Order Denying Motion

    IN THE UNITED STATES DISTRICT COURT F I L E D 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION JBi 11 1307 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

JIM MATTOX, Attorney General 
of the State of Texas, et al. 

) 
) 

Vv. MO-88-CA-154 

) 
) 
) 

QRDER 

BEFORE THIS COURT is the Motion of Attorney General Jim 

Mattox on behalf of the State of Texas to Alter this Court's 

Order of January 2, 1990; the Response thereto of Harris County 

District Judge Sharolyn Wood; and the Response thereto of 

Plaintiffs LULAC et al., Plaintiff-Intervenors Jesse Oliver, et 

al., and Plaintiff-Intervenors Houston Lawyers Association et al. 

Having considered said Motion and Responses, the Court is of the 

opinion that said Motion should be denied. 

The Court is further of the opinion that other changes to 

certain terms of the injunction contained in that January 2, 1990 

Order are proper. Specifically, the Court herein modifies the 

Order for the limited purpose of delaying the elections ordered 

pursuant to its Order, and removing the expedited rights of 

appeal previously granted in this matter. 

The Court believes that delaying judicial elections pursuant 

to its Order of January 2, 1990 is desirable for several reasons. 

First, the Court notes that Governor Bill Clements recently 

called a special session of February 27, 1990, to deal 

 



specifically with Texas’ system of selecting judges. In the 

interests of comity and Federalism, legislatively directed 

remedial measures are preferable to measures ordered by this 

Court. Delaying the judicial elections ordered by this Court 

will serve these interests by giving the Legislature additional 

time. Second, judicial elections will still take place in 1990 

under the modified Order, thus minimizing disruption of the Texas 

judiciary. Third, delaying court-ordered judicial elections will 

provide additional time for the United States Department of 

Justice to consider any remedy adopted by the Legislature before 

such elections occur. Fourth, delaying these elections will 

remove the need for expedited appeal to the Fifth Circuit by 

providing additional time for that Court to consider and rule 

upon this Court’s Order before court-ordered judicial elections 

occur. 

The Court urges the Legislature to consider in its 

deliberations a quotation from President Harry S. Truman, who 

said, "[w]e must build a better world, a far better world--one in 

which the eternal dignity of man is respected." 

I. The Attorney General's Motion is Properly Asserted Pursuant to 
  

Rule 59(e), Fed. R. Civ. P., and This Court Retains Jurisdiction 
  

to Modify Its Order of January 2, 1990. 
  

The Defendant-Intervenor Judge Wood of Harris County appears 

to question the effect of the Attorney General’s Motion on the 

notices of appeal filed in this case by herself and Judge Entz, 

and the powers of this Court to modify the terms of the  



injunction contained in its Order of January 2, 1990. There is 

no serious dispute before the Court that the parties to this case 

have the right under 28 U.S.C. Section 1292(a)(1l) to appeal this 

Court’s Order of January 2, 1990. If that Order were a judgment 

as to which the Attorney General’s Motion is properly asserted 

under Rule 59(e), then the Parties’ notices of appeal are 

ineffective, the Court retains jurisdiction to modify the 

judgment, and the deadlines for appeal are extended according to 

Fed. R. App. P. 4(b)(4). The Court believes that Order is such a 

judgment, and that this is the correct analysis. 

A "judgment" for purposes of Rule 59(e), which provides for 

the amendment of a judgment and the postponement of the time for 

filing an appeal, is defined in Rule 54(a). See Wright, Miller & 

Kane, FEDERAL PRACTICE AND PROCEDURE Section 2651 and cases cited 

therein. Rule 54(a) defines judgment as an "appealable order." 

28 U.S.C. Section 1292(b) undisputedly makes this Court’s Order 

of January 2, 1990 appealable of right. Therefore a motion to 

alter or amend the judgment is properly asserted under Rule 

59(e). 

The Attorney General’s Motion would properly be brought 

under Rule 62(c), if jurisdiction of the case were already lodged 

in the court of appeals, for example where a Rule 59(e) motion 

was not timely made and appeal was taken, or a Rule 59(e) motion 

was made and ruled upon, and appeal subsequently taken. 

The Court assumes for the purposes of this Motion that there 

exist other circumstances that would make a Rule 59(e) Motion 

improper here, although the Court takes pains to note that the  



  

parties have not cited the Court to such circumstances, and the 

Court in examining its jurisdiction has so far found none. In 

that event, Judge Wood contends, the Attorney General’s Motion is 

one properly asserted under Rule 62(c), under which Rule this 

Court’s modification powers are curtailed. 

The Court also assumes that its sua sponte alteration of a 

judgment, that is independent of and goes beyond the alteration 

requested by a party under Rule 59(e), might be reviewed under 

the standard of Rule 62(c). The problem is that the timely 

filing of a Rule 59(e) motion, which the Court believes has been 

done here, suspends the appeal process and renders Rule 62(c) 

technically inapplicable because the case is not on appeal. 

Absent appeal, a district court has complete power over its 

interlocutory orders. Ideal Toy Corp. v. Sayco Doll Corp., 302 
  

F.2d 623 (2nd Cir. 1962). 

It is important to note that this Court has consistently 

voiced its preference for the Texas authorities devising a plan 

for judicial elections consistent with the Voting Rights Act, 

with reasonable dispatch, and therefore has considered and styled 

its January 2, 1990 injunction as an interim plan. The Order is, 

of course, binding and effective if, and to the extent, the 

Legislature fails to act. If the Legislature devises an 

acceptable plan under the Voting Rights Act this lawsuit, and the 

Court’s injunction along with it, would likely become moot. Of 

course, an argument could be made that this Court’s interim plan 

of redistricting, because conditional in this sense, is not a 

judgment at all until the contingency has been removed, and 

 



  

therefore is not even appealable. In any event, this Court's 

overall plan of encouraging legislative redistricting is, the 

Court believes, relevant to considering, under the law of Rule 

62(c), what constitutes a modification of an injunction "in aid 

of appeal." 

In sum, the Federal Rules of Civil Procedure do not seem to 

provide a neat category for classifying motions on equitable 

remedies such as the one at issue. This Court is of the opinion 

that the Attorney General's Motion is one properly brought under 

Rule 59(e) because this Court’s Order of January 2, 1990 is a 

"judgment" within the meaning of Rule 54(a). However, in the 

event this characterization is error, as Judge Wood seems to 

contend it is, the Court believes it proper to apply the more 

restrictive analysis under Fed. R. Civ. P. Rule 62(b) as set out 

in cases cited by the parties. 

II. Alternatively, This Court Possesses Jurisdiction to Make 
  

Modifications to Its January 2, 1990 Order as Ordered Herein 
  

Pursuant to Rule 62(b), Fed. R. Civ. P. 
  

Judge Wood challenges this Court's jurisdiction to entertain 

a motion to modify its January 2, 1990 Order, and presumably as 

well the Court’s jurisdiction to modify said Order sua sponte. 

However, despite Judge Wood’s artful choice of quotations from 

pertinent case law, the Court is not persuaded that it lacks 

jurisdiction to make certain changes in its Order even if the 

injunction contained therein is properly on appeal. 

 



  

Once appeal is taken from an interlocutory judgment (as the 

Court assumes for discussion purposes that it has been here), 

Fed. R. Civ. P. 62(c) provides that "the court in its discretion 

may suspend, modify, restore or grant an injunction during the 

pendency of the appeal ...." The scope of this Court'’s power 

under Rule 62(c) has most recently been the subject of analysis 

by the Fifth Circuit in Coastal Corp. v. Texas Eastern Corp., 869 
  

F.24 817 .(5th Cir. 1989). Under the holding in Coastal, this 

Court is definitely constrained insofar it lacks authority to 

dissolve the injunction on appeal. Id. at 821. But regarding 

less radical modifications, the Court is directed to limit the 

exercise of its power to "maintaining the status quo." Id. at 

820. 

Judge Wood would have the Court interpret "maintaining the 

status quo" to mean that this court may do nothing except "in aid 

of the appeal." Billie v. Continental Oil Co., 746 F.2d 1041 
  

{5th Cir. 1984). The Fifth Circuit applied this directive in 

Willie to divest the District Court of jurisdiction to modify a 

judgment under Rule 60(b) because of inadvertence or excusable 

neglect, where substantive rights of the parties were at stake. 

Id. at 1045. In Willie, the parties sought to have the District 

Court correct its judgment to incorporate a mistakenly-omitted 

stipulation regarding the percentage of liability to be borne by 

one of the defendants. The District Court was empowered to deny 

such a motion because denial would be "in furtherance of the 

appeal". But had the District Court wished to grant the Rule 

 



60(b) motion, leave of the Court of Appeals would have been 

required. Id. at 1046. 

In the Coastal case, however, the Fifth Circuit seemed to 

impose a different standard of "maintaining the status quo," and 

defining that standard to mean that a district court may not take 

action, such as vacating an injunction, that would presumably 

divest the court of appeals from jurisdiction while the issue is 

on appeal. Coastal, supra, at 820. Cases cited in the Coastal 
  

opinion consistently deal with granting or staying injunctions 

during the pendency of appeal. Id. Consistent with the analysis 

expressed in the Attorney General’s brief, this Court interprets 

Coastal to say that it may not vacate the injunction now in issue 

while it is on appeal. No such action is contemplated. 

Even if the "in aid of appeal" standard set out in Willie 

should guide the Court, it would seem that the modifications now 

ordered, which primarily give the Legislature additional time to 

consider redistricting, does not violate that standard. 

Accordingly, this Court’s Order of January 2, 1990 will be 

amended. 

IT IS ORDERED that this Court’s Order of January 2, 

1990 be, and is hereby amended pursuant to the following 

directives only. 

Item numbered "6" at pages 6 and 7 is amended to read 

as follows:  



Elections shall take place on November 6, 

1990 with runoff elections, if and where 

necessary, on December 4, 1990. 

Item numbered "7" at page 7 is amended to read as 

follows: 

7. An application for a place on the non-partisan 

election ballot must be filed not later than 6:00 

p.m. on September 19, 1990. Except as modified 

herein, all provisions of the Texas Election Code 

shall be applicable to the non-partisan elections 

herein ordered. 

IT IS FURTHER ORDERED that any rights of expedited appeal 

granted in this matter be, and ars. lsreby RESCINDED. 
4 

SIGNED AND ENTERED this / —— day of January, 1990. 
Lm   

  

. {iy L 

Tai 5 4 wll TT 

LUCIUS D. BUNTON 
CHIEF JUDGE