Judge Wood's Response to Mattox's Motion to Alter the Order of January 2, 1990

    ATTORNEYS 

A PARTNERSHIP INCLUDING TELEPHONE (713) 226-0600 
PROFESSIONAL CORPORATIONS 

EVELYN V. KEYES TELEX 775-348 

(713) 226-0611 

PorTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

  

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

  

January 3, 1990 

VIA FEDERAL EXPRESS 
  

Mr. John Neil 

Clerk, U.S. District Court 
200 E. Wall St., Suite 316 
Midland, Texas 79702 

Re: No. MO88-CA-154; League of United Latin American 
Cltizens "(LULAC), et al. 'v. James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 
Division 

Dear Sir: 

Enclosed for filing in the above-referenced case is 
Harris County District Judge Sharolyn Wood's Response to Mattox's 
Motion to Alter the Order of January 2, 1990, 

Please return a file stamped copy of this document to me in 
the enveloped provided, except for the exhibits, all of which 
have been previously served on all counsel. 

A copy of this filing is being served on counsel of record 
by first class mail, postage prepaid. 

Sincerely yours, 

77 

(elon V. at 

Evelyn V. Keyes 

EVK/cdf 

enclosures 

ccs Mr. William 1, Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

 



   
= 

  

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PorTER & CLEMENTS 

Clerk, U.8. District Court 

January 8,.1990 
Page 

CC: 

WAL 

Mr. Rolando L. Rios 

Southwest Voter Registration & 
Education Project 

201 MN. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms.:Sherrilvn A. Ifill 
NAACP Legal Defense and Educational Fund, 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Inc. 

Ms. Mary F. Keller, First Assistant Attorney General 
Ms. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attornev General 
P. QO. Box: 12548 

Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas i 75201 

 



  

THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), etal. 

Vv. NO. MO-88-CA-154 

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

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HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S RESPONSE 
TO MATTOX'S MOTION TO ALTER THE ORDER OF JANUARY 2, 1990 
  

  

Harris County District Judge Sharolyn Wood ("Judge Wood") 

files this Response to Attorney Ceneral Jim Mattox's ("Mattox"'s) 

Motion to Alter the Order of January 2,-.1990 (the "January 2 

Order") and respectfully shows the Court the following: 

I: JUDGES WOOD AND ENTZ HAVE FILED INTERLOCUTORY 
APPEALS WHICH DIVEST THIS COURT OF JURISDIC- 
TION OVER THE MATTERS ADDRESSED IN MATTOX'S 
MOTION 

Mattox comes before this Court complaining of the Court's 

January 20 Order: The January 2 Order certifi 

Memorandum Opinion and Order of November 8, 1989 (the "November 8 

Opinion") for certification for expedited interlocutory appeal to 

the Fifth Circuit; denied the Motions of Judge Wood and Dallas 

County District Judge  F. Harold Entr ("Judge Entz") for ‘stay 

pending appeal; enjoined all elections of state district judges 

under Texas' constitutionally and statutorily authorized judicial 

election system in the nine counties Targeted by the. Plaintiffs 

to this suit; and imposed an Interim Plan for the election of 

state district judges in those target counties. 

 



Following this Court's entry of the January 2 Order, Judges 

Entz and Wood promptly filed Notices of Appeal with this Court on 

January 2 and January 3, respectively. Copies of those Notices 

of Appeal are attached hereto as Exhibit "A"." Both judges also 

immediately filed Emergency Applications for Stay with the Fifth 

Circuit, on ‘January 4,..1990. In addition, on January 4, Judge 

Wood filed a Petition with the Fifth Circuit for Expedited 

Permission to Appeal Under 2 U.S.C." §:1282¢(b) with the Fifth 

Circuit. Copies of Judge Wood's Emergency Application for Stay 

and her Petition for Expedited Permission to Appeal 

§ 1292(b) are attached hereto as Exhibits "B" and "C." 

As Judge Wood observed in her Petition, she notionly has the 

right to petition the Fifth Circuit for expedited interlocutory 

appeal, which she has done, but she also has the right to appeal 

directly "from the Order of January 2, . 1990 "because “of 

injunction against elections under Texas' statutorily and 

constitutionally imposed system of electing state district 

judges. i1tle 28, § 1292(a) expressly provides that: 

The Courts Appeals fshall have jurisdiction: of 
appeals from 

(l1)* iInterlocutory orders of the 
district courts .of the United States 
granting... injunctions. 

28 U.5.C. § 1292(=a)(1). 

An - interlocutory order .is immediately appealable under 28 

U.S.C. § 1292(a)(1l) if the appeal will serve § 1292's purpose of 

permitting liticoants to effectually challenge interlocutory 

orders of serious and perhaps irreparable consequence. Carson v.    



  

gmericsn Brands,  Inec., «450.08. 79, 84,101 8.0%: 993, ©96-97   

(1981). The Fifth Cireuit hag ‘made it crystal clear that 

immediate appeal of an order such as the Order of January 2, 1990 

is proper under 28 U.S.C. 3 1292(a)(l). See Black Ass'n of New 
  

— 
[=] Orleans Firefighters (Banoff) < City of New Orleans, La., 853 
  

F.2d 347, 353-54 (5th Cir. 1988) (District court's order denying 

firefighters' union's motion to vacate order restraining city 

from promoting firefighters to rank of captain, pending judgment 

on black firefighters' civil rights suit was appealable in view 

of serious consequences. to firefighters represented by union). 

Therefore Judge Wood has properly filed both her Notice of Appeal 

and her Petition for Permission to Appeal under § 1292(b). 

An order granting a preliminary injunction can be recon- 

Sidered by the district court if an appeal 1s not taken, since a 
  

district judge always has the power toimcdify or overturn ‘an 

interlocutory order or decision while it remains interiocutory. 
  

Tanner Motor Livery, . Ltd. v. Avis, inc., 316 F.24 804, 809-810   

(th Cir. 19683), sere. denied, 375 U.S. 9821 ‘84 5.Ct. 59 (1863)   

Eee also, Fed. R.- Civ. P.. S54b). Thus, this Court would ordi-   

narily retain jurisdiction over motions to alter or amend its 

interlocutory Order of January 2, . 1990. It is well established, 

however, that, 

The filing of a inotice of appeal is an’ event ‘of 
jurisdictional significance--it confers jurisdiction. on 
the Court of Appeals and divests the district court of 
1ts control over those aspects of the case involved in 
the appeal. 

 



  

  

  

Griggs v. Provident Consumer Discount Lo. , 458 U.S. 56, 58, 103 

S.Ct. 400, 402 (1982); United States v. Hiftchmon, 587 .F.24 1357 

{Sth Cir. 1979)... After .the filing of a timely and sufficient 

notice of appeal, the district court has no jurisdiction to take 

any action with'“regard to any matter involved in th appeal 

except in aid of the appeal. Willie, 746 F.2d at 1046.   

Since Judges Wood and Entz both filed timely and sufficient 

Notices of Appeal on January 2 and 3, 1990, jurisdiction over all 

matters involved in their appeals has been transferred from this 

Court to the Court of Appeals, and this Court is divested of 

jurisdiction to take any action with regard to the matters 

addressed in those appeals except in aid of the appeal. Willie, 

746 F.2d at: 1046. Obviously, the matters addressed include the 

Interim Plan, which is not only part of the subject of Judge 

Wood's Petition for Permission to Appeal but is also the subject 

of her and Judge Entz's Emergency Applications for Stay. 

Mattox is not asking this Court to take any action which 

would aid the matters involved in the apreal. He has not asked 

the Court to reconsider its injunction against district judge 

elections under Texas Statutory election plan; nor does his 

Motion suspend the effectiveness of the Interim Plan; nor does he 

Or Or éven contemplate a stay of this Court's further Ht
) ask 

remedial proceedings pending appeal. Instead, he only. asks this 

Court to reconsider making district judge elections partisan. 

Any action this . Court could take regarding partisanship or 

non-partisanship under its Interim Plan would be entirely 

 



  

irrelevant to the appeal, since that appeal in no way depends 

upon whether elections are partisan or non-partisan. Judge Wood 

has objected in earlier Pleadings both to this Courtis Interi 

Plan and to the Plaintiffs' and Mattox's Proposed Remedial Plan, 

which included partisan elections, and. she “incorporates those 

objections herein by this reference. 

In fact, Mattox is counting on what he believes is this 

Court's continued jurisdiction over this case and his "Rule 59(e) 
. ! . «in -+ - -. v— i 1 . Motion" to invalidate Judge Wood's and Judge Entz appeals, since   

Fed. R.. APP. Pa 4(b)(4L) Provides that a notice of.appeal filed 

prior. to. adjudication of.a Rule >%(e) motion selif-destructs and 

must be refiled after the Motion is adjudicated. Fed. R. App. P. 

#(L){$); Crigas, i A59YU.8. ‘at "53, 103 '8.Ct. rat 402. Thus, if 

Mattox's Motion achieved its true purpose, 1t would frustrate the 
  

appeal by invalidating the Notices of Appeal and Petition for 

Expedited Permission to Appeal” already filed with the Fifth 

Circuit--thereby staving off 

permitting it to gain a greater foothold in the judicial election 

system with each passing day as one filing deadline after another 

passed under the election system which Judges Wood seeks to 

reinstate in her Emergency Application for Stay and Petition for 

Permission to Appeal with the Fifth Circuit. 

Mattox's confidence in his ability to frustrate Judge Wood's 

appeal 1s, however, misplaced. Rule 59(e) motions are designed 

to address an entirely different set of circumstances from those 

 



  

: : 2 la of - 3s ] present in this case. Filing a Rule 59(e) motion suspends the 

finality of a judgment. Federal Communications Comm'n v. League 
  

cf Women Voters of California, 468 U.S. 1205." 104 53.Ck. 3574   

(1984); Willie v. Continental« oil €0.,. 740 F.2d +1041, 1044-45 
  

(5th Cir. 1984). No such effect is either sought or achieved by 

Mattox's Motion, which merely seeks to ensure that the Plain- 

tiffs, having secured an injunction prohibiting elections under 

Texas' statutory judicial election system are assured that 

elections can remain partisan under the Court-imposed Interim 

Since NMattox's Motion is not properly a Rule 59(e) motion 

and does not suspend this Court's injunction or its remedial 

plan, it does not toll the time for filing an appeal. See FCC. v. 
  

League of ‘Women Voters at n.. 10. A, fortiori, it ‘does not   

  

invalidate the Notices of Appeal and the Petition for Expedited 

  

2 
Interlocutory Appeal previously filed in this case. 

1 In such case it makes no difference whether or not he stvles his Motion a 
"Rule 59(e) Motion," since neither the courts nor the parties are bound 
by the title given to a motion. Willie v. Continental Oil Co., 746 F.2d 

  

1041, 1045 (5th Cir. 1984). 

ro
 

In this regard, the Court also should recall that Fed. R. App..P,.5 
allows an Appellant under § 1292(b) only ten days from the date of the 
interlocutory order certifying the appeal; to. fille "a. ‘Petition for 
Permission to Appeal. Pajilure to: 'file such an Application is a 
Jurisdictional defect that deprives the appellate court of power to 
entertain the appeal. Aparicio v. Swan Lake, 643 F.2d 1109, 13311 (5th 

  

Cir. Unit A 1981). Obviously the Federal Rules do not contemplate giving 
parties the right to frustrate appellate jurisdiction over interlocutory 
appeals by the mere filing of motions self-styled as Rule 59(e) motions, 
thereby destroying the right of interlocutory appellants to appeal within 
the only 10 days open to them. 

 



  

II. MATTOX INVITED ERROR WITH HIS PROPOSED REMEDIAL PLAN 
AND HIS PROPOSALS DO NOT MERIT RECONSIDERATION 

Even ifsthis Court did retain jurisdiction over matters 

relevant to Judge Wood's and Judge Entz' appeals--as it clearly 

does not--Mattox's proposals would not merit reconsideration. By 

agreeing with the Plaintiffs to submit to this Court a Proposed 

Interim Plan agreed upon between them without a hearing and in 

direct opposition to the express wishes of the state officials 

Mattox purportedly represents in this case, Maltox invited error. 

Ze cannot now be heard to complain that this Court imposed the 

[=
] Interim Plan he sought but chose not to mplement each and every 

detail that suited Mattox. Furthermore, Mattox's Motion does not 

bring any new considerations to bear onithis case. All Mattox 

has really done is to come back to the Court ro ask it to give 

him the ‘rest of the Proposed Remedial Plan which he and the 

Plaintiffs devised. 

What Mattox is really saying in his’ Motion is that, while he 

28 quite) willing for the Court. to intrude into "rejecting 

century-old state election law" so long as the fruits of those 

intrusions benefit him and his new-found Political allies, the 

Plaintiffs, he is not willing to have the Court intrude into any 

laws that he likes. All the problems that Mattox lists with: the 

Interim plan--its imposition without conducting an evidentiary 

hearing and in direct contravention of “state .law (which did not 

previously raise a peep of Protest from Mattox); its character as 

judicial reform; and its resolution of contentious issues without 

debate in the Texas legislature and by the people of Texas--are 

 



not new issues. These supposed flaws in the Interim Plan consti- 

tute only the Plaintiffs' and Mattox's veneer to coat with an air 

of urgency the Attorney General's need to deliver to the Plain- 

Ciffs the deal he negotiated with them when in fact the urgency 

in this case proves the contrary: the wisest and most judicious 

course would be the imposition of no Interim Plan at all. 

Indeed, whether the 1990 district judge elections are 

artisan or not is important only to the Plaintiffs, who wish to 

ensure that having become the victors, t now enjoy the spoils. 

Plaintiffs reinforce this L rushing agree with 

Mattox's proposal to alter Cerin tosbring dt «into line 

wlth the Proposed Remedial its partisan election schme) 

which they and Mattox concocted together. The obvious 

displeasure of the victors in this case with the Interim Plan and 

the number of objections which they now raise underscore in Judge 

Wood's view why this Court should never have imposed any Interim 

lan. 

As for any objection by Matt the. Interim: Plan, 

Court should be under no delusion that Mattox speaks for anyone 

Sut himself, unless he speaks for the Plaintiffs. The Court. is 

well aware of the numerous protests entered by the State Defen- 

dants 1 vari i iistr] jud to Mattoxn's claims to 

represent them. .in "thi . Judge Wood cited numerous examples 

of such protests in her Response to Attorney General Mattox's 

Statement Concerning Non-Partisan Elections and Supplement, filed 

with the Court on December 29, 1989--a document which explored  



  

more fully the nature of Mattox's concern in calling for partisan 

elections for state district judge and whose observations are 

incorporated herein by this reference. 

Judge Wood reiterated her concerns about Mattox's preten- 

sions to represent the defense in this case and his efforts to 

keep any Defendants from mounting an effective defense on their 

own behalf in her Petition for Permission to Appeal to the Fifth 

Circuit, attached hereto as Exhibit "C." One of her exhibits to 

that ‘appeal, Exhibit. "d3." includes sample letters and alterna- 

tive plans "filed with this Cours by various Defendants. Since 

Judge Wood's Petition was filled, Secretary of State George Bayoud 

has repudiated Mattox's alleged representation of himself as the 

Chief Election Official of the State of Texas and has hired other 

counsel, a move vigorously opposed, as usual by Mattox, even as 

he reiterates hig insistence that he and only he represents the 

State in this Court. Mattox's Motion to Strike at 3. 

The audacity of Mattox's position in the face of all 

évidence to the conrary is perhaps most clearly delineated when 

it 1s set against his Statement Regarding State Defendants, filed 

witha this Court by the Attorney General on December 21,%3989 and 

which states in full as follows: 

Thi 1s statement is submitted on behalf of all the 
state efendants in this case cther than the Attorney 
General of Texas, Jim Mattox. None of them has joined 
in the Attorney General's submission to the Court today 
of a Proposed Interim Plan and a joint motion urging 
the interim plan's adoption. Some have submitted their 
own. remedial proposals directly to the Court. Chief 
Justice Phillips' December 15th submission in his 
personal capacity is an example of this approach. 

 



  

That Mattox should now return to this Court urging. it once 

again to ‘accept the only remaining details of a proposal he 

concocted with the Plaintiffs, in defiance of the wishes of Mall 

the state officials he claims so insistently to represent (except 

when he claims that he has never represented them),’ is but ‘a 

further example of his total flaunting of the Texas' Rules of 

Disciplinary Procedure regarding. conflict of interest and 

settling against the wishes of the client which, as Judge Wood 

argued in ‘her Response to Mattoxls Statement Concerning 

Non-Partisen Elections and Supplement, constitute ;grounds for 

disqualifying him from representing the State 'of Texas in this 

case. It ds also a further attempt at the Very collusion and 

non-reasance which belie any claim that Mattox might make that he 

represents the State of Texas in this action. 

It 1s outrageous that under the foregoing circumstances 

Mattox should see fit to quote and indeed to urge upon this'Court 

the Fifth Circuit's "staunch admonition" in recent cases involv- 

ing the application of the Voting Rights < Act "to Mdicial 

elections that 

a federal court. should jealously guard and sparingly 
use 1ts awesome powers to ignore or brush aside 
long-standing state constitutional provisions,  stat- 
utes, and practices. 

/ be 
Mattox's "Motion ‘to Alteri-the Order of January 2 1880 at 3 

(quoting Chisom v. Roemer, 853 F.2d 1186, 1189 {5th Cir. 1888Y,   

The point is proper, even if the spirit In which it gs argued is 

not. This Court should not have entered any Interim Plan in this 

case. Since, it has done: so, it should now exercise the 

PIG 

 



  

Jurisdiction remaining to it to take action in aid of Judge 

Wood's appeal by vacating its Interim Plan and allowing the 1990 

electio Or state district judges to proceed in the target 
3 

counties under Texas' statutory election system. 

Therefore, Harris County District Judge Sharolyn Wood urges 

this Court to take judicial notice that it lacks jurisdiction 

over the matters addressed in Mattox's Motion to Alter the Order 

of January 2, 1990; and she further requests that this Court 

disqualify Attorney General Jim Mattox from any purported 

representation of any state officials, including herself. in 

their official or any other capacity. 

Respectfully submitted, 

TERS CLEVES 

== 
( J. Eugene Clements 
  

Fi © 2800 NCNB Center 
P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEY FOR HARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

Evelyn V. Keves 
3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-1744 
713) 226-0800 

Michael J. Wood 

Attorney at Law 
220 Louisiana, Suite 200 
Houston, Texas 77002 

(713) 228=5105 

 



  

I hereby 
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day of ‘January, 1990, a 
of the above and foregoing document was 

record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. 

Ms. 

William L. Garrett 
Brenda Hall Thompson 

Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. 

tf hod doa 

Rolando L. Rios 

Southwest Voter Registration & 
Education Project 

203 

San 

Ms. 

N. St. Mary's, Suite 
Antonio, Texas 7820S 

Susan Finkelstein 

Texas Rural Legal Aid, Inc. 
203 

San 

Mr: 

Ms. 

N. 3t, Mary's, Suite 800 
Antonio, Texas 78205 

Julius Levonne Chambers 

Sherrilyn A. Ifill 
NAACP Legal Defense and Educaticnal Fund, Inc. 
9¢ Hudson Street 

16th Floor 
New 

Ms. 

York, New York 10013 

Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Ave. ro

 

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,asulite 
Austin, Texas 78701 

Mr. 

Ms. 

Mr. 

Mr. 
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oe Na 

Jim Mattox, Attorney General of Texas 
Mary F. Keller, First Assistant Attorney General 
Renea Hicks, Spec. Assistant Attorney General 
Javier Guajardo, Spec. Assistant Attorney General 

Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman i] 11: 
Mullinax, Wells. Baab &Clourtman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

 



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Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 

Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

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Evélyn V7 Keyes 

113 

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