by Wood and Midland County's Request for Reconsideration of Order Denying Intervention

    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. CO
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DEFENDANTS' RESPONSE TO MOTION TO INTERVENE BY 

HARRIS COUNTY DEFENDANT-INTERVENOR WOOD AND 
MIDLAND COUNTY'S REQUEST FOR RECONSIDERATION OF 

ORDER DENYING INTERVENTION 

The defendants respond as follows to Harris County District 

Judge Sharolyn Wood's Motion to Intervene and Midland County's 

reconsideration request, neither of which it received in the mail until 

this morning, February 24th: 

Harris Countv Defendant-Intervenor 
  

Putting aside the inaccurate, ill-informed representations about 

such matters as whether there is substantial opposition to the 

plaintiffs’ suit, the defendants do not oppose Judge Wood's 

intervention in her individual, or personal, capacity. In the last two 

paragraphs of Defendants’ Response to Motions to Intervene by 

Dallas County Plaintiff-Intervenors and Travis County Defendant- 

Intervenors, the defendants explain why sitting judges should be 

allowed to intervene in the capacity of an officeholder rather than an 

office. As the Court recognized in its order denying Midland County's 

motion to intervene, the Attorney General represents the interests of 

 



  

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the State of Texas in this matter. The office of district judge 1s a state 

office, not a county office. Under state law, the Attorney General 1s 

the authorized attorney for the state and its offices in civil litigation. 

See, e.g., Charles Scribner's Sons v. Marrs, 262 SW. 722, 727 (Tex. 

1924); Brady v. Brooks, 89 S.W. 1052, 1056-57 (Tex. 1905); Bullock 

v. Texas Skating Association, 583 S.W.2d 888 (Tex.Civ.App.--Austin 

1979, writ ref'd n.r.e.); see also United States v. Texas, 680 F.2d 356, 

368 n.16 (5th Cir. 1982). By comparison, when a state district judge 

is sued in federal court in a personal capacity for actions associated 

with judicial activity, the judge has the option of seeking 

representation from the Attorney General or from private counsel. 

See, e.g., Texas Government Code § 402.024(a) (state district judges). 

The allocation of authority among state officers to represent 

the State is wholly a matter of state concern. New York v. Uplinger, 

467 U.S, 246, 247 .nq, 104.S5.Ct. 2332, 2333 'n.1 (19834) (also noting 

the special relevance of the Attorney General's views of a matter 

involving state interests). The brief synopsis of state law in the 

preceding paragraph on the subject of the Attorney General's powers 

and duties is intended only to acquaint the Court with basic law in 

this area. It was undertaken only to illustrate the firmness of the 

ground on which the Court stood when it evaluated the question of 

who speaks for the State in the context of Midland County's 

intervention motion and on which it will stand if it evaluates the 

other defendant-intervention motions from the perspective of 

personal, as opposed to official, capacity. This Court need not be 

confronted with a major debate on the collateral and sometimes 

highly-charged issue of the Attorney General's powers and duties 

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under the Texas Constitution. Analyzing the interventions as 

suggested by the defendants will avoic such matters and allow the 

focus to be on the important substantive issues in this case. 

Midland Countv's Reconsideration Request 
  

Midland County's request that the Court reconsider its earlier 

ruling denying it intervention contains some spurious claims, 

especially at page 10, about the Attorney General's representation 1n 

this case. The Attorney General has no conflict in this case. Instead, 

he is defending a system of electing state district judges that 1s 

created and maintained by state law, not county ordinances or 

judicial edicts. As with such other types of cases handled by the 

Attorney General as environmental enforcement litigation, local 

assistance is helpful and perhaps necessary. The defendants 

formally have invited it through not opposing the putative 

defendant-intervenors motions, but, by doing so, they do not 

subscribe to all the arguments, some irrelevant and some misleading, 

in support of those motions. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

  ing, Ah 
RENEA HICKS 

Special Assistant Attorney General 

 



  

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JAVIER GUAJARDO 
Assistant Attorney General 

P.O. Box 12543 

Austin, Texas 78711-2548 

(512) 463-2085 

ATTORNEYS FOR DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that on this 24th day of February, 1989, I sent a copy 

of the foregoing document by first class United States mail, postage 

prepaid, to each of the following: Rolando Rios, 201 N. St. Mary's, 

Suite 521, San Antonio, Texas 783205; Ken Oden, Travis County 

Attorney, P. O. Box 1748, Austin, Texas 78767; Gabrielle K. McDonald, 

301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward B. 

Cloutman, II, 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; 

and Mark H. Dettman, Midland County Courthouse, P. O. Box 2559, 

- el 

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N      enea Hicks