State Defendants' Reply to Plaintiffs' Requests for Judicial Notice and Request for Judicial Notice Concerning Travis County

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"THRE ATTORNEY GEXREKEIRAIL 
Or TEXAS 

JIM NMATTOX 

VEY GENERAL ATTORNEY GE September 14, 1989 

VIA FEDERAL EXPRESS 
  

John D. Neil 
Deputy U. S. District Clerk 
200 E. Wall, Room 316 
Federal Building 

Midland, Texas 79701 

Re: LULAC Council #4434, et al. v. Mattox, et al., 

No. MO-88-CA-154 

Dear Mr. Neil: 

Enclosed for filing in the above-referenced matter are the original 

and one copy of the State Defendants’ Reply to Plaintiffs’ Requests for 
Judicial Notice, and State Defendants’ Request for Judicial Notice Concerning 
Travis County. 

Sincerely 

oT > | 

Renea Hicks 4 

Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

CC: Counsel of record 

512/463 ~ 2100 SUPREME COURT IBUNLIDING AUSTIN, TEXAS 78711-2348 

 



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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

VS. Civil Action No. 

MO-88-CA-154 

- JIM MATTOX, et al., 

Defendants. 

STATE DEFENDANTS' REPLY TO PLAINTIFFS' REQUESTS FOR 

JUDICIAL NOTICE, AND STATE DEFENDANTS' REQUEST FOR 

JUDICIAL NOTICE CONCERNING TRAVIS COUNTY 

The State Defendants reply as follows to the plaintiffs’ requests 

for judicial notice of voting rights cases, of cases concerning 

discrimination on the basis of race/ethnicity, and of Department of 

Justice Letters of Objection. They also make their own limited 

request for the Court to take judicial notice of certain matters 

concerning Travis County: 

LETTERS OF OBJECTION 
  

The plaintiffs’ request here is made pursuant to Rule 201 of the 

Federal Rules of Evidence, which permits such notice of facts 

generally known within the territorial jurisdiction of the trial court 

or capable of accurate and ready determination by resort to sources 

whose accuracy cannot reasonably be questioned. FRE 201(b). 

A court must be very careful to identify the specific fact it 

notices under the rule and to explain its justification for doing so. 

Colonial Leasing Co. v. Logistics Control Group International, 762 F.2d 

454, 459 (5th Cir. 1985). Any judicially noticed fact must not be 

subject to reasonable dispute. Id. Any fact other than the mere  



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existence of the Justice Department letters listed by the plaintiffs is 

subject to vigorous dispute. 

The State Defendants have no objection to the Court taking 

judicial notice of the mere existence of the letters, but, of course, the 

mere existence of the letters is essentially irrelevant to any issue in 

this case. If, notwithstanding the irrelevancy of the letters’ mere 

cxistence, the Court nonetheless takes judicial- notice of their 

existence, then the State Defendants request the Court to take judicial 

notice of the necessary corollary -- that is, that Travis County has 

received no Section 5 objection letters from the Justice Department. 

COURT CASES   

Voting rights cases -- The plaintiffs’ request concerning voting 

rights cases encompasses two different categories of facts. One is 

labelled "Gingles Factors" by the plaintiffs, and one is labelled "Senate 

Factors."* The misleading nature of what the plaintiffs seek is 

exemplified by the second "Gingles Factor" listing for Harris County 

under the "compactness" rubric. There, the plaintiffs seek to have 

the Court take judicial notice of the following finding of fact, citing 

Campos, 840 F.2d at 1242, 1244: "Hispanics and Blacks are 

sufficiently concentrated and compact to form a single member 

district.” The quote appears accurate, but, in context, it really says 

nothing at all about the issues in this case. Campos, after all, 

involved the City of Baytown, Texas, not exactly the dominant city in 

Harris County or even indicative of Harris County politics. That the 

  

* There is overlap between what the plaintiffs terms Gingles factors and what 
they term Senate factors. For example, the plaintiffs list polarization as a Senate 
factor, but it has come to be treated as an element of analysis to help determine the 
Gingles factors.  



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two minority groups are sufficiently geographically compact in the 

city to form a single member district for Baytown city council 

election purposes is meaningless insofar as Harris County and its 

judicial districts are concerned. 

Another misleading aspect of the "facts" which the plaintiffs 

seek to have this Court judicially notice under the "Gingles Factors” 

heading is that the cases from which the facts are taken are nearly 

always of quite ancient vintage. For example, that a federal court 

more than a decade and a half ago (before Gingles’ articulation of 

many of the standards’ details) made a statement about how Anglos 

"tend" to vote in some part of Bexar County says basically nothing 

about how Anglos vote in state district judge races in Bexar County 

recently. 

On the other hand, taking judicial notice of a case and its facts 

which the plaintiffs ignored does seem appropriate because, unlike 

the plaintiffs’ cases, it is of very recent vintage and it involves a 

political subdivision which is virtually contiguous with a political 

subdivision under attack in this case. In Overton v. City of Austin, 

871 F.2d 529 (5th Cir. 1989), the Fifth Circuit upheld the district 

court's finding that the at-large system of city council elections in the 

City of Austin did not violate Section 2 of the Voting Rights Act. 

Among other facts of which this Court should take judicial notice are 

the Overton trial court's findings that there was no persuasive 

¢vidence of white bloc voting in. Austin, 871 F.2d at 5337, and that 

Mexican-American voters and Black voters are not cohesive between 

themselves, id. at 530.  



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Other cases -- The Court should take no judicial notice of the 

other cases listed by the plaintiffs, other than notice of their 

existence. That, for example, the Fifth Circuit said something about 

segregation in Houston schools more than a quarter of a century ago 

adds essentially nothing to the facts which will help the Court 

analyze the issues in the case before it now. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

3 : RENEA HICKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

ATTORNEYS FOR STATE DEFENDANTS 

CERTIFICATE OF SERVICE 

1 certify that on this 14th day of September, 1939, 1 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; 

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; 

cd 

 



  

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Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 

Elm Strect, Dallas, Texas 73226-1637; 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. 

TRI NYC > 
wc; icks 
  

-— 

 



JIM RIATTOX 

ATTORNEY GENERAL 

PP. Oo BOX 12548 

AUSTIN, TEXAS 
78711-2548 

* Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

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