Houston Lawyers' Association's Reply to Defendant-Intervenor Wood's Amended Motion to Compel

    July 12, 

Hon. John Neil 
Deputy Clerk, U.S. Courthouse 
P.O. Box 10708 
200 E. Wall, Room 316 

Midland, Texas 79702 

Re: Civil Action No. M0O-88-CA-154 
LULAC, et al. v. Jim Mattox, et. 

Dear Mr. Neil: 

B
N
 

1989 

al. 

Enclosed for filing, please find Plaintiff-intervenors Houston 
Lawyers’ Association’s Reply to Defendant-Intervenor Wood’s 
Amended Motion to Compel. Thank you. 

  

cc: All Attorneys of Record 

  

NINETY NINE HUDSON STREET, 16th FLOOR ° (212) 219-1900 NEW YORK, N.Y. 10013 

 



  

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

MIDILAND-ODESSA DIVISION 

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

PLAINTIFFS, 

HOUSTON LAWYERS’ ASSOCIATION, et al., 

PLAINTIFF-INTERVENORS, 

vs. NO. 88-CA-154 

JAMES MATTOX, et a 

HOUSTON IAWYERS’ ASSOCIATION ET AL.’S REPLY TO 
DEFENDANT-INTERVENOR WOOD’S AMENDED MOTION TO COMPEL 
  

  

Plaintiff-intervenor Houston Lawyers’ Association has sought 

to comply, to the extent possible, with all discovery requests in 

the case at hand. Defendant-intervenor Wood now seeks to compel 

discovery from Plaintiff-intervenor Houston Lawyers’ Association 

in nine substantive areas. The Houston Lawyers’ Association’s 

response, as set out below, addresses each area of concern 

separately. 

1. Defendant-intervenor Wood asks the court to compel the 

Houston Lawyers’ Assocation plaintiff-intervenors to identify the 

 



  

specific the judicial races to be analyzed by their experts and 

upon which they will base their claims of racially polarized 

voting, and Black political cohesion. On June 24, 1989, in 

response to State Defendant’s First Set of Interrogatories and 

Requests for Production, the Houston Lawyers’ Association 

plaintiffs identified all races to be analyzed by plaintiffs’ 

expert, and upon which they base their claims. This information 

was provided to all counsel. 

2. Defendant-Intervenor Wood seeks to compel the Houston 

Lawyers’ Association plaintiff-intervenors to provide documents 

upon which their expert, Dr. Richard Engstrom, has relied in 

completing his analysis. On June 24, the Houston Lawyers’ 

Association plaintiff-intervenors, in response to the State 

Defendants’ First Set of 1Interrogatories and Requests for 

Production of documents, provided to all counsel, the documents 

relied upon by Dr. Engstrom, which had been made available by 

University of Houston political science Professor Richard Murray. 

3. Defendant-intervenor Wood seeks information "relevant to the 

claim that the members of the Houston Lawyers [sic] themselves 

have been denied the right to elect state district judges in 

Harris County.” Wood Amended Motion to Compel at P.10. The 

plaintiff-intervenors are Black voters who have supported and 

voted for Black candidates who, as a result of the currently 

constituted at large system of electing district judges in Harris 

 



  

County, have been unable to attain office. This response is 

apparently unsatisfactory to defendant-intervenor Wood. The 

Houston Lawyers’ Association plaintiffs are simply unclear as to 

the nature of the “details and specific answers” [Wood Amended 

Motion to Compel at 11] sought by the defendant-intervenor in 

this instance, and will seek clarification from counsel for 

defendant-intervenor Wood. 

4. Defendant-intervenor Wood seeks to compel the Houston 

Lawyers’ Association to provide document relevant to the claim 

that the current system for electing district judges pursuant to 

Art. 5, Section 7a(i) of the Texas Constitution was adopted for 

the purpose and/or maintained with the intention of minimizing 

the political strength of Black voters. The Houston Lawyers’ 

Association plaintiff-intervenors are continuing their 

investigation into the events leading up to the passage of SB 290 

and SJR 14, which was later adopted as Art. 5, Section 7a(i) of 

the Texas Constitution. Plaintiffs have no additional doGanents 

responsive to defendant-intervenor Wood’s request, save for 

public documents, which plaintiff-intervenors have identified as 

available in the Legislative Reference Library, the House 

Committee Coordinator’s Office, and the Senate Staff Services 

Offices of the State Capitol in Austin, Texas. These public 

records are equally available to defendants as they are to 

plaintiffs. Since the defendant-intervenors have been unable to 

collect these public records to date however, plaintiff- 

 



  

intervenors will provide defendant-intervenors with the public 

documents in their possession which are relevant to this request 

under separate cover. 

If plaintiff-intervenors uncover additional documents 

relevant to this request, these documents will be provided to 

defendant-intervenor Wood promptly. 

5. Defendant-intervenor Wood also requests that plaintiff- 

intervenors provide the defendants with their specific remedial 

plan to cure the claimed discriminatory defect in the current 

district judge electoral system. Plaintiff-intervenors have 

simply not completed their analysis of the proposed remedy in 

this case, and are therefore unable to provide the defendant- 

intervenor with a remedial Plan at this date. Plaintiff- 

intervenors note that it is now two months before trial. 

Remedial plans will be provided in ample time before the close of 

discovery to afford all defendants an opportunity to examine and 

analyze the plan. 

6. Defendant-intervenor Wood seeks to compel plaintiffs to 

produce documents "substantiating the Houston Lawyers’ [sic] 

claim that Texas has a history of official discrimination.” Wood 

Amended Motion to Compel at p.12. Texas’ history of official 

discrimination has been judicially noticed by this court, see 

LULAC v. Midland Independent School District, 648 F. Supp. 596   

(W.D. Tex. 1986) (J. Bunton), aff’d 812 F.2d 1494 (5th Cir. 

   



  

1987), and is amply supported by documents in the public record. 

The Houston Lawyers’ Association plaintiff-intervenors have 

specifically identified cases and statutes, including their 

citations, which support the claim that Texas has a history of 

official discrimination against Blacks and Hispanics. These 

cases and statutes are public records, easily available to the 

defendant-intervenors. 

7 Defendant-intervenor Wood asks this court to compel the 

plaintiff-intervenors to explain "why Harris County and certain 

other counties, but not all counties, were targeted for this 

suit...[and to provide] documentation that supports this 

selectivity.” Wood Amended Motion to Compel at p.13. This 

request essentially asks the plaintiff-intervenors to speculate 

about the effects of the current district judge electoral system 

on counties outside of the challenged jurisdictions, and outside 

of the jurisdictions in which they reside. The plaintiff- 

intervenors are in no position to engage in this type of 

speculation. The plaintiff-intervenors have challenged the 

operation of the current electoral system in the county in which 

they reside, and in which they have been affected by its 

operation. Were plaintiff-intervenors to challenge the current 

system in counties outside of Harris County, defendant-intervenor 

Wood would no doubt challenge the standing of the plaintiff- 

intervenors to bring such a claim, as they have in the past. 

The Houston Lawyers’ Association plaintiffs have no hidden 

 



  

or insidious reasons for limiting their challenge to the system 

of electing district judges to only Harris County. Moreover, 

there are no documents in the possession of the plaintiffs which 

explain their “selectivity.” The plaintiff-intervenors are 

residents of Harris County, and seek to elect candidates of their 

choice to judicial office in Harris County. 

8. Defendant-intervenor Wood has requested that the Houston 

Lawyers’ Association produce documents indicating ”the size of 

the pool of black and Hispanic attorneys eligible for lection as 

state district judges in Harris County.” Wood Amended Motion to 

Compel at p.1l3. The Houston Lawyer’s Association objected to 

this request on the grounds that this information is not in the 

possession of the the plaintiff-intervenors, and would be equally 

burdensome for the plaintiff-intervenors to compile as the 

defendants. Defendant-intervenor Wood now erroneously cites the 

Supreme Court’s recent decision in Wards Cove Packing Co. v. 
  

  

Atonio, aos US. ’ S.Ct. , NO. 87-1387 (June 5, 1989 

Westlaw 60000 (U.S. at 1, 5), to support their claim that the 

plaintiffs have the burden of proof in showing that ”the size of 

the pool of available applicants for a position is an essential 

element of a discrimination claim.” Wood Amended Motion to 

Compel at p.13. Defendant-intervenor Wood mistakenly applies 

employment discrimination law to a voting rights case. 

Under the Voting Rights Act of 1965, as amended, the rights 

protected are the rights of the voters to elect candidates of 

 



  

their choice, not the right of particular candidates to be 

elected. “The essence of a §2 claim is that a certain electoral 

law, practice, or structure interacts with social and historical 

conditions to cause an inequality in the opportunities enjoyed by 

black and white voters to elect their preferred representatives." 

Thornburg v. Gingles, 478 U.S. 30,47 (1986) (emphasis added). It   

is for this reason that "the election of a few minority 

candidates does not ‘necessarily foreclose the possiblity of   

dilution of the black vote’ in violation of [the Act]." Senate 

Report 97-417 at p. 29, n.115, quoting Zimmer v. McKeithen 485 
  

F.2d 1297, 1307 (5th Cir. 1973). 

Plaintiffs need only demonstrate that qualified Black 

candidates, overwhelmingly supported by politically cohesive 

Black voters, in a jurisdiction in which voting is racially 

polarized, who have run for district judge in Harris County 

could not be elected to office, absent special circumstances. It 

is not the plaintiffs’ burden of proof, as it may be in an 

employment discrimination case, to prove the size of the "Pool: of 

applicants" for a position in a particular area. 

9. Finally, information relevant to the political cohesiveness 

of Black voters and racial bloc voting will be provided by 

plaintiff-intervenors expert, who will be deposed when noticed by 

defendants in this action. 

10. The Houston Lawyers’ Association plaintiff-intervenors will 

 



  

continue to comply with discovery requests from defendants to the 

extent possible. 

WHEREFORE, plaintiff-intervenors Houston Lawyers’ 

Association respectfully requests that this court deny defendant- 

intervenor Wood’s Amended Motion to Compel Discovery. 

  

/ Ce 
/ JULIUS CHAMBER 

SHERRILYN A. IFILL 
NAACP Legal Defense & 
Educational Fund, Inc. 
99 Hudson Street 
16th Floor 

New York, NY 10013 
(212) 219-1900 

Of Counsel: GABRIELLE K. MCDONALD 
Matthews & Branscomb 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, TX 78701 
(512) 320-5055 

July 12, 1989 Attorneys for: 
Plaintiff-intervenors 

Houston Lawyers’ Association, 
et al. 

 



CERTIFICATE OF SERVICE 

  

I hereby certify that on this th day of July, 1989, a true 

and correct copy of the foregoing Plaintiff-Intervenors Houston 

Lawyers Association’s Reply to Defendant-Intervenor Wood’s 

Amended Motion to Compel was mailed by first class United States 

mail, postage pre-paid to: 

J. Eugene Clements, Esqg., et al. Rolando L. Rios 
Porter & Clements Southwest Voter Registration 
700 Louisiana, Suite 3500 Education Project 
Houston, TX 77002-2730 201 N. St. Mary’s, Suite 521 

San Antonio, TX 78205 
Michael J. Wood, Esq. 
440 Louisiana, Suite 200 Susan Finkelstein 
Houston, TX 77002 Texas Rural Legal Aid, Inc. 

201 N. St. Mary’s, Suite 521 
William L. Garrett San Antonio, TX 78205 
Brenda Hull Thompson 
Garrett, Thompson & Chang Ken Oden 
8300 Douglas, Suite 800 Travis County Attorney 
Dallas, TX 75225 P.O. Box 1748 

Austin, TX 78767 
Edward B. Cloutman, III 
Mullinax, Wells, Baab & David R. Richards 

Cloutman, P.C. Special Counsel 
3301 Elm 200 W. 7th St. 
Dallas, TX 75226-9222 Austin, TX 78701 

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

LS 

¢ 

  

Sherrilyd X. Ifill VU 
Attorn for Plaintiff-Intervenors 
Houston Lawyers’ Association 

 



  

July 12, 

Hon. John Neil 
Deputy Clerk, U.S. Courthouse 
P.O. Box 10708 
200 E. Wall, Room 316 
Midland, Texas 79702 

Re: Civil Action No. MO-88-CA-154 
LULAC, et al. v. Jim Mattox, et. 

Dear Mr. Neil: 

1989 

al. 

Enclosed for filing, please find Plaintiff-intervenors Houston 
Lawyers’ Association’s Reply to Defendant-Intervenor Wood’s 
Amended Motion to Compel. Thank you. 

  

cc: All Attorneys of Record 

  

NINETY NINE HUDSON STREET, 16th FLOOR ° (212) 219-1900 NEW YORK, N.Y. 10013 

 



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, 

HOUSTON LAWYERS’ ASSOCIATION, et al., 

PLAINTIFF-INTERVENORS, 

NO. 88-CA-154 

JAMES MATTOX, 

DEFENDANTS. 

HOUSTON IAWYFERS’ ASSOCIATION ET AL.’S REPLY TO 
DEFENDANT-INTERVENOR WOOD’S AMENDED MOTION TO COMPEL 
  

  

Plaintiff-intervenor Houston Lawyers’ Association has sought 

to comply, to the extent possible, with all discovery requests in 

the case at hand. Defendant-intervenor Wood now seeks to compel 

discovery from Plaintiff-intervenor Houston Lawyers’ Association 

in nine substantive areas. The Houston Lawyers’ Association’s 

response, as set out below, addresses each area of concern 

separately. 

1. Defendant-intervenor Wood asks the court to compel the 

Houston Lawyers’ Assocation plaintiff-intervenors to identify the  



specific the judicial races to be analyzed by their experts and 

upon which they will base their claims of racially polarized 

voting, and Black political cohesion. On June 24, 1989, in 

response to State Defendant’s First Set of Interrogatories and 

Requests for Production, the Houston Lawyers’ Association 

plaintiffs identified all races to. be analyzed by plaintiffs’ 

expert, and upon which they base their claims. This information 

was provided to all counsel. 

2. Defendant-Intervenor Wood seeks to compel the Houston 

Lawyers’ Association plaintiff-intervenors to provide documents 

upon which their expert, Dr. Richard Engstrom, has relied in 

completing his analysis. On June 24, the Houston Lawyers’ 

Association plaintiff-intervenors, in response to the State 

Defendants’ First Set of Interrogatories and Requests for 

Production of documents, provided to all counsel, the documents 

relied upon by Dr. Engstrom, which had been made available by 

University of Houston political science Professor Richard Murray. 

3. Defendant-intervenor Wood seeks information “relevant to the 

claim that the members of the Houston Lawyers [sic] themselves 

have been denied the right to elect state district judges in 

Harris County.” Wood Amended Motion to Compel at P.10. The 

plaintiff-intervenors are Black voters who have supported and 

voted for Black candidates who, as a result of the currently 

constituted at large system of electing district judges in Harris  



  

County, have been unable to attain office. This response is 

apparently unsatisfactory to defendant-intervenor Wood. The 

Houston Lawyers’ Association plaintiffs are simply unclear as to 

the nature of the “details and specific answers” [Wood Amended 

Motion to Compel at 11] sought by the defendant-intervenor in 

this instance, and will seek clarification from counsel for 

defendant-intervenor Wood. 

4. Defendant-intervenor Wood seeks to compel the Houston 

Lawyers’ Association to provide document relevant to the claim 

that the current system for electing district judges pursuant to 

Art. 5, Section 7a(i) of the Texas Constitution was adopted for 

the purpose and/or maintained with the intention of minimizing 

the political strength of Black voters. The Houston Lawyers’ 

Association plaintiff-intervenors are continuing their 

investigation into the events leading up to the passage of SB 290 

and SJR 14, which was later adopted as Art. 5, Section 7a(i) of 

the Texas Constitution. Plaintiffs have no additional documents 

responsive to defendant-intervenor Wood’s request, save for 

public documents, which plaintiff-intervenors have identified as 

available in the Legislative Reference Library, the House 

Committee Coordinator’s Office, and the Senate Staff Services 

Offices of the State Capitol in Austin, Texas. These public 

records are equally available to defendants as they are to 

plaintiffs. Since the defendant-intervenors have been unable to 

collect these public records to date however, plaintiff- 

 



  

intervenors will provide defendant-intervenors with the public 

documents in their possession which are relevant to this request 

under separate cover. 

If plaintiff-intervenors uncover additional documents 

relevant to this request, these documents will be provided to 

defendant-intervenor Wood promptly. 

5. Defendant-intervenor Wood also requests that plaintiff- 

intervenors provide the defendants with their specific remedial 

plan to cure the claimed discriminatory defect in the current 

district judge electoral system. Plaintiff-intervenors have 

simply not completed their analysis of the proposed remedy in 

this case, and are therefore unable to provide the defendant- 

intervenor with a remedial plan at this date. Plaintiff- 

intervenors note that it is now two months before trial. 

Remedial plans will be provided in ample time before the close of 

discovery to afford all defendants an opportunity to examine and 

analyze the plan. 

6. Defendant-intervenor Wood seeks to compel plaintiffs to 

produce documents "substantiating the Houston Lawyers’ [sic] 

claim that Texas has a history of official discrimination.” Wood 

Amended Motion to Compel at p.12. Texas’ history of official 

discrimination has been judicially noticed by this court, see 

LUIAC v. Midland Independent School District, 648 F. Supp. 596   

(W.D. Tex. 1986) (J. Bunton), aff’d 812 F.2d 1494 (5th Cir. 

   



  

1987), and is amply supported by documents in the public record. 

The Houston Lawyers’ Association plaintiff-intervenors have 

specifically identified cases and statutes, including their 

citations, which support the claim that Texas has a history of 

official discrimination against Blacks and Hispanics. These 

cases and statutes are public records, easily available to the 

defendant-intervenors. 

Te Defendant-intervenor Wood asks this court to compel the 

plaintiff-intervenors to explain "why Harris County and certain 

other counties, but not all counties, were targeted for this 

suit...[and to provide] documentation that supports this 

selectivity.” Wood Amended Motion to Compel at p.13. This 

request essentially asks the plaintiff-intervenors to speculate 

about the effects of the current district judge electoral system 

on counties outside of the challenged jurisdictions, and outside 

of the jurisdictions in which they reside. The plaintiff- 

intervenors are in no position to engage in this type of 

speculation. The plaintiff-intervenors have challenged the 

operation of the current electoral system in the county in which 

they reside, and in which they have been affected by its 

operation. Were plaintiff-intervenors to challenge the current 

system in counties outside of Harris County, defendant-intervenor 

Wood would no doubt challenge the standing of the plaintiff- 

intervenors to bring such a claim, as they have in the past. 

The Houston Lawyers’ Association plaintiffs have no hidden 

 



  

or insidious reasons for limiting their challenge to the system 

of electing district judges to only Harris County. Moreover, 

there are no documents in the possession of the plaintiffs which 

explain their “selectivity.” The plaintiff-intervenors are 

residents of Harris County, and seek to elect candidates of their 

choice to judicial office in Harris County. 

8. Defendant-intervenor Wood has requested that the Houston 

Lawyers’ Association produce documents indicating “the size of 

the pool of black and Hispanic attorneys eligible for lection as 

state district judges in Harris County.” Wood Amended Motion to 

Compel at p.13. The Houston Lawyer’s Association objected to 

this request on the grounds that this information is not in the 

possession of the the plaintiff-intervenors, and would be equally 

burdensome for the plaintiff-intervenors to compile as the 

defendants. Defendant-intervenor Wood now erroneously cites the 

Supreme Court’s recent decision in Wards Cove Packing Co. Y. 
  

Atonio, U.S. ; S.Ct. , NO. 87-1387 (June 5, 1989   

  

Westlaw 60000 (U.S. at 1, 5), to support their claim that the 

plaintiffs have the burden cf proof in showing that “the size of 

the pool of available applicants for a position is an essential 

element of a discrimination claim.” Wood Amended Motion to 

Compel at p.13. Defendant-intervenor Wood mistakenly applies 

employment discrimination law to a voting rights case. 

Under the Voting Rights Act of 1965, as amended, the rights 

protected are the rights of the voters to elect candidates of 

 



  

their choice, not the right of particular candidates to be 

elected. “The essence of a §2 claim is that a certain electoral 

law, practice, or structure interacts with social and historical 

conditions to cause an inequality in the opportunities enjoyed by 

black and white voters to elect their preferred representatives." 

Thornburg v. Gingles, 478 U.S. 30,47 (1986) (emphasis added). It   

is for this reason that "the election of a few minority 

candidates does not ‘necessarily foreclose the possiblity of   

dilution of the black vote’ in violation of [the Act]." Senate 

Report 97-417 at p. 29, n.115, quoting Zimmer v. McKeithen 485 
  

F.2d 1297, 1307 (5th Cir. 1973). 

Plaintiffs need only demonstrate that qualified Black 

candidates, overwhelmingly supported by politically cohesive 

Black voters, in a jurisdiction in which voting is racially 

polarized, who have run for district judge in Harris County 

could not be elected to office, absent special circumstances. It 

is not the plaintiffs’ burden of proof, as it may be in an 

employment discrimination case, to prove the size of the "pool of 

applicants" for a position in a particular area. 

9. Finally, information relevant to the political cohesiveness 

of Black voters and racial bloc voting will be provided by 

plaintiff-intervenors expert, who will be deposed when noticed by 

defendants in this action. 

10. The Houston Lawyers’ Association plaintiff-intervenors will 

 



continue to comply with discovery requests from defendants to the 

extent possible. 

WHEREFORE, plaintiff-intervenors Houston Lawyers’ 

Association respectfully requests that this court deny defendant- 

intervenor Wood’s Amended Motion to Compel Discovery. 

  

tres CHAMBER 
SHERRILYN A. IFILL 

NAACP Legal Defense & 
Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900 

Ref a) 

{/ Can 

Of Counsel: GABRIELLE K. MCDONALD 
Matthews & Branscomb 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, TX 78701 
(512) 320-5055 

July 12, 1989 Attorneys for: 
Plaintiff-intervenors 

Houston Lawyers’ Association, 
et al. 

 



CERTIFICATE OF SERVICE 

I hereby certify that on this th day of July, 1989, a true 

and correct copy of the foregoing Plaintiff-Intervenors Houston 

Lawyers Association’s Reply to Defendant-Intervenor Wood’s 

Amended Motion to Compel was mailed by first class United States 

mail, postage pre-paid to: 

J. Eugene Clements, Esg., et al. Rolando L. Rios 
Porter & Clements Southwest Voter Registration 
700 Louisiana, Suite 3500 Education Project 
Houston, TX 77002-2730 201 N. St. Mary’s, Suite 521 

San Antonio, TX 78205 
Michael J. Wood, Esq. 
440 Louisiana, Suite 200 Susan Finkelstein 
Houston, TX 77002 Texas Rural Legal Aid, Inc. 

201 N. St. Mary’s, Suite 521 
William L. Garrett San Antonio, TX 78205 
Brenda Hull Thompson 
Garrett, Thompson & Chang Ken Oden 
8300 Douglas, Suite 800 Travis County Attorney 
Dallas, TX 75225 P.O. Box 1748 

Austin, TX 78767 
Edward B. Cloutman, III 
Mullinax, Wells, Baab & David R. Richards 

Cloutman, P.C. Special Counsel 
3301 Elm 800 W. 7th st. 
Dallas, TX 75226-9222 Austin, TX 78701 

Robert H. Mow, Jr. 
Hughes & Luce 

2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201 

L 

¢ 

Sherrilyd X. Ifill | 
Attorn for Plaintiff-Intervenors 
Houston Lawyers’ Association