Joint Motion on Interim Attorneys Fees; Proposed Order on Interim Fees

    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. on
 

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JOINT MOTION ON INTERIM ATTORNEYS FEES 

The private attorneys for the plaintiffs, the private attorneys for the 

plaintiff-intervenors from Dallas County and the private attorney for the 

plaintiff-intervenors from Harris County,! and Jim Mattox, the Attorney 

General of Texas on behalf of the State of Texas, submit this Joint Motion on 

Interim Attorney Fees, as follows: 

I. 

The plaintiffs filed this case on July 11, 1988. The case was tried to 

the Court on September 18-22, 1989. On November 8, 1989, this court 

rendered its liability decision and made findings of fact and conclusions of 

law. In the November 8th decision, the court found violations of Section 2 

in all challenged judicial districts but found no constitutional violations.? 

On January 2, 1990, the Court enjoined further primary and general 

elections under the existing electoral system in the targeted counties. It 

ordered implementation on an interim basis of a new system for 115 judicial 

  

! In March, 1989, this court granted intervenor status to two parties as plaintiff- 

intervenors: (a) the Houston Lawyers Association and others based in Harris County; and (b) 

Jesse Oliver, a former state district judge, and others based in Dallas County. 

4 Orders of November 27. 1989, and December 26 and 28, 1989, modified the November 

8th decision, but left its liability determination intact. 

 



  

district elections scheduled for 1990. The Fifth Circuit stayed these 

~ orders. Defendant State Officials filed notices of appeal on January 11, 

1990, and January 12, 1990. The Fifth Circuit expedited the briefing 

schedule on February 1, 1990. 

This case has been in litigation for close to two years and completion 

of -.the appellate process (through the United States Supreme Court) will 

take at least another two years. 

II. 

Movants recognize that Congress and the United States Supreme 

Court have held that interim awards of attorneys fees are appropriate under 

42 U.S.C. § 1988. See Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980) 

("It is evident also that congress contemplated the award of fees pendente 

lite in some cases."); Bradley v. School Board of City of Richmond, 416 U.S. 

696, 723 (1974) ("To delay a fee award until the entire litigation is 

concluded would work substantial hardship on plaintiffs and their counsel . . 

.."). The Fifth Circuit in James v. Stockham Valves & Fittings Co., 559 F.2d 

310, 358-59 (5th Cir. 1977) ("James"), held that an award of interim fees is 

appropriate to private attorneys where they have played a key role in 

vindicating the rights of plaintiffs (through a favorable decision on liability 

issues), as a matter of public policy, in order to prevent a cash-flow problem 

for plaintiffs and their attorneys and to prevent the danger that defendants 

"may be tempted to seek victory through an economic war of attrition 

against the plaintiffs.” Id. 

  

3 Early on January 11, 1990, acting on emergency applications, the Fifth Circuit stayed 

this Court's January 2nd order. Later that day, this Court modified the 1990 election dates 

established in its January 2nd order, moving them from May and June to November and 

December. The next day, the Fifth Circuit extended its stay order to cover this Court's January 

11th modification order and denied a LULAC motion to halt the upcoming judicial elections. 

-2- 

 



III. 

  

Recognizing that the private attorneys for the plaintiffs and plaintiff- 

intervenors have achieved a successful judgment on the issue of liability in 

this case, the State of Texas agrees to pay interim attorneys fees to the 

private attorneys for the plaintiffs (William L. Garrett, Rolando L. Rios, and 

Brenda Hull Thompson), to the private attorneys for the Dallas plaintiff- 

intervenors (Edward B. Cloutman and E. Brice Cunningham), and to the 

private attorney for the Houston plaintiff-intervenors (Gabrielle K. 

McDonald) in the following amounts: $108,000.00 for Rolando L. Rios, $ 

90,000.00 for William L. Garrett, $34,000.00 for Gabrielle K. McDonald, 

$28.089.00 for Edward B. Cloutman, $4,500.00 for E. Brice Cunningham, 

and $9,000.00 for Brenda Hull Thompson. Therefore, under this motion, 

the total interim attorneys fee award is $273,589.00. 

This agreement does not include costs and expenses. Moreover, the 

figures quoted in the above paragraph constitute 40% of the total attorneys 

fees sought by the private attorneys through the trial of this case in 

September 1989. The parties to this agreement also recognize that in the 

event that the plaintiffs and plaintiff-intervenors are successful on appeal the 

"amount [paid] will of course be subtracted from the sum finally awarded for 

attorneys’ fees for the full course of the litigation." James, 559 F.2d at 359. 

IV. 

Nothing in this motion shall in any way prevent the State of Texas 

from challenging the prevailing party status of the plaintiffs or the plaintiff 

intervenors under Hensley v. Eckerhart, 461 U.S. 424 (1983), and its 

progeny in the event of an adverse order at the conclusion of the appellate 

stage of this litigation. Nothing in this motion shall in any way prevent the 

State of Texas from challenging the reasonableness of the total hours or 

3 

 



hourly rate of the plaintiffs or the plaintiff-intervenors under Johnson v. 

Georgia Highway Express, Inc., 488 F.2d 714 (1974), and its progeny. 

Nothing in this motion shall in any way prevent the State of Texas from 

instituting collection proceedings for the amounts paid in the event the 

plaintiffs and plaintiff-intervenors are not successful at the conclusion of the 

appellate stage of this litigation. --. 

On the other hand, nothing in this motion shall in any way prevent the 

attorneys for the plaintiffs or the attorneys for the plaintiff-intervenors from 

modifying their request for further attorneys fees, as allowed by law, in the 

event of success at the conclusion of the appellate stage of this litigation. 

Also, nothing in this motion shall in any way prevent the attorneys for Texas 

Rural Legal Aid or the National Association for the Advancement of Colored 

People from seeking attorneys fees, costs, and expenses as allowed by law. 

V. 

Based upon the foregoing matters, the plaintiffs, the plaintiff- 

intervenors, and the Attorney General of Texas on behalf of the State of 

Texas urge the Court to grant this Joint Motion. 

Respectfully submitted, 

Jim Mattox 
Attorney General of Texas 

Mary F. Keller 
First Assistant Attorney General 

Renea Hicks 
Special Assistant Attorney General 

   



  

Assistant Attorney General 

P. O. Box 12548 
Austin, Texas 78711 
(512) 463-2025 

Attorneys for the State of Texas 

Pl i 
Rolando L. Rios’ 
William L. Garrett 

  

  

Law Offices of Rolando Rios. 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

(512) 222-2102 . 

Private Attorneys for Plaintiffs 
and, for This Agreement, on 
Behalf of the Private Attorneys 
for Dallas Plaintiff-Intervenors 
and the Private Attorney for 
Harris Plaintiff-Intervenors 

CERTIFICATE OF SERVICE 

  
I certify that on this Z & 74 day of March, 1990, I sent a copy of the 

foregoing document by first class mail to each of the following: William L. 

Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 

75225: Rolando Rios, 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, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward 

B. Cloutman, III, 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 Robert H. Mow, Jr., 

Hughes & Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 

75201. “x, ; 2. 

i     
  

Rolando L. Rios 

 



CERTIFICATE OF CONFERENCE 

  

I hereby certify that on March 21, 1990, I discussed the issue of 

~ seeking interim fees with attorneys for defendant-intervenors Judge Entz 

and Judge Wood and they indicated that they had no objection to our 

23 ry 
  

Rolando L. Rios 

 



4 

) » 

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. on

 
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JOINT MOTION ON INTERIM ATTORNEYS FEES 

The private attorneys for the plaintiffs, the private attorneys for the 

plaintiff-intervenors from Dallas County and the private attorney for the 

plaintiff-intervenors from Harris County,! and Jim Mattox, the Attorney 

General of Texas on behalf of the State of Texas, submit this Joint Motion on 

Interim Attorney Fees, as follows: 

1. 

The plaintiffs filed this case on July 11, 1988. The case was tried to 

the Court on September 18-22, 1989. On November 8, 1989, this court 

rendered its liability decision and made findings of fact and conclusions of 

law. In the November 8th decision, the court found violations of Section 2 

in all challenged judicial districts but found no constitutional violations.? 

On January 2, 1990, the Court enjoined further primary and general 

elections under the existing electoral system in the targeted counties. It 

ordered implementation on an interim basis of a new system for 115 judicial 

  

! In March, 1989, this court granted intervenor status to two parties as plaintiff- 
intervenors: (a) the Houston Lawyers Association and others based in Harris County; and (b) 

Jesse Oliver, a former state district judge, and others based in Dallas County. 

4 Orders of November 27, 1989, and December 26 and 28, 1989, modified the November 

8th decision, but left its liability determination intact. 

 



  

district elections scheduled for 1990. The Fifth Circuit stayed these 

orders. Defendant State Officials filed notices of appeal on January 11, 

1990, and January 12, 1990. The Fifth Circuit expedited the briefing 

schedule on February 1, 1990. 

This case has been in litigation for close to two years and completion 

of .the appellate process (through the United States Supreme Court) will 

take at least another two years. 

II. 

Movants recognize that Congress and the United States Supreme 

Court have held that interim awards of attorneys fees are appropriate under 

42 U.S.C. § 1988. See Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980) 

("It is evident also that congress contemplated the award of fees pendente 

lite in some cases."); Bradley v. School Board of City of Richmond, 416 U.S. 

696, 723 (1974) ("To delay a fee award until the entire litigation is 

concluded would work substantial hardship on plaintiffs and their counsel . . 

."). The Fifth Circuit in James v. Stockham Valves & Fittings Co., 559 F.2d 

310, 358-59 (5th Cir. 1977) ("James"), held that an award of interim fees is 

appropriate to private attorneys where they have played a key role in 

vindicating the rights of plaintiffs (through a favorable decision on liability 

issues), as a matter of public policy, in order to prevent a cash-flow problem 

for plaintiffs and their attorneys and to prevent the danger that defendants 

"may be tempted to seek victory through an economic war of attrition 

against the plaintiffs." Id. 

  

Re Early on January 11, 1990, acting on emergency applications, the Fifth Circuit stayed 
this Court's January 2nd order. Later that day, this Court modified the 1990 election dates 
established in its January 2nd order, moving them from May and June to November and 
December. The next day, the Fifth Circuit extended its stay order to cover this Court's January 
11th modification order and denied a LULAC motion to halt the upcoming judicial elections. 

0. 

 



  

III. 

- ~ ~ Tv L~ ~ ™S tye 

Reco gnizing that thie priv Gio attorneys for the plaintiffs and plat: 1t1 ff- 

intervenors have achieved a successful judgment on the issue of liability in 

this case, the State of Texas agrees to pay interim attorneys fees to the 

private attorneys for the plaintiffs (William L. Garrett, Rolando L. Rios, and 

Brenda Hull Thompson), to the private attorneys for the Dallas plaintiff- 

intervenors (Edward B. Cloutman and E. Brice Cunningham), and to the 

private attorney for the Houston plaintiff-intervenors (Gabrielle K. 

McDonald) in the following amounts: $108,000.00 for Rolando L. Rios, $ 

90,000.00 for William L. Garrett, $34,000.00 for Gabrielle K. McDonald, 

$28,089.00 for Edward B. Cloutman, $4,500.00 for E. Brice Cunningham, 

and $9,000.00 for Brenda Hull Thompson. Therefore, under this motion, 

the total interim attorneys fee award is $273,589.00. 

This agreement does not include costs and expenses. Moreover, the 

figures quoted in the above paragraph constitute 40% of the total attorneys 

fees sought by the private attorneys through the trial of this case in 

September 1989. The parties to this agreement also recognize that in the 

event that the plaintiffs and plaintiff-intervenors are successful on appeal the 

"amount [paid] will of course be subtracted from the sum finally awarded for 

attorneys' fees for the full course of the litigation." James, 559 F.2d at 359. 

IV. 

Nothing in this motion shall in any way prevent the State of Texas 

from challenging the prevailing party status of the plaintiffs or the plaintiff- 

intervenors under Hensley v. Eckerhart, 461 U.S. 424 (1983), and its 

progeny in the event of an adverse order at the conclusion of the appellate 

stage of this litigation. Nothing in this motion shall in any way prevent the 

State of Texas from challenging the reasonableness of the total hours or 

3. 

 



  

hourly rate of the plaintiffs or the plaintiff-intervenors under Johnson wv. 

- 
Georgia Highway Express, Inc., 488 F.2d 714 (1974), 2nd its progeny 

Nothing in this motion shall in any way prevent the State of Texas from 

instituting collection proceedings for the amounts paid in the event the 

plaintiffs and plaintiff-intervenors are not successful at the conclusion of the 

appellate stage of this litigation. -- 

On the other hand, nothing in this motion shall in any way prevent the 

attorneys for the plaintiffs or the attorneys for the plaintiff-intervenors from 

modifying their request for further attorneys fees, as allowed by law, in the 

event of success at the conclusion of the appellate stage of this litigation. 

Also, nothing in this motion shall in any way prevent the attorneys for Texas 

Rural Legal Aid or the National Association for the Advancement of Colored 

People from seeking attorneys fees, costs, and expenses as allowed by law. 

V. 

Based upon the foregoing matters, the plaintiffs, the plaintiff- 

intervenors, and the Attorney General of Texas on behalf of the State of 

Texas urge the Court to grant this Joint Motion. 

Respectfully submitted, 

Jim Mattox 
Attorney General of Texas 

Mary F. Keller 
First Assistant Attorney General 

Renea Hicks 
Special Assistant Attorney General 

  

 



  

Assistant Attornev General 
ar ee... - AL LNSZ2 NF ~~ = rr A 

P. O. Box 12548 

Austin, Texas 78711 

(512) 463-2025 

Attorneys for the State of Texas 

trl 
Rolando L. Rios’ 

William L. Garrett 

  

  

Law Offices of Rolando Rios. 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 
(512) 222-2102 

Private Attorneys for Plaintiffs 
and, for This Agreement, on 
Behalf of the Private Attorneys 
for Dallas Plaintiff-Intervenors 
and the Private Attorney for 
Harris Plaintiff-Intervenors 

CERTIFICATE OF SERVICE 

  

I certify that on this Z & 7h day of March, 1990, I sent a copy of the 
foregoing document by first class mail to each of the following: William L. 
Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 
75225; Rolando Rios, 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, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward 
B. Cloutman, III, 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 Robert H. Mow, Jr., 
ges & Luce, 2800 Momentum Place, ya Main Street, Dallas, Texas 

i Cold Ahi 
  

Rolando L. Rios 

 



  

I hereby certify that on March 21, 1990, I discussed the issue of 

seeking interim fees with attorneys for defendant-intervenors Judge Entz 

and Judge Wood and they indicated that they had no objection to our 

request. 

  

Rolando L. Rios 

 



  

MITT COT ATE ¥ TR cr | 
INL) STATES DIS RICCI 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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ORDER ON INTERIM ATTORNEY FEES 

NOW COMES before this court the parties joint motion for interim attorney - fees. 

Having reviewed the motion, the court is of the opinion that said motion 

should be GRANTED and enters the following order: 

1.) This case was filed on July 11, 1988 and after several extensions was finally 

tried in September of 1989. It is likely that besides the almost two years that 

this case has taken, it will take another two years before the appeal process 

through the Supreme Court is completed. 

2.) Congress and the United States Supreme Court have held that interim 

attorney fees are appropriate under 42 U.S.C. Sec. 1988. See Hanrahan V. 

Hampton, 446 U.S. 754, 757-58 (1980). 

3.) The Fifth Circuit has held that an interim fee is appropriate to private 

attorneys where they have played a key role in vindicating the rights of 

plaintiffs, as a matter of public policy, in order to prevent a cash-flow problem 

for plaintiffs and their attorneys and to prevent the danger that defendants 

"may be tempted to seek victory through an economic war of attrition against 

the plaintiffs.” James V. Stockham Valves & Fittings Co., 559 F. 2d. 310, 358-59 

{5th Cir, 1977) 

4) The Court recognizes that the attorneys for the plaintiffs and plaintiff- 

intervenors have achieved a successful judgment on the issue of liability and 

the State of Texas agrees to pay an interim fee: 

  

 



  

It is therefore ORDERED that the State of Texas pay an interim attorneys’ fee of 

  

  

$273,582.00 to Rolando L. Rios, attorney for the plaintiffs, to be distributed as 

follows: 

Rolando L. Rios $108,000.00 

William L. Garrett ------------- $ 950,000.00 

Gabrielle K. McDonald -------- $ 34,000.00 

: Edward B. Cloutman -------—- $ 28,089.00 
E. Brice Cunningham --------- $ 4,500.00 

Brenda Hull Thompson ------- $ 9.000.00 

TOTAL INTERIM FEE $273,589.00 

This fee does not include cost and expenses and constitutes 40% of the total 

fees sought by the private attorneys through the trial of this case in 

September of 1989. Also, nothing in this order shall prejudice in any way the 

rights of the nonprivate plaintiffs’ attorneys from seeking attorney fees and 

costs as provided by law. 

SIGNED AND ENTERED this day of March, 1990. 

  

Lucius D. Bunton, 

Chief Judge