State's Response in Opposition to Judge Wood's Motion to Disqualify the Texas Attorney General as Counsel for the State

    Office of the Attorney General 

State of Texas 

DAN MORALES | 
ATTORNEY GENERAL May 21, 1993 

Clerk, Fifth Circuit 
ATT'N: Eileen Boudoin- 

New Orleans, Louisiana 70130 

No. 90-801 
Re: . LULAC, et al. v. Attorney General of La, al., 

—— 
——— 

Enclosed for filing in the above-referenced matter are the original and twenty copies of the 

State's Response in Opposition to Judge Wood's Motion to Disqualify the Texas Attorney General 

as Counsel for the State. be 

Sincerely, 

State Solicitor 

P.O. Box 12548, Capitol Station - 
Austin, Texas 78711-2548 
(512) 463-2085 

CC: Counsel of Record : 
Members of Judicial Districts Bo 
Audrey Selden 

P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 
: AN FQUAL EMPLOYMENT OPPORTUNITY EMPLOYER 

512/463-2100 
1 ED PAPER 

 



  

UNITED STATES COURT OF APPEALS 
- FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 8 
AMERICAN CITIZENS, et al., $ 

Plaintiffs-Appellees, $ 
$ ; 

Vs. : No. 90-8014 

ATTORNEY GENERAL 8 
OF TEXAS, et al., 4 

§ 
Defendants-Appellants. § 

STATE'S RESPONSE IN OPPOSITION TO JUDGE WOOD'S MOTION TO 

DISQUALIFY THE TEXAS ATTORNEY GENERAL AS COUNSEL FOR THE STATE 

The Attorney General of Texas, on behalf of the State of Texas, responds in opposition to 

the motion by Judge Wood to disqualify the Attorney General as the state's counsel: 

The issues raised in Judge Wood's motion to disqualify the Attorney General replicate 

issues already raised in connection with other motions now pending before the Court, including 

the motions by Judges Woods and Entz to realign the Attorney General with the plaintiff- 

appellees, the state's motion to disqualify the private, independent counsel for Chief Justice 

Phillips, and the Joint Motion to Remand for Hearing on Effectuation of Settlement. Rather than 

repeat at length the arguments it has made earlier, the state incorporates by reference the 

arguments made in its Motion to Disqualify Counsel, its Reply to Chief Justice Phillips’ 

Response to [the State's] Motion to Disqualify, and its Response in Opposition to Motion to 

Realign and to Modify Interventions of J udges Entz and Wood. 

To briefly summarize the incorporated filings, the state notes that it has been repeatedly 

recognized in both this Court and the courts of Texas that the Attorney General is the state's chief 

‘legal officer, with the constitutional authority and duty to represent the state in judicial 

proceedings. Representing the state SACOpASIRS more than litigating every case against the 

state to final judgment, then exhausting all possible avenues of appeal; it also encompasses 

decisions not to appeal and decisions to propose settlements to courts which then can act on 

 



  

those proposals. Terrazas v. Ramirez, 829 S.W.2d 712 (1991), is but the most recent recognition 

of these principles by a majority of the Supreme Court of Texas. | 

PUC v. Cofer, 754 S.W.2d 121 (Tex. 1988), does not contradict or undermine in any way hs 

the foregoing position of the state in the context of this case. In Cofer, the Attorney General was 

faced with a case in which he was confronted with two distinct sets of duties and authorities. By 

constitution, he was empowered to represent. the state in utility rate cases; by statute, he was 

required to epraseit the Public Utility Commission where those rate cases had to originate. 

Cofer indicates at most that in such a dual-authority situation, the Attorney General needs to 

make sure he carries out his statutory duties fully and without conflict while also carrying out his 

constitutional duties. 

Here, unlike in Cofer, the Attorney General's duty is to represent the state itself, which 

has been sued through fifteen of its officials. Despite the occasionally disparate voices 

emanating from the fifteen officials, governing law from the Supreme Court of the United States 

requires that this Court treat the state as speaking with one voice in this case. See, e.g., Kentucky 

v. Graham, 473 U.S. 159 (1986). Thus, the Attorney General, who must speak for the state in 

court, is charged with giving one voice instead of multiple voices to the state in this Court. Cofer 

simply does not speak to this situation. 

Thus, the Attorney General is acting fully within his state constitutional powers in 

proposing a settlement of this lawsuit. He well recognizes that the federal courts will have the 

final say on whether the settlement may be effectuated and that he lacks any power to act 

unilaterally to adopt and implement the proposed settlement. His actions rest securely within the 

boundaries of his authority and duty to act for the state. There simply is no basis for Judge 

Wood's effort to undo a century of Texas law and have this Court disqualify the one obvious 

legal representative of the state in this proceeding.” 

  

* The state will not extend this response by addressing some of Judge Wood's more overwrought, hyperbolic 

statements about the Attorney General and the proposed settlement. This forum does not seem the appropriate one 

for such disputes. ) 

2. 

 



  

CONCLUSION 

For the foregoing reasons, the Court should deny Judge Wood's Motion to Disqualify the 

Texas Attorney General as Counsel for the State. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General AL 

RENEA HICKS 
State Solicitor 

  

JAVIER GUAJARDO 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

ATTORNEYS FOR 
STATE OF TEXAS AND ATTORNEY 
GENERAL 

CERTIFICATE OF SERVICE 

I certify that on the 21st day of May, 1993, I sent a copy of the foregoing document by 

first class United States mail, postage prepaid, to each of the following: William L. Garrett, 

Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, 

Milam Building, Suite 1024, 115 E. Travis Street, 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, 7800 N. Mopac, Suite 215, Austin, Texas 78759; 

Edward B. Cloutman, III, 3301 Elm Street, Dallas, Texas 75226-1637; E. Brice Cunningham, 

777 South R. L. Thornton Frwy., Suite 121, Dallas, Texas 75203; J. Eugene Clements, Porter & 

Clements, 3500 NCNB Center, P.O. Box 4744, Houston, Texas 77210-4744; Robert H. Mow, 

Jr., Hughes & Luce, 1717 Main Street, Suite 2800, Dallas, Texas 75201; Jessica Dunsay Silver, 

Department of Justice, P. O. Box 66078, Washington, D. C. 20035-6078; Tom Maness, Jefferson 

County Courthouse, Beaumont, Texas 77701; Seagal V. Wheatley, Wheatley & Sharpe, Frost 

" Bank Tower, Suite 1200, 100 West Houston, San Antonio, Texas 78205-1457; Russell W. 

Miller, 3300 Texas Commerce Tower, Houston, Texas 77002; and Joseph D. J amail, Jamail & 

Kolius, 500 Dallas, Suite 3434, Houston, A : | ; 

Renea Hicks 
  

3 

 



Office of the Attorney Generals 

State of Texas STATE 

P.O: BOX 12548 

AUSTIN, TEXAS 78711-2548 

Sherrilyn A. Ifill 

NAACP Legal Defense & Educ. Fund 

99 Hudson St., 16th Fl. 
New York, NY 10013