Texas's Response in Opposition to Motion for Remand to District Court; Motion for Substitution of Parties Who are Public Officers

    Office of the Attorney General 

State of Texas 

DAN MORALES 
ATTORNEY GENERAL 

July 24, 1991 

Gilbert Ganucheau, Clerk 
Fifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC v. Mattox, No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced cause are the original 
and twenty copies of each of the following: (a) Texas's Response in 
Opposition to Motion of Plaintiffs-Appellees and Plaintiffs-Intervenors- 
Appellees for Remand to District Court; and (b) Motion for 
Substitution of Parties Who Are Public Officers. 

Sincerely, 

Yer Hicks 
Special Assistant Attorney General 

  

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 

cc: Counsel of Record 
Members of Texas Judicial Districts Board 
Audrey Selden 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 
AN EQUAL EMPLOYMENT OPPORTUNITY EMPLOYER 

 



    

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. Co

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TEXAS'S RESPONSE IN OPPOSITION TO MOTION OF PLAINTIFFS- 
APPELLEES AND PLAINTIFFS-INTERVENORS-APPELLEES FOR 

REMAND TO DISTRICT COURT 

The Attorney General of Texas, the Secretary of State of Texas, 

and the members of the Texas Judicial Districts Board, official- 

capacity respondents (hereinafter collectively, "Texas"), respond as 

follows to the plaintiffs-appellees’ motion to remand this case to the 

district court: 

1, The plaintiffs-appellees' remand motion, especially in 1 4, 

reverses the proper order of further proceedings in this case. The 

case still is on appeal to this Court, with many significant issues 

undecided. Some of those issues, including the question of whether 

the holding of Whitcomb v. Chavis, 403 U.S. 124 (1971), applies here, 

predated the Supreme Court's June 20th decision in Houston Lawyers’ 

Ass'n v. Attorney General of Texas; other issues arise from the 

Supreme Court's decision. An especially critical issue arising from the 

June 20th decision is whether the basis for the original panel 

decision's reversal of the district court, see 902 F.2d 293, remains a 

valid basis for reversal, albeit under the "totality of the circumstances" 

 



rubric. See HLA slip op. at 6-7. This Court is the appropriate court to 

address these potentially dispositive issues. 

2. Additionally, if the Court addresses these issues but holds 

that it is unable to render judgment, its effort will provide crucial 

guidance to the district court on the appropriate legal standards 

which will guide its factual inquiries on remand. The normal course 

for the Court in such situations in voting rights cases is to decide what 

it can, provide whatever guidance it can, and, only then, remand the 

case to the district court for further proceedings. See, e.g., Westwego 

Citizens for Better Government v. City of Westwego, 872 F.2d 1201, 

1204 (5th Cir. 1989), cited in Texas's pending Motion for 

Supplemental Briefing and Establishment of Schedule for Briefing and 

Argument, at 2 n.*. The uncertainties attending the rules applicable 

to results-based Section 2 challenges to judicial elections make it 

more important to apply the Westwego rule here than in perhaps any 

other setting. 

Based upon the foregoing matters, Texas urges the Court to deny 

the motion for remand. Texas does support the alternative relief 

sought in the first sentence of 4 6 of the remand motion. 

 



Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney 
General 

MARY F. KELLER 
Deputy Attorney General 

Cte fed 
  

RENEA HICKS 
Special Assistant Attorney General 

JAVIER GUAJARDO 
Special Assistant Attorney 
General 

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

CERTIFICATE OF SERVICE 

I certify that on this 24th day of July, 1991, 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, 
Southwest Voter Registration & Education Project, 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; Robert H. Mow, Jr., Hughes 
& Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 
75201; Walter L. Irvin, 5787 South Hampton Road, Suite 210, Lock 
Box 122, Dallas, Texas 75232-2255; Susan Finkelstein, Texas Rural 
Legal Aid, Inc., 201 N. St. Mary's # 600, San Antonio, Texas 78205; 
and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 

SR ew 
  

Renea Hicks N 

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UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. Co

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MOTION FOR SUBSTITUTION OF PARTIES WHO ARE PUBLIC 
OFFICERS 

Pursuant to Rule 43(c), the Attorney General of Texas, the 

Secretary of State of Texas, and the members of the Texas Judicial 

Districts Board, official-capacity defendants-appellants, move the Court 

to substitute parties as follows: 

1. Two of the defendants-appellants in this action are the 

Attorney General of Texas and the Secretary of State of Texas, each in 

his official capacity only. 

2. Dan Morales has now succeeded Jim Mattox in office as 

the Attorney General of Texas, and John Hannah has now succeeded 

George Bayoud, Jr., as Secretary of State of Texas. Pursuant to FRAP 

43(c)(1), each should be substituted for his predecessor as a 

defendant-appellant in this action. 

3. Each of the thirteen members of the Texas Judicial 

Districts Board ("Board") is an official-capacity defendant-appellant in 

this action. The following persons comprise the current membership 

of the Board and, pursuant to FRAP 43(c)(1), should be treated as the 

 



    

  

remaining defendants-appellants (in addition to the Attorney General 

and the Secretary of State) in this case: 

Hon. Thomas R. Phillips, Chair and Chief 
Justice of the Supreme Court of Texas; 

Hon. Michael J. McCormick, Presiding Judge 
of the Texas Court of Criminal Appeals; 

Hon. Pat McDowell, Presiding Judge of the 1st 
Administrative Region; 

Hon. Thomas J. Stovall, Presiding Judge of the 
2nd Administrative Region; 

Hon. B. B. Schraub, Presiding Judge of the 3rd 
Administrative Region; 

Hon. John Cornyn, Presiding Judge of the 4th 
Administrative Region; 

Hon. Darrell Hester, Presiding Judge of the 
5th Administrative Region; 

Hon. William E. Moody, Presiding Judge of the 
6th Administrative Region; 

Hon. Weldon Kirk, Presiding Judge of the 7th 
Administrative Region; 

Hon. Jeff Walker, Presiding Judge of the 8th 
Administrative Region; 

Hon. Ray D. Anderson, Presiding Judge of the 
9th Administrative Region; 

Hon. Joe Spurlock II, President, Texas Judicial 
Council; and 

Hon. David A. Talbot, Jr. 

 



    

  

2, Pursuant to FRAP 43(c)(2), the defendants-appellants 

request the Court to describe them by their title instead of their name 

and to order that henceforth the style of this case be changed 

accordingly. The style would become "League of United Latin 

American Citizens Council No. 4434, et al. v. The Attorney General of 

Texas, et al." 

Based upon the foregoing matters, the defendants-appellants 

urge the Court to grant this motion. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney 
General 

MARY F. KELLER 
Deputy Attorney General 

RENEA HICKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Special Assistant Attorney 
General 

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

 



  

     

CERTIFICATE OF SERVICE 

I certify that on this 24th day of July, 1991, 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, 
Southwest Voter Registration & Education Project, 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; Robert H. Mow, Jr., Hughes 
& Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 
75201; Walter L. Irvin, 5787 South Hampton Road, Suite 210, Lock 
Box 122, Dallas, Texas 75232-2255; Susan Finkelstein, Texas Rural 
Legal Aid, Inc., 201 N. St. Mary's # 600, San Antonio, Texas 78205; 
and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 

Aes el 
  

NJ ini 

Renea Hicks 

 



Office of the Attorney General 

State of Texas 

P.O. BOX 12548 

AUSTIN, TEXAS 78711-2548 

Sherrilyn A. Ifill 

NAAC Legal Defense & Educ. Fund 

99 Hudson St., 16th Fl. 

New York, NY 10013