Order Denying Midland County Motion for Leave to Intervene

    * RECEIVED @ 
UMN 3 01988 

MATTHEWS 4 BRANSCOMB 

  

UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS JAN 9° 1040 

MIDILAND-ODESSA DIVISION hi : 
& U. S. DISTRICT COURT 

LULAC, ET AL., ) cle orice 
) BY ees ho oe « DEPUTY 

Yv. ) MO-88-CA-154 
) 

WILLIAM CLEMENTS, ET AL., ) 

ORDER 
  

Came on this day to be heard the Motion of Midland County 

for Leave to Intervene in the above-captioned cause as of right 

pursuant to Federal Rule of Civil Procedure 24 (a) (2) or, in the 

alternative, in the discretion of the Court pursuant to 

F.R.Civ.P. 24(Db) (2). Upon consideration of the motions and 

arguments of the parties, this Court is of the opinion that such 

motion should be denied. 

DISCUSSION 
  

Plaintiffs bring this action for declaratory judgment 

that the present ‘method of electing district judges in Texas 

dilutes minority voting strenath in violation of the 14th and 

15th Amendments to the U.S. Constitution and the Voting Rights 

Act, 42 U.8.C. 1973. The system under attack is the election 

scheme for state district judges. 

INTERVENTION OF RIGHT 
  

The Fifth Circuit has repeatedly held that a movant must 

 



satisfy four requirements to intervene as of right under Federal 

Civil Rule 24(a) (2). International Tank, ETC., v. M/V Acadia 
  

  

Forest, 579 F.2d 964, 967 (5th Cir. 1978) (citing United States v. 

Perry County Bid. of Ed., 567 F.2d 277 (5th Cir. 1978); Diaz v,. 
  

  

Southern Drilling Co., 427 F.24 1118 . (8th Cir. 1970)). The four 

requirements of the rule include the following: 

(1) the application for intervention must be 
timely: (2) the applicant must have an interest 
relating to the property or transaction which is 
the subject of the action; (3) the applicant must 
be so situated that the disposition of the action 
may, as a practical matter, impair or impede his 
ability to protect that interest; (4) the 
applicant's interest must be inadequately 
represented by the existing parties to the suit. 
New Orleans Public Service, Inc. v. United Gas Pipe 
Line Company, 732 F.2d 452, 463 (5th Cir. 1984). 
  

  

If an intervenor fails to meet one of these requirements, 

then it cannot intervene as a matter of right. 

Plaintiffs oppose the Motion to Intervene alleging that 

movants do not have the requisite "legally protectable interest" 

relating to the pEopaTLY or transaction which is the subject of 

this action. Therefore, our focus is on the second requirement. 

There is not yet any clear definition, either from the 

Supreme Court or frcm the lower courts, of the nature of such an 

interest. Wright, Miller and Kane, Federal Practice and 
  

  

Procedure: Civil 2d Sec. 1908. This Court agrees with Plaintiff 

that movant must have a direct, substantial, and legally 

protectable interest in the property or transaction which is the  



  

  

subject of this suit. New Orleans Public Service v. United Gas 

  

Pipeline, 732 F.2d 452, 463-466 (5th Cir. 1984). 

"It is plain that something more than an economic 
interest is necessary. What is required is that 
the interest be one which substantive law 
recognizes as belonging to or being owned by the 
applicant." 

Id. at 464. A claim belongs to or is owned by the applicant if 

he is the real party in interest. Id. at 464; Fed.R.Civ.P. 

l7(a). A way of analyzing the question of whether a county is a 

"real party in interest," is to ask whether a county caused the 

injury, and if so, whether it has the power to comply with a 

remedial order of this Court should the Court find in favor of 

the Plaintiff on the merits. "If this [D]efendant has not 

caused the injury, a remedy directed against him will not relieve 

the injury." 13 C. Wright, A. Miller & E. Cooper, Federal 

Practice and Procedure Section 3531.5 (1984) at 458. 
  

This Court ° is not convinced that intervenors have an 

interest in the transaction which is the subject of the action. 

District Courts are created by the Constitution of the State of 

Texas. The state is divided into judicial districts by the 

legislature or one of its delegates.? Redistricting is a 

  

ll. Tex. Const, Art. V, Sec. 1. 

2 The drawing of judicial district lines is vested in three 
bodies: (1) the state legislature, Tex. Const. Art. V, Sec. 7 & 
7a; (2) the Judicial Districts Board, Tex. Const. Art. V, Sec. 

3 

 



  

legislative function which can be delegated to the Judicial 

District's Board or the Legislative Redistricting Board.?3 

Midland County has not pointed to any role of counties in 

judicial redistricting. This Court is of the opinion that 

counties have no "direct, substantial, and legally protectable 

interest" in the question of whether the present judicial lines 

are discriminatory. 

PERMISSIVE INTERVENTION 
  

Permissive intervention "is wholly discretionary with the 

District Court even though there may be a common question of law 

or fact, or the requirements of Rule 24(b) are otherwise 

satisfied."4 New Orleans Public Service, Inc. V. United Gas 
  

Pipe Line Co., 732 F.2d 452, 471 (5th Cir.) (en banc) (quoting 
  

7C C. Wright, A. Miller & M. Rane, Federal Practice and 
  

Procedure, Section 1913, at 376-77 (2d ed. 1986)) cert. denied, 
  

  

462 U.S, 1019, 105 S.Ct, 434, 83 L.E4.24 360 (1984). 

In acting on a request for permissive intervention the 

  

7a; and (3) the Legislative Redistricting Board, Tex. Const. 
Art. III, Sec. 28. 

3 Tex. Const. Art. Vv, Sec. 7a(h). 

4 Rule 24 (b) (2) provides for permissive intervention where 
(1) timely application is made by the intervenor, (2) the 
intervenor's claim or defense and the main action have a question 
of law or fact in common, and (3) intervention will not unduly 
delay or prejudice the adjudication of the rights of the original 
parties. 

 



  

District Court may consider, among other factors, whether the 

intervenors are adequately represented by other parties and 

whether they will significantly contribute to full development of 

the underlying factual issues in the suit. New Orleans Public 
  

Service, Inc. Vv. United Gas Pipe Line Co., 732 F.2d at 472 
  

(citations omitted). The effect on existing parties is also to 

be considered. Id. at 473. 

This Court is not convinced that the Texas Attorney 

General cannot adequately represent any interest Midland County 

might have in the outcome of this litigation. Midland County 

recognizes that the Texas Attorney General is charged by law with 

the representation of the interests of the State of Texas. 

Absent allegations of collusion, nonfeasance or adversity of 

interest, the Texas Attorney General is presumed to represent the 

count's interest adequately. Kneeland v. National Collegiate 
  

Athletic Association, 806 F.2d 1285, 1288 (5th Cir. 1987) (citing   

Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984)). Like the   

proposed intervenors in Kneeland, the proposed intervenors in 
  

the present case do not allege collusion or nonfeasance. 

Instead, Midland County argues that they will more vigorously 

defend the suit. Midland County's allegations do not show any 

adversity of interest. 

The Court is of the further opinion that Midland County 

cannot significantly contribute to full development of the 

 



  

underlying factual issues in the suit. The factual issues 

relating to Midland County are only one part of a challenge 

directed toward 19 target Texas counties. r 

Therefore, this Court is of the opinion that Midland 

County should not be allowed to Intervene in the above-captioned 

cause. Accordingly, 

IT IS ORDERED that the Motion of Midland County for Leave 

to Intervene in the above-captioned cause is hereby DENIED. 

SIGNED AND ENTERED this 21 day of January, 1989. 

        

  

   ucius D. Bunton 

hief Judge