Judge Entz's Witness List; Entz's Proposed Findings of Fact and Conclusions of Law; Judge Entz's Exhibit List

    . ’ 
HUGHES & LUCE 
2800 MOMENTUM PLACE 

1717 MAIN STREET 

  

DALLAS, TEXAS 75201 1500 FIRST STATE BANK BUILDING 

400 WEST 15TH STREET 

(214) 939-5500 AUSTIN, TEXAS 78701 

TELECOPIER (214) 939-6100 (512) 482-6800 

TELEX 730836 TELECOPIER (512) 474-4258 

Direct Dial Number 
(214) 939-5577 

September 11, 1989 

HAND DELIVERED 

Mr. John Neill 
United States Pistrict Court 
Western District of Texas 
Midland-O@essa Division 
316 U.S. Courthouse 
200East Wall Street 
Midland, Texas 79701 

Re: League of United Latin American Citizens (LULAC), 
et al. | Jim Mattox, et al., Civil Action 
MO 88 CA 154 

Dear Mr. Neill: 

Enclosed please find an original and two copies of the 
following documents for inclusion as attachments to the Joint 
Pretrial Order in the above-referenced action. 

i. Judge Entz's Exhibit List 
2. Judge Entz's Witness List 
3. Judge Entz's Proposed Findings of Fact and 

Conclusions of Law 

Please return file-marked copies to me in the enclosed 
envelope. Please note that copies of the above documents are 
being mailed certified mail return receipt requested to the 
other parties. 

If you have any questions, please call. Thank you. 

ery truly yours, 

David C. Godbey 

DCG/pai 

Enclosures 

 



  

CC: (CERTIFIED MAIL RRR) 

William L. Garrett 

Rolando Rios 
Susan Finkelstein 7 
Sherrill A. Ifillv/ 
Gabrielle K. McDonald 
Edward B. Cloutman, III 

E. Brice Cunningham 
Renea Hicks 
Ken Oden 

David R. Richards 

J. Eugene Clements 
Darrell Smith 
Michael J. Wood 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

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

Plaintiffs, 
CIVIL ACTION NO. 

Vv. MO 88 CA 154 

JIM MATTOX, et al., 

Defendants. C2
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= JUDGE ENTZ'S WITNESS LIST 

The following list of witnesses represents the witnesses 

that Judge Entz affirmatively intends to call to establish the 

fact issues Judge Entz believes are pertinent. Judge Entz 

reserves the right to designate additional witnesses as needed 

to respond to evidence introduced by plaintiffs in their case 

in chief or that may become necessary due to events or issues 

raised during the course of trial. 

1. Hon. F. Harold Entz -- Judge Entz will testify 

regarding his interest in this action, the present 

structure of the discrict court judicial system in 

Dallas County, and why he wanted to intervene. 

2. Hon. Carolyn Wright -- Judge Wright will offer 

expert opinions as disclosed in interrogatory 

answers and deposition and will also testify as a 

fact witness regarding the present structure of the 

district court judicial system in Dallas County and 

its merits, and her personal experiences in running 

JUDGE ENTZ'S WITNESS LIST -- PAGE 1 

 



    

successfully as a black, female, Republican judicial 

candidate. 

3. Hon. John McClellan Marshal -- Judge Marshall will 

offer expert opinions as disclosed in interrogatory 

answers and deposition and will also testify as a 

fact witness regarding the present structure of the 

district court judicial system in Dallas County and 

its merits, and his personal experiences in running 

successfully as a judicial candidate. 

4. Tom James -- Mr. James will offer expert opinions as 

disclosed in interrogatory answers and deposition 

and will also testify as a fact witness regarding 

his personal experiences in and his knowledge of 

Dallas County politics, particularly regarding 

judicial campaigns, partisan political issues, and 

his activities as chairman of the Dallas County 

Republican Party, and that Party's activities in 

recent years in recruiting minority candidates. He 

may also rebut testimony by Mr. Weiser. 

5. Prof. Anthony Champagne -- Prof. Champagne will 

offer expert opinions as disclosed in interrogatory 

answers and deposition. Prof. Champagne may also 

rebut testimony by Mr. Dan Weiser on behalf of 

plaintiffs. 

6. Prof. Greg Thieleman — 1f necessary, Prof. 

Thieleman will offer factual testimony regarding the 

JUDGE ENTZ'S WITNESS LIST -- PAGE 2 

 



  

methods used to prepare survey results relied upon 

by Prof. Champagne. 

7. Prof. Delbert Taebel -- Prof. Taebel will offer 

expert opinions as disclosed in interrogatory 

answers and deposition. Prof. Taebel is primarily a 

witness for the State Defendants, but to the extent 

his testimony relates to Dallas County, Judge Entz 

adopts it. 

8. Margaret Bonner -- If necessary, Ms. Bonner will 

testify regarding the mechanics of the preparation 

of some exhibits used by Prof. Champagne in his 

testimony. 

9. Judge Entz may call members of the Texas Legislature 

to rebut testimony regarding the purpose for the 

amendments to the Texas Constitution regarding 

judicial districts. 

Respectfully submitted, 

Evia} 
Ae 

  

Robert H. Mow, Jr. 

David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 

2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

(214) 939-5500 

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

JUDGE ENTZ'S WITNESS LIST -- PAGE 3 

 



  

ERTIFICATE OF SERV 

I certify that a true and correct copy of the foregoing 

I nie served upon all counsel of record by certified 

mail this day of tad 

  

JUDGE ENTZ'S WITNESS LIST -- PAGE 4 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

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

Plaintiffs, 
CIVIL ACTION NO. 

Vv. MO 88 CA 154 

JIM MATTOX, et al., 

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Defendants. 

JUDGE ENTZ'S PROPOSED FINDINGS OF 

FACT AND CONCLUSIONS OF LAW 

INDIN F FACT 

; Dallas County is a large, urban area with a 1980 

population of 1,556,419. The principal city of Dallas County 

is Dallas (1980 pop. 904,078); Dallas County includes several 

smaller incorporated cities such as Carrolton, Farmers Branch, 

Cedar Hill, Lancaster, Grand Prairie, and Garland. Dallas 

County in 1980 had approximately 286,100 blacks, 153,600 

Hispanics, and 1,116,719 persons classified as "other," who 

are primarily Anglos. Since 1980 Dallas County has become 

increasingly racially diverse, with Asian persons now totaling 

about 100,000 in number. 

2. Since 1980, there have been six black candidates for 

district judge in Dallas County, Texas. These six candidates 

have run in seven contested general elections and two 

contested primary elections. 

3. The black candidates won two of the contested general 

elections and both of the contested primary elections, for a 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 1 
  

 



  

total of four victories out of nine contested primary and 

general elections in Dallas County. 

4. In all instances in which a black candidate ran for 

district judge in Dallas County, the Republican candidate won 

the election regardless of the race of the candidate. 

5. In general, a Democratic candidate for district judge 

in Dallas County will get the votes of over ninety percent 

(90%) of the black voters but less than forty percent (40%) of 

the votes of the white voters, regardless of the race of the 

candidate. Black voters in Dallas County mirror black voters 

nationally in voting for Democratic candidates 90% of the time. 

6. Neither black Republican nor black Democratic 

candidates for district judge in Dallas County fare worse or 

better than candidates of their party generally. In fact, 

black Democratic candidates for district judge generally 

performed better than the "top of the ticket" Democratic 

candidates, and one of the black Republican judicial 

candidates, Judge Carolyn Wright, led all judicial candidates 

in Dallas County in 1986. 

7. Judicial elections are not prominent elections in 

Dallas County. Only a very small minority of voters can 

recognize the name of judicial candidates, fewer still can 

recognize what office that name is associated with or the 

ethnicity of that person. In the vast majority of cases, the 

vast majority of voters are wholly unaware of the race of 

judicial candidates and thus their votes of necessity are 

unrelated to the race of the candidate. 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 2 
  

 



  

8. Straight ticket voting is the practice in which a 

voter indicates a partisan preference on the ballot, rather 

than voting in each individual race. In the election returns, 

a straight ticket vote is reflected as a vote for all 

candidates of the selected party. Black voters in Dallas 

County vote primarily straight ticket Democratic, as they have 

been long encouraged to do by the Democratic party. Both a 

bivariate ecological regression analysis and a homogeneous 

precinct analysis indicate that in 1988, almost ninety percent 

(90%) of black voters in Dallas County voted straight ticket 

Democratic. 

9. In view of the high amount of straight ticket voting 

by black voters in Dallas Cont, together with the relative 

lack of awareness of judicial campaigns and candidates, the 

reality of voting patterns of blacks in judicial races shows 

that there is no meaningful "choice" of particular candidates 

by black voters in judicial elections. It thus is not valid 

to conclude that any individual Democratic judicial candidate 

in Dallas County is the "candidate of choice" of black voters 

in Dallas County. The most that can be said is that such a 

candidate is a member of the political party of choice of 

black voters in Dallas County. 

10. Black judicial candidates in Dallas County have an 

equal opportunity with Hispanic and Anglo candidates to be 

selected by voters as the choice of their preferred political 

parties in primary elections. In general judicial elections 

today, Republican candidates will normally win judicial 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 3 
  

 



  

district elections without regard to race or creed. No black 

is excluded from the power or the right to vote for a 

candidate of his or her choice, nor is any black's vote 

diluted because of the present system. 

1. Black Democratic judicial candidates have lost 

elections in Dallas County in recent years because they ran as 

Democrats; they have been solicited to run as Republicans, 

where they have a reasonable chance to win, but they have 

declined. 

12. Virtually all voters in Dallas County consider the 

race of a candidate for district judge to be unimportant in 

determining which candidate they will support. 

13. Because of the Yow voter awareness of district court 

races, election results in other higher profile races, such as 

mayor, district attorney, regional mass transit, and statewide 

races are not probative of voting patterns in district court 

races in Dallas County. The Court places a low probative 

value on proof relating to elections other than district court 

elections. 

14. The district bench in Dallas County has changed from 

100% Democratic in 1976 to 97% Republican by 1988. The sole 

Democratic district judge shares the same name as a Very 

popular disk jockey for a prominent radio station. The period 

from 1976 to 1988 has seen Dallas County change in essence 

from a one-party Democratic county to a one-party Republican 

county. 

JUDGE _ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 4 
  

 



    

15. Electoral success in contested district judge races 

in Dallas County depends primarily upon partisan affiliation, 

and not upon the race of the candidates. 

16. Based on the foregoing findings, Dallas County is 

not characterized by racially polarized block voting, but is 

characterized by partisan polarized voting. 

17. Dallas County has had significant demographic 

changes since the 1980 census. Demographic data from the 1980 

census is insufficient to establish by a preponderance of the 

evidence any voting trends by race for the last half of the 

decade. 

18. Judges in Texas are required to be members of the 

bar for at least four years. Blacks approximately two percent 

(2%) of the legally qualified pool of potential judicial 

candidates in Dallas County. Blacks comprise almost six 

percent (6%) of the district judges in Dallas County. In 

determining whether blacks have achieved electoral success in 

proportion to their numbers, the more pertinent comparison in 

to the pool of legally qualified candidates. Blacks are 

overrepresented on the Dallas County district court bench in 

comparison to their numbers in the pool of legally qualified 

candidates. 

15. The single best predictor of the percentage of 

minority judges is the percentage of minority lawyers in the 

relevant area. The relatively lower number of minority judges 

in Dallas County compared to minorities in the population as a 

whole is not caused by the current system of electing judges 

DGE ENTZ'S PROPOSED FINDI AND NCLUSIONS -- PAGE 

 



  

in Dallas County. It is, rather, caused by the relatively 

lower number of legally qualified minority lawyers in Dallas 

County. As the number of minority lawyers increases due to 

increasing minority enrollment in law school, the number of 

minority judges should also increase. 

20. The current system of court administration in Dallas 

County has evolved to meet a variety of significant policy 

concerns, including: conforming to constitutional requirements 

to provide a fair and impartial jury representing a 

cross-section of the community; efficiently utilizing members 

of the jury venires; providing for specialization within 

district courts whereby each district court hears primarily 

civil, criminal, family, I juvenile matters (and is so 

designated by law); providing a mechanism for easily 

equalizing differences in court dockets; and generally 

providing for the efficient administration of Dallas County 

courts through providing centralized services and facilities. 

Additionally, county-wide elections for district courts 

reflect a traditional policy in Texas that the county 

government is the fundamental unit of state government at the 

local level. This policy dates back to the days of the Texas 

Revolution. 

21. It would make a mockery of the present Dallas County 

system of specialized courts -- civil, criminal, family, and 

juvenile -- to require that certain smaller-than-county 

districts" elect the specialized judges to those courts (with 

county-wide jurisdiction), and it would affirmatively 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 6 
  

 



  

discriminate against the non-electing voters in the balance of 

the county. 

22. Creation of non-overlapping single member judicial 

districts in Dallas County if coupled with altering judicial 

specialization, venue and jury selection to conform to 

district lines would significantly disrupt the policies 

supported by the current system of court administration in 

Dallas County as described above. It would also increase 

parochialism of judges and would lead to undesirable forum 

shopping. 

23. Conversely, creation of non-overlapping single 

member districts in Dallas County without altering judicial 

specialization, venue, and Sury selection would run contrary 

to the policies supporting an elected judiciary, in that the 

general rule would no longer be that persons are entitled to 

vote in the elections of judges before whom disputes touching 

on their lives are normally heard. Although voters in Dallas 

County and Texas are often not aware of judicial races, the 

presence of elections provides a negative check on 

irresponsible judicial behavior that is important due to its 

existence, even if rarely used. This theoretical underpinning 

for judicial elections becomes attenuated when the geographic 

area of jurisdiction for district courts is different from the 

geographic area in which the judge is elected. In effect, all 

other voters in Dallas County would be disenfranchised by such 

a system. Furthermore, there is no rational basis under which 

specialized courts «could be assigned to any particular 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 7 
  

 



  

district. Thus, the disenfranchising effect would be 

compounded by the fact that voters in a district would be able 

to elect only a civil, criminal, family, or juvenile court 

judge. 

24. Additional adverse consequences follow under either 

alternative. Under current Texas law, judges have to be 

residents of the district, and the actual courthouse must be 

within the district. Thus, absent a state constitutional 

amendment, there would be massive dislocation of existing 

judges due to the residency requirement and immense expense 

incurred in duplicating court facilities. Non-overlapping 

single member districts would increase the risk that 

particular Jjudges would be obligated to strong interests 

within their respective districts, and thereby increase the 

risk of corruption on the district bench. Finally, creation 

of additional district courts in response to increased 

caseload would result in major difficulties in redistricting 

counties between the decennial censuses. 

25. Plaintiffs did not prove that the historic Dallas 

County system of electing district judges on a county-wide 

basis is tenuous or maintained as a pretext for 

discrimination. To the contrary, evidence showed the system 

has been continually improved and changed organizationally 

over the years to furnish an efficient, constitutional system 

of justice, with specialized courts to meet the needs of an 

urban county. 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 8 
  

 



  

26. The administration of courts is a prime example of 

one of the functions of a sovereign state under our federal 

form of government. As discussed above, the imposition of 

non-overlapping single member districts would seriously impair 

the exercise of that sovereign function by the State of Texas. 

27. If the Court were to order non-overlapping single 

member districts in Dallas County, and if the political sands 

were suddenly to shift, as they have in the past, and black 

voters were to prefer Republicans or white voters were again 

to prefer Democrats, this Court would have destabilized and 

radically changed a presently color-blind and successfully and 

efficiently run judicial system for nothing. 

28. It would be Wasteiul and disruptive to the present 

system of judicial selection and administration in Dallas 

County to require changing to non-overlapping single member 

districts, particularly since there is no factual showing of 

unequal access for blacks to the electoral process in Dallas 

County. 

29. In a multi-member deliberative body, the purpose of 

single member districts is to provide members of that body who 

are especially aware of the interests and concerns of the 

citizens from the district from which they were elected and 

will advocate those concerns, so that in the collective 

decisionmaking of the body all of the interests of the 

populace would be vicariously represented by the aggregate of 

the representatives. Thus, the collective decisionmaking 

process would reflect all of the interests of the community. 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 9 
  

 



  

30. In a position, such as a district court, in which 

there is no collective decisionmaking, there is not any need 

for the form of collective interest representation found in a 

deliberative body. Each individual judge is responsible fully 

to act on behalf of the entire community. Furthermore, each 

individual district bench operates autonomously from the other 

district benches within that county in that each court 

maintains its own docket and resolution of each court's docket 

takes place independently from the other district courts 

within that county. Thus, for purposes of the Voting Rights 

Act, the existing judicial districts in Texas are all already 

single member districts. 

31. The State of Tezas does not presently in any form 

officially discriminate in any manner that prevents or impairs 

the rights of minorities to register, vote, or otherwise 

participate in the political process. 

32. Dallas County is not an "unusually large" election 

district for the election of district judges charged with 

administering and dispensing justice. Dallas County by law 

has a well-thought out system for handling the judicial needs 

of a large, ethnically diverse, urban county in 1989, with its 

administrative judge provision, its jury venire system, its 

specialized courts system, its venue system, and its 

county-wide election and voter registration system. Justice 

is and historically has been administered on a county-wide 

basis. The number of citizens in Dallas County who are 

subject to this system, as compared to the population size of 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 10 
  

 



  

other states, is totally irrelevant to VRA § 2 decisions. The 

size of Dallas County in terms of geography or population in 

no way dilutes black electoral opportunity or participation. 

Dividing up the county into smaller political patronages for 

electing judges flies in the face of sound judicial policy for 

an urban area like Dallas County in its struggles and efforts 

to meet the judicial needs of all of its black, Hispanics, 

white, Asian, American Indian and other citizens. 

33. In view of the practical and historic bases for the 

county being the fundamental unit of local state government in 

the State of Texas, as discussed above, counties are not 

unusually large election districts for district judges. 

Although district judges nist be elected by majority vote, 

neither that nor any other particular voting practices or 

procedures enhance the opportunity for discrimination against 

blacks. 

34. "Slating"” is the creation of a package or slate of 

candidates, before filing for office, by an organization with 

sufficient strength to make the election merely a stamp of 

approval of the pre-ordained candidate group. See Overton v.   

City of Austin, 871 F.24 529, 534 (5th Cir. 1989). 

35. The Republican Party in Dallas County has no direct 

control over who can file, run, or win in the Republican 

primary. Officials in the Dallas County Republican Party are 

scrupulous not to take sides in primary contests. The 

Republican Party takes aggressive steps to encourage 

participation and candidacies by minorities. Indeed, in the 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 11 
  

 



  

only contested primaries for district judge in which 

minorities have run, the minority candidates have won. Thus, 

the Republican Party is not a slating organization in Dallas 

County. 

36. The best predictor of the percentage of minority 

judges is the percentage of minority lawyers. Although the 

percentage of minority lawyers is presently small, the 

percentage of minority law students has been increasing over 

time, and the percentage of minority lawyers should thus be 

expected to increase as those students graduate and enter the 

bar. And as those young minority lawyers obtain the requisite 

experience, the percentage of minority judges will increase to 

reflect the percentage of minority lawyers and the overall 

percentage of minorities in the community. Thus, although 

minorities in Dallas County presently may bear detriments of 

prior discrimination in Texas, that prior discrimination will 

not hinder their ability to participate in the political 

processes relating to the election of district judges. 

37. Elections for district judge in Dallas County are 

not typically characterized by racial appeals. The only clear 

evidence that could be a racial appeal was Charles Ben 

Howell's characterization of his black opponent as the 

"affirmative action candidate." The Court finds that Charles 

Ben Howell's characterization was an aberration and does not 

reflect the typical conduct of judicial elections in Dallas 

County. 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 12 
  

 



  

38. The totality of the circumstances in Dallas County 

fails to demonstrate that county-wide judicial election 

districts minimize or cancel out the ability of blacks to 

elect their preferred candidates. Actually, the circumstances 

show that black judicial candidates can and do win county-wide 

if they run as a member of the present predominant political 

party, the Republicans. Nothing exists to prevent any legally 

qualified black candidate from doing just that, and each 

Dallas County Plaintiff-Intervenor was offered just that 

opportunity, and declined. 

39. No party has made an issue of responsiveness. The 

Court finds that responsiveness is not a proper factor for 

consideration in the context of judicial elections, in which 

the elected candidates are not intended to be "responsive," 

but are intended to decide cases evenhandedly based on the 

facts and the law applicable to each individual case. 

40. Plaintiffs and plaintiff-intervenors introduced no 

evidence on Hispanic claims or voting practices with respect 

to Dallas County. 

41. The present system of electing district judges 

within the State of Texas was neither established nor 

maintained for the purpose or with the intent of 

discriminating against minorities. 

LUSION F LAW 

1. The Court has jurisdiction over this action. 

2. Section 2 of the Voting Rights Act ("VRA § 2") does 

not apply to elections for district judge in the State of 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 13 
  

 



  

Texas because those district judges do not participate in any 

kind of collective deliberative body, and thus are not 

“representatives” within the meaning of VRA § 2+ Holshouser 

v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), aff'd, 409 U.S. 

907 (1972). The Court recognizes the Fifth Circuit's opinion 

839 F.2d 1056, cert. denied, 109 S. Ct. 

390 (1988) ,but finds it is distinguishable, because it did not 

address the circumstances of district courts, and instead 

addressed appellate courts, which do engage in a collective 

deliberative process. 

3. Within VRA § 2, a finding of racially polarized 

voting requires a showing that the race of the candidate 

affects the outcome of the election, i.e., in the. case of 

Dallas County, that blacks are politically cohesive and 

generally vote together for a black candidate of their choice, 

but that the majority votes together cohesively against the 

black candidate in sufficient numbers usually to defeat the 

black candidate. hor rq v. Gingles, 478 U.S. 30, 83 (1986) 

(White, J., concurring); Citizens for a Better Gretna v. City 
  

of Gretna, 834 F.2d 496 (5th Cir. 1987). Elections for 

district judge in Dallas County are not characterized by 

racially polarized block voting. Rather, the black community 

in Dallas County consistently votes for the Democratic 

candidate, without regard for that candidate's race, and the 

rest of the community (Anglo, Asian and some Hispanic) 

consistently vote for the Republican candidate without regard 

for that candidate's race. 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 14 
  

 



  

4, Alternatively, if "racially polarized voting" under 

VRA § 2 is determined independent of the race of the 

candidate, then VRA § 2 is unconstitutional as an 

impermissible intrusion into the political process in 

violation of the Fourteenth Amendment and an impermissible 

exercise of Congress’ authority under the Fifteenth 

Amendment. i Vv 3 , “446 U.S. 55 (1980); ‘United 

Jewish Organizations of Williamsburgh v,., Carey, 430 U.S. 144 
  

(1977); Whi ¥. R r, 412 U.S. 124 (1973); ¥hltcomb Vv, 
  

Chavis, 403 U.S. 124 (1971). 

5. Relief under VRA § 2 in the case of Dallas County 

requires a showing that the challenged act or practice caused 

the reduced opportunity of blacks to elect candidates of their 

choice. whitfield v. Democratic Party of the State of 
  

Arkansas, 686 F. Supp. 1365, 1382 (E.D. Ark. 1988). The lower   

percentage of black judges in Dallas County than the overall 

percentage of black citizens in Dallas County was not caused 

by the present system of judicial selection. 

6. Alternatively, if VRA § 2 provides a remedy when the 

challenged practice is not the cause of reduced opportunity of 

minorities to elect candidates of their choice, then VRA § 2 

is an unconstitutional affirmative action program designed to 

provide relief upon a showing that a change in an electoral 

practice would increase the number of successful black 

candidates. Citv of Richmond. v. Crosson, 109 8S. Ct. 1706 
  

(1989); Regents of the University of California v. Bakke, 438 
  

U.S. 265 (1978). 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 15 
  

 



  

7. District judges in Texas are already elected from 

single member districts within the meaning of VRA S$ 2. Thus, 

plaintiffs fail the first prong of the Gingles test because 

they cannot show that they are large enough to constitute a 

majority within the single member districts, i.e., the 

challenged counties. Gingles at 47-52. 

8. In determining the degree to which minorities have 

achieved electoral success under VRA § 2, the appropriate 

comparison is the percentage of minorities in the pool of 

legally qualified candidates. Wards Cove Packing Co. Inc. Vv. 
  

Atonio, 57 U.S.L.W. 4583 (1989). Blacks in Dallas County have 

achieved electoral success in races for district judge in 

excess of their representation in ‘the pool of legally 

qualified candidates in Dallas County. 

9. A remedy in which non-overlapping single member 

districts are created without altering Texas' existing system 

of judicial specialization, venue, and jury selection would be 

unconstitutional because: (a) there is no rational basis for 

allocating specialized districts among the various single 

member districts and, therefore, would deny the members of 

each district equal protection of the laws, U.S. Const. amend. 

XIV; (b) voters in districts would be unconstitutionally 

disenfranchised and prohibited from voting in elections for 

district judges in other districts who would be deciding cases 

from the voters' districts, Cipriano v. City of Houma, 395 

U.S. 701 (1969); Phoenix v. Kolodzieiski, 399 U.S. 304 (1970); 

  

and (c) preservation of county-wide jury pools in conjunction 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 16 
  

 



  

with smaller judicial districts would violate the 

constitutional right to a jury from the district in which the 

offense arose (in criminal cases), U.S. Const. amend. VI; 

United States v. Dickie, 775 F.2d 607 (5th Cir. 1985), or from 

the district in which the case is pending (in civil cases). 

10. A remedy in which non-overlapping single member 

districts are created and the existing systems of judicial 

specialization, jury selection and venue are altered would be 

an unconstitutional intrusion by the federal government into 

matters of extreme importance to the sovereign state 

government, in violation of the Tenth Amendment, the Guaranty 

Clause, and fundamental principles of federalism. Griffin v. 
  

Breckenridge, 403 U.S. 88 (1971); v. Smith, 221 U.S. 559 

(1911). 

11. An electoral act or practice cannot violate VRA § 2 

if altering that electoral act or practice would violate the 

constitution. On these facts there is no constitutionally 

permissible remedy. 

12. The Court has previously discussed individually 

several of the factors pertinent to analysis of claims under 

VRA § 2 in connection with Dallas County. The Court holds 

that plaintiffs have not shown that the other factors -- 

history of official discrimination, existence of unusually 

large election districts or other voting practices, existence 

of slating processes, extent minorities presently bear the 

burden of prior discrimination, existence of racial appeals in 

campaigns, responsiveness, and strength of the policy 

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 17 
  

 



  

underlying the current system -- support relief in Dallas 

County. Gingles, supra. 

13. Considering all of the factors, the Court finds that 

the system of electing district judges in Dallas County does 

not violate VRA § 2. Id. 

14. Alternatively, because an action directly under the 

Fourteenth and Fifteenth Amendments requires a showing of 

discriminatory intent, and because congressional authority to 

enact enforcement legislation under the Fourteenth and 

Fifteenth Amendments is restricted to the scope of those 

amendments, the Court finds that the "results test” embodied 

in VRA § 2 exceeds the constitutional grant of enforcement 

authority under the Fourteenth and Fifteenth Amendments, and 

that VRA § 2 is therefore unconstitutional. Qregon Vv. 
  

Mitchell, .400 U.S. 112 (1970). 

15, Plaintiffs have failed to show that they are 

entitled to relief under the Fourteenth and Fifteenth 

Amendments because they have failed to show discriminatory 

intent. Mobile v. Bolden, supra. 

16. Alternatively, if district judges in Texas are 

"representatives" within VRA § 2, then VRA § 2 as applied is 

unconstitutional because it violates the Tenth Amendment, the 

Fourteenth Amendment, the Guaranty Clause, and fundamental 

principles of federalism and separation of powers. jffin v 

Breckenridge, 403 U.S. 88 (1971); Coyle v. Smith, 221 U.S. 559 
  

{i%11). 

JUDGE _ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 18 
  

 



  

Respectfully submitted, 

lr Aly 
Robert H. Mow, Jr. 

David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

  

of HUGHES & LUCE 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

(214) 939-5500 

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

ERTIFICATE ERV 

I certify that a true and correct copy of the foregoing 

instrument ‘AS served upon all counsel of record by certified 

mail this // = day of September, 1989. 

Lal 
ee 

  

JUDGE ENTZ'S PROPOSED FINDINGS AND CONCLUSIONS -- PAGE 19 
  

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS 

(LULAC), et al., 

Plaintiffs, 
CIVIL ACTION NO. 

v. MO 88 CA 154 

JIM MATTOX, et al., 

C2
3 
C
I
P
I
 

CQ
 

LP
I 

CO
I 
C
P
I
)
 

LA
I 

LA
I 

Defendants. 

JUDGE ENTZ'S EXHIBIT LIST 

The following list of exhibits represents the exhibits 

that Judge Entz affirmatively intends to introduce into 

evidence to establish the fact issues Judge Entz believes are 

pertinent. Judge Entz reserves the right to designate 

additional exhibits as needed to respond to evidence 

introduced by plaintiffs in their case in chief or that may 

become necessary due to events or issues raised during the 

course of trial. 

1. Vita of Prof. Anthony Champagne 

2 Survey of Dallas County voters ("Dallas Survey") 

3. Chart of name recognition from Dallas Survey 

4. Chart of office recognition from Dallas Survey 

5. Chart of race recognition from Dallas Survey 

6. Table of factors from Dallas Survey 

7. List of district judges in Dallas County, 1976-88 

8. Chart of partisan affiliation of district judges in 

Dallas County, 1976-88 

JUDGE ENTZ'S EXHIBIT LIST -- 1 

 



  

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

Tabulation of «county-wide election returns in 

contested judicial primary and general elections 

with a black candidate, 1980-88 

1f necessary, supporting data from Dallas County 

elections office for item 9. 

List of contested judicial elections in Dallas 

County, indicating victor, incumbency, and partisan 

affiliation, 1976-88 

Chart of percentage of Republican victories in 

contested judicial elections in Dallas County, 

1976-88 

Chart of number of contested judicial elections in 

Dallas County, 1976-88 

Spreadsheet showing by precinct straight party 

voting together with demographic data, regression 

analysis, and homogeneous precinct analysis 

If necessary, supporting data from Dallas County 

elections office for item 14. 

Dallas Times Herald, 5/5/86, page 8-A, article 

regarding Charles Ben Howell 

Dallas Morning News, 10/30/88, page 48-A, article 

regarding Charles Ben Howell 

Charts comparing ethnic composition of Dallas 

County, lawyers in Dallas County, and district 

judges in Dallas County 

JUDGE ENTZ'S EXHIBIT LIST -- 2 

 



  

19. 

20. 

21. 

22. 

23. 

If necessary, supporting data from Census Bureau, 

Dallas Bar Association, and State Bar of Texas for 

item 18. 

Map of Dallas County 

Excerpts from Texas Almanac pertinent to Dallas 

County 

Chart of aspects of present Dallas County district 

court judicial system 

Judge Entz incorporates by reference such exhibits 

as may be offered by the State Defendants to the 

extent they relate to Dallas County 

Respectfully submitted, 

lt 
> 

  

Robert H. Mow, 

David C. Vii ed 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

JUDGE ENTZ'S EXHIBIT LIST -- 3 

 



  

CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing 
instrument wag served upon all counsel of record by certified 
mail this day of September, 1989. 

( 

JUDGE ENTZ'S EXHIBIT LIST -- 4