Memorandum in Response to Petitions for Certiorari

    JAN RUATTOX 

ATTORNEY GENKIZAL 

December 21, 1990 

Clerk, Supreme Court of the United States 
One First Street, N. E. 
Washington, D.C. 20543 

Re: Houston Lawyers’ Ass'n v. Mattox, No. 90-813 
LULAC v. Mattox, No. 90-974 

Dear Sir: 

Enclosed for filing in the referenced cases are forty copies of the 
State Respondents’ Memorandum in Response to Petitions for 
Certiorari, as well as a Certificate of Service. 

Sincerely, 

ie Za 
Special Assistant Attorney General 

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

CC: Counsel of record 

S12/A63=2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2348 

 



Nos. 90-813 and 90-974 

  

3% kx %x *x xX 

In The 
Supreme Court of the United States 

October Term, 1990 

k k 3k k X X 

HOUSTON LAWYERS' ASSOCIATION, et al., 
Petitioners, 

vs 

JIM MATTOX, et al., 
Respondents. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 
Petitioners, 

ys. 

JIM MATTOX, et al., 
Respondents. 

% Xk 3X Xk X X 

CERTIFICATE OF SERVICE 
* 3% kk kk kx xk 

I, Renea Hicks, a member of the Bar of this Court, hereby certify 

that on this 21st day of December, 1990, three copies of the State 

Respondents’ Memorandum in Response to Petitions for Certiorari in 

the above-entitled cases were mailed first class United States mail, 

postage prepaid, to each of the following: 

Charles Stephen Ralston 
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(Rep.; Houston Lawyers' Association, Weldon Berry, Alice 
Bonner, Rev. William Lawson, Bennie McGinty, Deloyd Parker, 
and Francis Williams) 

William L. Garrett 
8300 Douglas, Suite 800 
Dallas, Texas 75225 
(Rep.: League of United Latin American Citizens 
(Statewide), LULAC Local Council 4434, LULAC Local Council 
4451, Christina Moreno, Aquilla Watson, Joan Ervin, Matthew W. 
Plummer, Sr., Jim Conley, Volma Overton, Gene Collins, Al 

 



Price, Mary Ellen Hicks in her personal capacity, and Rev. James 
Thomas) 

  

Edward B. Cloutman lll 

3301 Elm Street 
Dallas, Texas 75226 
{Rep.: Jesse Oliver, Fred Tinsley, and Joan Winn White) 

Robert H. Mow, Jr. 
Hughes & Luce 
1717 Main, # 2800 
Dallas, Texas 77025 
{Rep.: F. Harold Entz, in his personal capacity) 

Seagal V. Wheatley 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 

San Antonio, Texas 78205 
{Rep.; Tom Rickhoff, Susan D. Reed, John J. Specia, Jr., 

Sid L. Harle, Sharon MacRae, and Michael P. Peden, in their 
personal capacities); and 

J. Eugene Clements 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 
(Rep.: Sharolyn P. Wood, in her personal capacity) 

I further certify that all parties required to be served have been 

ine ds or 

RENEA HICKS 
Special Assistant Attorney General 

served. 

  

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

Counsel of Record State 
Respondents 

 



Nos. 90-813 and 90-974 
  

  

IN THE 

Supreme Court of the Unifed Bates. 
OCTOBER TERM, 1990 

  

HOUSTON LAWYERS' ASSOCIATION, et al., 
Bs Petitioners, 
US. 

JIM MATTOX, et al., 
: Respondents. 

% %k %k *k k 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, et al., 

Petitioners, 

US. 

JIM MATTOX, et al., 
Respondents. 

  

ON WRITS OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 
  

MEMORANDUM IN RESPONSE TO PETITIONS FOR 
: - CERTIORARI 
  

JIM MATTOX 
Attorney General of Texas 

~~ MARY F. KELLER 

First Assistant Attorney General 

RENEA HICKS* 
Special Assistant Attorney General — 

JAVIER GUAJARDO 

Assistant Aitomey General 

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

Attorneys for State Respondents 

  

December 21, 1990 * Attorney of Record 
   



 



QUESTIONS PRESENTED 

1. Whether the results standard of 

Section 2 of the Voting Rights Act, as 

amended, applies to elective judicial 

systems? 

2: Whether a vote dilution challenge 

under the results standard of Section 2 of 

the Voting Rights Act, as amended, can be 

established against a system for electing 

judicial officials who function as solo 

decisionmakers? 

 



  

ii 

  

TABLE OF CONTENTS 

  

  

  

  

  

  

  

  

  

  

  

  

  

QUESTIONS PRESENTED i 

TABLE OF CONTENTS ii 

TABLE OF AUTHORITIES iii 

OPINIONS BELOW 2 

JURISDICTION 2 

STATUTES INVOLVED 2 

STATEMENT OF THE CASE 2 

The Proceedings Below. 3 

Statement of Facts 7 

ARGUMENT (STATEMENT) 8 

No Opposition to Court Review 8 

Additional Issues 

Within the Court's Purview 10 

CONCLUSION 11 

APPENDIX 

Order of November 14, 1989 la 

Order of November 27, 1989 3a 

Order of December 26, 1989 6a 

Order of December 28, 1989 7a 

  

  

  

  

Order of January 2, 1990 (w/o Att. A)__8a 

Order of January 11, 1990 16a 
  

 



  

iii 

TABLE OF AUTHORITIES 

Cases. 

Allen v. State Board of Elections, 

393 U.S. 544 (1969) 

Pages: 

  

Brooks v. State Board of Elections, 

111 S.Ct. 288 (1990) 
  

Brooks v. State Board of Elections, 

Civ. No. 288-146 
  

Chisom v. Roemer, No. 90-757 10 
  

Chisom v. Roemer, 917 F.2d 187 

(bth Cir. 1990) 
  

Haith v. Martin, 618 F.Supp. 410 (E.D. N.C. 

  

1985), aff'd, 477 U.S. 901 (1986) 

Mallory v. Eyrich, 839 F.2d 275 

(6th Cir. 1988) 
  

MABA v. Texas, Civ. Action No. MO-90-CA- 

(W.D. Tex.) 

171 

3.9 
  

Thornburg v. Gingles, 478 U.S. 30 (1986) 4 

  

Whitcomb v. Chavis, 403 U.S. 124 (1971)4, 10, 11 

Statutes and Rules: 

42 11.S.C. 8 1973 passim 

42 11.S.C. 8 1973c 8,9 
   



  

iv 

  

28 U.S.C. § 1254(1) 2 
  

Tex. Const., art. V., § 7al(i) 7 
  

Rule 15.1, Rules of the Supreme Court 2 

   



  

MEMORANDUM IN RESPONSE TO PETITIONS 

FOR CERTIORARI 

  

This memorandum, filed on behalf of the 

state officials who were official-capacity defendants 
in the district court,! responds to two petitions for 

writs of certiorari arising from the same decision 

and presenting virtually identical questions for 

review. The two petitions are Houston Lawyers’ 

Association v. Mattox, No. 90-813, and League of 

United Latin American Citizens, Inc. v. Mattox, No. 

90-974. The petitioners in these two cases will be 

referred to as "HLA" in the case of No. 90-813 and 

"LULAC" in the case of No. 90-974. 

  

} These respondents are: the Attorney General of Texas (Jim 
Mattox); the Secretary of State of Texas (George S. Bayoud, Jr.), and 
the thirteen members of the Judicial Districts Board of Texas. The 
Judicial Districts Board is comprised of the Chief Justice of the 
Supreme Court of Texas (Thomas R. Phillips), the Presiding Judge of 
the Court of Criminal Appeals of Texas (Michael J. McCormick), the 
President of the Texas Judicial Council (Judge Joe Spurlock, II), an 
attorney (Leonard E. Davis) appointed by the Governor of Texas, and 
the Presiding Judges of the nine Administrative Judicial Regions in 
Texas (Judges Pat McDowell, Thomas J. Stovall, Jr., B. B. Schraub, 

John Cornyn, Darrell Hester, Sam B. Paxson, Weldon Kirk, Jeff 
Walker, and Ray D. Anderson). This memorandum will refer to them 
collectively as "state officials." Two Texas state district judges -- one 
from Harris County and one from Dallas County -- intervened in the 
district court proceeding as defendants in their personal capacities only. 
This memorandum is not filed on their behalf. Likewise, this 

memorandum is not filed on behalf of six Texas state district judges 
based in Bexar County, Texas, who appealed the district court's denial 
of their attempted intervention but failed to obtain an intervention 
ruling from the Fifth Circuit. An attorney (Mr. Wheatley) purporting 
to represent them has entered an appearance in this Court. Insofar as he 
is appearing to represent them in their official capacities as state 
officials, the Attorney General of Texas challenges the attorney's legal 
authority to appear.  



    

2 

OPINIONS BELOW 

HLA's Appendix omitted four district court 

orders modifying its Memorandum Opinion and 

Order of November 8, 1989, HLA App. 183a-304a. 

It also omitted the district court's two orders on 

remedy. - The omitted: orders constitute ithe 

appendix following this memorandum. 

JURISDICTION 

HLA and LULAC invoke this Court's 

jurisdiction under 28 U.S.C. § 1254(1) to review 

the Fifth Circuit's decision of September 28, 1990. 

STATUTES INVOLVED 

HLA's petition, at 3, omits from the end of 
its quotation of subsection (a) of the current 

version of Section 2 of the Voting Rights Act the 

phrase "in contravention of the guarantees set forth 

in § 1973b of this title, as provided in subsection 

(b) of this section." LULAC's petition, at 2-3, 

contains the complete text of Section 2. 

STATEMENT OF THE CASE 

The Fifth Circuit opinion accurately 

summarizes the procedural history of this case; 

however, heeding the Court's Rule 15.1 admonition 

to respondents to address any perceived 

misstatements of fact or law in certiorari petitions 

which potentially bear on the issues before the 

Court, the state officials supplement the Fifth 

Circuit's summary in response to some of the 

statements in the petitions of HLA and LULAC. 

   



  

The Proceedings Below 

At the time of trial in September, 1989, the 

district court had before it constitutional and 

statutory challenges to the Texas system of electing 

judges in ten Texas counties, not eleven as stated 

by HLA and not nine as stated by LULAC. The ten 

targeted counties contained 172 of the then-extant 

384 (not 375) judicial districts in Texas. Now, the 

ten targeted counties contain 174 of the 386 

judicial districts in Texas.2 

In its November 8th liability decision, as 

modified in four subsequent orders, the district 

court rejected the plaintiffs’ constitutional claims. 
11: found that the "present system” {is not 

maintained as a tenuous pretext for discrimination. 

HLA App. 283a. It later determined that the 

plaintiffs failed to prove "that the present at large 

system for electing State District Judges in the 

State of Texas was instituted with the specific 

intent to dilute, minimize or cancel the voting 

strength of Black and/or Hispanic voters." HLA 

App. 302a. No one appealed this determination. 

  

2 Awaiting decision by a three-judge federal district court in 
Texas is a challenge under Section 5 of the Voting Rights Act, as 
amended, to 13 of the 386 judicial districts in Texas, plus four judicial 
districts which will operate only if certain as-of-yet unmet preconditions 
are satisfied (and which would bring the total number of Texas judicial 
districts to 390). Six of the 13 (and 10 of the total of 17) newly 
challenged districts are in the ten counties targeted in this lawsuit. The 
case, tried on December 12, 1990, is Mexican American Bar 
Association of Texas, et al. v. Texas, et al., Civ. Action No. MO-90- 
CA-171 (W.D. Tex.) ("MABA"). The challenge, lodged at overlapping, 
but not wholly contiguous, targets by private plaintiffs and the United 
States, principally is based on the November 5, 1990, letter from the 
Department of Justice's Assistant Attorney General for Civil Rights, 
HLA App. 305a-308a, as substantially modified by his letter of 
November 20, 1990, which is not in HLA's Appendix.  



  

4 

Tellingly, HLA and LULAC offer differing 

characterizations of the constitutional challenge 

rejected by the district court. HLA characterizes 

its challenge as one against "the at-large, winner- 

take-all, majority vote, numbered post 

requirement” for electing district judges. HLA 

Pet., at 5. LULAC characterizes the challenge more 
narrowly as one directed at a state constitutional 

provision establishing the manner by which 

smaller-than-countywide judicial districts may be 

created. LULAC Pet., at 6. The breadth of the 

district court's decision on the constitutional issue 

indicates that HLA's characterization is nearer the 

mark. 

Invoking the three-part test of Thornburg v. 

Gingles, 478 U.S. 30 (1986), and canvassing other 

factors enumerated in the Senate Report on the 

1982 amendments to the amended Section 2, the 

district court found unintentional vote dilution in 

all the targeted judicial districts in all the targeted 

counties and, consequently, a violation of the 

effects standard established in Section 2 of the 

Voting Rights Act. 

In the course of reaching this result, the 
district court rejected the state officials’ argument 

that any analysis of the plaintiffs’ claim of 

unintentional vote dilution must take into account 

evidence about the impact of partisan voting 

patterns on electoral outcomes. Despite its 

characterization of Whitcomb v. Chavis, 403 U.S. 

124 (1971), as having rejected a racial vote 
dilution challenge on the ground that partisan 

voting best accounted for electoral outcomes, the 

district court concluded that "[p]arty affiliation is 

simply irrelevant|.]" HLA App. 287a (emphasis 
added). 

   



  

5 

The district court thus refused to assess in 

any fashion the evidence offered to demonstrate 

that partisan voting patterns best accounted for 

electoral outcomes: in ‘each ‘of the targeted 

counties. The facts relevant to HLA's statement, 

HLA Pet., at 11, that race consistently outweighed 
partisan affiliation in district judge elections in 

Harris County have never been evaluated by a court 

and remain hotly contested. 

Subsequently, the district court ordered 
implementation of a non-partisan, single-member 

district election system for 1990 judicial elections 

in the targeted counties. It is to this specific 

remedy, and to no other, that HLA refers when it 

rather vaguely states that the district court found 

that "an alternative electoral scheme" would 

provide equal opportunity to minority voters, HLA 

Pet., at 12. 

Through separate timely notices, the state 

officials first appealed the liability decision of 

November 8, 1989, and, later, the subsequent 

remedial orders of January 2, 1990, and January 

11,1990.) On:January 10, 1990, in an event 

omitted from HLA's petition, the state officials filed 

an emergency motion to stay the district court's 

remedy. (Other parties had filed stay motions 

earlier.) The Fifth Circuit filed its stay order on 

January 11, 1990. 

The Fifth Circuit panel, in a two-to-one vote, 

held that unintentional vote dilution claims could 

not be established against Texas trial judges whom  



    

6 

the district: court’ had: found “to 'be "sole, 
independent decision makers," HLA App. 289a.3 

The Fifth Circuit in an in banc decision on 

September 28, 1990, held that the effects 

standard of Section 2 is inapplicable in challenges 

to systems for electing judges. Five members of 
the Fifth Circuit joined the second part of a 

concurring opinion by Judge Higginbotham 

adopting the rationale that vote dilution claims 

under Section 2's effects standard cannot be 

established against solo decisionmaker judgeships. 

Chief Judge Clark filed a special concurrence for 

himself only, and Judge Johnson was the sole 

dissenter from the court's judgment. 

LULAC misleadingly characterizes the 

district court's findings on vote dilution as 
"undisturbed on appeal." LULAC Pet., at 8 n.3. The 

more accurate characterization is that they were 

"unaddressed" on appeal. A myriad of legal and 

factual disputes lying beyond the basic statutory 

coverage question remain unaddressed thus far at 

the appellate level. Many of them, including one of 

overwhelming significance (the relevance of 

partisan voting patterns to vote dilution analysis), 

have importance in voting rights law beyond the 

sphere of judicial elections and will have to be 

addressed by the Fifth Circuit on remand and 

perhaps subsequently by this Court even if HLA and 

LULAC prevall on the questions they have 

presented to the Court. 

  

3 Contrary to the implication in HLA's petition, at p. 8, this 
case and the Chisom case out of Louisiana were not argued together 
before the Fifth Circuit panel on April 30, 1990. They were argued 
separately and focused on different issues. 

   



  

Statement of Facts 

The state officials here seek only to correct 

certain omissions or misstatements in the 

certiorari petitions which appear potentially 
relevant to the basic coverage issues presented to 

the Court. As already explained, the Fifth Circuit 

did not have occasion to address the many facts in 

this case concerning, for example, electoral 

outcomes in the targeted counties over the last 

decade. Those facts are largely irrelevant in the 

case's posture before this Court, and the state 

officials will not undertake to refute every shade of 

error in HLA and LULAC's recitation..of .the 

underlying facts. 

Texas elects its district judges through 

partisan elections. Contrary to HLA's statement 

that both primary and general elections for state 

district judge have a majority vote requirement, 

HLA Pet., at 9-10, only the party primary elections 

have such a requirement. A plurality suffices for 

victory at the general election. 

HLA is technically incorrect in its statement 

that every targeted county elects more than one 

district judge, HLA Pet., at 10. Crosby County is 

implicated by only one of the challenged judicial 

districts, the 72nd, which encompasses Lubbock 

and Crosby counties. 

HLA also is incorrect in the statement 

opening its recitation of the facts of the case that 

Texas judicial districts may be no smaller than an 

entire county, HLA Pet., at 9. Section 7ali) of 

Article 5 of the Texas Constitution permits the 

voters of a county the opportunity to authorize the  



    

8 

creation of judicial districts smaller than the entire 

county. 

ARGUMENT (STATEMENT) 

No Opposition to Court Review 

The state officials do not oppose this Court's 

granting of HLA and LULAC's petitions for writs of 

certiorari. The questions raised are of undoubted 
significance to the nation's jurisprudence, many of 

its state judicial systems, and minority voters. 

Furthermore, the state officials are 

constrained to concede that the in banc Fifth 

Circuit decision of September 28, 1990, conflicts 

with the earlier Sixth Circuit decision in Mallory v. 

Eyrich, 839 F.2d 620 (6th Cir. 1988), although the 

two decisions do not run on such parallel tracks 

that they conflict in every particular element of 

their analysis. It is enough that there is a basic 

conflict in their results. 

The preceding concession by the state 

officials should in no way be viewed as a concession 

that the Fifth Circuit reached an incorrect result. 
It did not; however, as the state officials 

understand it, the correctness of the result below 

is not a matter with which the Court is particularly 

concerned at this stage of its review process. 

Likewise, the concession. of the 

appropriateness of this case for plenary (not 

summary) review by the Court is not a concession 

of LULAC's argument that the Fifth Circuit decision 

conflicts with the Court's summary affirmances in 

two cases involving the interaction of Section 5 of 

the Voting Rights Act and judicial elections, 

Georgia State Board of Elections v. Brooks, Civ. No. 

   



  

9 

288-146 (S.D. Ga. 1989), affd mem., 111 S.Ct. 288 

(1990), and Haith v. Martin, 618 F.Supp. 410 (E.D. 

N.C. 1985), .affd mem., 477 1.S...901: (1986). 

Despite the oft-repeated claim that the two 
provisions, Section 2 and Section 5, operate in 

tandem, they remain different provisions, with 

different language, different applications, and 

different repercussions. Holding, as the Fifth 

Circuit did, that the effects standard of Section 2 

does not cover racial vote dilution challenges to 

judicial elections does not present a conflict with 

summary affirmances in Section 5 voting rights 

cases affecting judges which would warrant this 
Court's review. 

Having distinguished Section 2 cases from 

Section 5 cases, the state officials do note a 
possible additional reason why the Court should 

grant certiorari in this case. The United States, 

through its Department of Justice, has indicated 

that it is not bound, even in Texas, by the Fifth 

Circuit's LULAC decision on Section 2's reach. See 

HLA App. 307a.4 Instead, argues the United States, 

Section 5 empowers it to independently assess 

Section 2's reach in Texas, regardless of governing 

Section 2 law in the Fifth Circuit. 

Texas is a covered jurisdiction under Section 

5. Surely, the United States, through the Justice 

Department, will acknowledge that it is at least 

bound by a decision of this Court on the reach of 

Section 2. Thus, a clear statement from this Court 

  

4 During the trial on December 12, 1990, in the MABA case, 

supra at 3 n.2, the attorney for the United States continued to defend 
this position, which appears to contravene the Court's assessment that 
the United States Attorney General "does not act as a court” in 
exercising his Section 5 powers of review of state legislation, Allen v. 
State Board of Elections, 393 U.S. 544, 549 (1969).  



    

10 

on Section 2's reach will enable Texas and the 

United States to agree to be bound by the same 

judicial rulings. Texas should not be compelled to 

defend its position on Section 2's reach twice, 

once before the Fifth Circuit and, afterwards, 

before the United States Attorney General. 

Additional Issues Within The Court's Purview 

HLA urges the Court to hear this case "at the 

same time" as the case of Chisom v. Roemer, No. 

90-757, HLA Pet., at 22. Whatever may be meant 

by this request, the state officials suggest that the 

Court not consolidate this case with Chisom. No 

claims of intentional discrimination remain in this 

case, whereas, at least as the undersigned counsel 

understands it, such claims do remain part of the 

Chisom case. 

HLA also urges the Court to review the 

subsidiary question of whether the principle 

announced in the Fifth Circuit's panel decision 

concerning unintentional vote dilution claims and 

solo decisionmakers is correct. HLA's argument 
for this approach is that leaving it for the Fifth 

Circuit to decide on remand (if, indeed remand 

ultimately is necessary) would be a "time- 

consuming and pointless course." HLA Pet., at 25. 

While the state officials have no quarrel with 

HLA's suggestion, they would add that HLA's 

rationale also suggests the advisability of this Court 

also taking up another question, if it ultimately 

agrees with the petitioners on their arguments. 

That question is whether Whitcomb v. Chavis, 

supra, remains good law under Section 2 of the 

Voting Rights Act. As explained. earlier, the 
district court, through its treatment of partisan 

voting patterns as a legal and factual irrelevancy, 

   



  

11 

treated Whitcomb as a dead letter in Section 2 vote 

dilution analysis. 

There is no reason for this Court, should it 

disagree with the state officials on the scope of 

Section 2's coverage, not to reach this additional 

critical question in voting rights law. It potentially 

is a critical question in this case, and it assuredly 

will be a critical question in the litigation ensuing 

from the upcoming round of decennial 

reapportionment. 

CONCLUSION 

This case is a critical one for states which 

elect their judicial officers. The state officials, 

while vigorously defending the correctness of the 

result reached by the Fifth Circuit, recognize that 

the questions presented here need to be 

definitively settled. The requisite definitiveness 

can occur nowhere but here -- especially in light of 

the United States' puzzling intransigence on the 

question. Based upon the foregoing matters, the 

state officials do not oppose the Court's granting of 

HLA and LULAC's petitions for writs of certiorari 

and the setting down of these cases for plenary 

review. 

  

 



    

Dec. 21, 1990 

12 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

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 Respondents 
* Attorney of Record 

   



APPENDIX 

 





FILED 

NOV 14 1989 

11.S. DISTRICT. COURT 

CLERK'S OFFICE 

BY /s/ DEPUTY   

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC COUNCIL #4434, § 

ETAL, 8 Civil Action No. 

§ 
VS. 8 MO-88-CA-154 

§ 
JIM MATTOX, ET Al., 8 

ORDER 

Came on for consideration, Dallas County 

plaintiff/intervenors' Motion to Correct Clerical 

Mistake, and after having reviewed the pleadings, 

it is the opinion of this Court that said Motion is 

well taken and it is therefore, 

ORDERED, ADJUDGED and DECREED that: 

1. Dallas County 

plaintiff/intervenors shall be noted in the 

style together with other plaintiff and 

defendant intervenors; and 

2. at the conclusion of the 

paragraph numbered "3." that the following 

descriplion of Dallas County 

plaintiff/intervenors shall be inserted: 

"plaintiff/intervenors from Dallas County, 

Jesse Oliver, Joan Winn White and Fred 

Tinsley, are black attorneys and citizens of 

Dallas County, Texas, each of whom is a 

former district judge from Dallas County,  



    

1989. 

2a 

who was defeated in a county-wide election 

for district judges." 

SIGNED this the 14th day of November, 

/s/ LUCIUS D. BUNTON 

UNITED STATES 

DISTRICT JUDGE 

  

   



  

3a 

FILED 

NOV 27 1989 

U.S, DISTRICT COURT 

CLERK'S OFFICE 

BY /[s/ DEPUTY 
  

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED 

LATIN AMERICAN 

CITIZENS (LULAC), 

COUNCIL #4434 

et al. 

§ 

§ 
§ 

§ 

§ 
Plaintiffs, 8 

AND 8 

HOUSTON LAWYERS 8 

ASSOCIATION 8 

etal, 8 

Plaintiff-Intervenors§ 

V. 8 MO-88-CA-154 

§ 
JIM MATTOX, et al., 8 

State Defendants § 

AND JUDGE § 
SHAROLYN WOOD § 
AND JUDGE F. HAROLD § 

ENTZ 8 

ORDER 

BEFORE THIS COURT is the State 

Defendants’ Motion to alter or Amend this Court's 

Memorandum Opinion and Order of November 8, 

1989 in the above-captioned cause. After this 

Court's Order was signed and entered, it was  



    

4a 

brought to the attention of the Court that there 

were some clerical errors and omissions in this 

Court's Order. This Court is of the opinion that the 

State Defendants’ Motion should be granted in part 
and denied in part. Accordingly, 

IT IS ORDERED that this Court's previous 

Memorandum Opinion and Order be amended in 

part. 

IT IS FURTHER ORDERED that the items 

telephonically communicated to this Court by 

Plaintiffs’ Counsel be amended as follows: 

1, The top of page 13 jusi. before Finding of 

Fact number four be .amended. to. reflect. ihe 
following: 

Plaintiff-Intervenors from Dallas County 

include Joan Winn White, Fred Tinsley and Jesse 

Oliver. 

2. The last line of the second paragraph of 

Finding of Fact number eight on page 17.is 

amended to read, " ... greater than fifty .percent 

(50%) Hispanic voting age population were 

possible." 

3. . The second sentence of the first full 

paragraph on page 21 is amended to read, 

"Minority residents are concentrated largely in the 

Northeastern, East Central and Southeastern 

sections of Midland County." 

4. Conclusion of Law number 16, as 

continued at the top of page. 90, line one, is 

amended to include "Hispanic" after "Black" and 

the appropriate comma. 

IT IS FURTHER ORDERED that items 1-3, 6 

& 11 of the State Defendants’ Motion are hereby 

GRANTED. 

IT IS FURTHER ORDERED in connection 

with item 5 of the State Defendants’ Motion that 

Finding of Fact 20.a. on page 49 is amended as 

follows: 

   



5a 

Dr. Brischetto analyzed three (3) 1988 

countywide judicial elections in Travis County. All 

three elections analyzed were County Court at Law 
Primary Elections. 

IT IS FURTHER ORDERED that in 

connection with item 9 State Defendants' request 

is GRANTED IN PART to reflect that it was the 

1986 Democratic Primary that ‘was. being 

discussed, rather than the Runoff Election. Item 9 

is DENIED in all other respects. 

IT IS FURTHER ORDERED that items 4, 7, 8 

& 10 of the State Defendants' Motion are hereby 

DENIED. 

IT IS FURTHER ORDERED that this Court's 

Memorandum opinion and Order remains 

unchanged in all other respects. 

SIGNED AND ENTERED this the 27th day of 

November, 1989. 

/s/ 

LUCIUS D. BUNTON 

CHIEF JUDGE 

  

 



  

FILED 

DEC 26 1989 

U.S. DISTRICT COURT 

CLERK'S OFFICE 

BY /s/ DEPUTY 
  

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, § 

et al., 8 

Plaintiffs, 8 

8 Civil Action No. 

VS. 8 MO-88-CA-154 

§ 
JIM MATTOX, et al., 8 

Defendants. 8 

ORDER 

On this day came before the Court the State 

Defendants' Rule 60 (a) Motion to Correct Clerical 

Mistake. The motion is GRANTED. The last 

sentence of the last full paragraph on the second 

page of the Court's Order of November 27, 1989, is 

corrected to read as follows: "All three elections 

analyzed were 1988 Democratic Primary elections, 

two of which were for county court at law positions 

and one of which was for a district court position." 

SIGNED and ENTERED this 26th day of 

December, 1939, 

/s/ LUCIUS D. BUNTON   

UNITED STATES 

DISTRICT JUDGE 

   



7a 

FILED 

DEC 28 1989 

CHARLES W. VAGNER, Clerk 

BY /s/ DEPUTY 
  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

VS. NO. MO-88-CA-154 

MATTOX, et al., 

Defendants. wn
 

wn
 

un
 

Wn
 

Un
 

Wn
 

Un
 

ORDER TO CORRECT CLERICAL ERRORS 

lL. In accordance with F.R.Civ.P. 60, the 

Court makes the following corrections of clerical 

mistakes in its Memorandum Opinion and Order of 

November 8, 1989: 

2. On page 12, the following sentence is 

added to Paragraph 2: "Jesse Oliver, a Black from 

Dallas, testified that he is a member of LULAC." 

3, On page 18, the following sentence is 

added to the end of the second complete 

paragraph of Paragraph 9: "This remains true 

when Plaintiffs controlled for voting age population 

of non-United States citizen of Spanish origin." 

Done this 28th day of December, 1989, at 

Midland, Texas. 
  

/s/ LUCIUS D. BUNTON 

UNITED STATES 

DISTRICT JUDGE  



    

FILED 

JAN 2 1990 

U.S. DISTRICT COURT 

CLERK'S OFFICE 

BY /s/ DEPUTY 
  

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED 8 

LATIN AMERICAN 8 

CITIZENS LULAC), 8 

COUNCIL #4434 § 
et al., 8 

Plaintiffs 8 

AND 8 

HOUSTON LAWYERS 8 

ASSOCIATION 8 

et al. 8 

Plaintiff-Intervenors§ 

V. 8 MO-88-CA-154 

§ 
JIM MATTOX, et al., 8 

State Defendants § 

AND JUDGE 8 

SHAROLYN WOOD 8 

AND JUDGE F. HAROLD § 

ENTZ § 

ORDER 

BEFORE THIS COURT are the parties with 

their respective Proposed Interim Plans, Motions 

to Certify this Court's Memorandum Opinion and 

Order, of November 8, 1989, for Interlocutory 

   



9a 

Appeal, and Motion of Bexar County District Judges 

to Intervene in the above captioned cause. 

This case is reminiscent of several lines of a 

recent song, I'm for Love, by Hank Williams, Jr. 

The lyric goes, 

"The city is against the county, 

The county is against the state, 
The state is against the government, 

and 

The highway still ain't paved.” 

In this case the Governor has been against 

the Attorney General, the Attorney General against 

the Legislature, the Judges against this Court, and 

the system is still flawed. This is a regrettable 

situations, but it can’t be helped. The Hank 

Williams song goes on to say "But I'm for love, and 

I'm for happiness.” 

This case was filed on July 11, 1988 and 

originally set for trial on February 13, 1989. The 

Court was persuaded, at least on one occasion, to 

continue the trial to give the Texas Legislature a 
chance to address the issue during its Regular 

Session. This Court continued the above captioned 

cause to April 17, 1989 to await the United States 

Supreme Court's disposition of the Petition for Writ 

of Certiorari in the case of Roemer v. Chisom. The 

Court again continued the case {o July 11, 1989, 

based on oral Motions to Continue made on the 

record during a hearing on Motions to Intervene 

held by this Court on February 27, 1983. The 

Court continued the trial to September 18, 1989, 
because of a conflict of settings with one of the 

attorncys. At the conclusion of the trial in 

September, the Court was requested to hand down 

its opinion prior to the convening of the Texas 

Legislature in Special Session so that a violation (if 

one was indeed found) could be looked at and 

perhaps remedied during the Special Session. 

  

  

 



    

10a 

This Court specifically reserved ruling upon 

Plaintiffs’ Motion for an Order enjoining further use 

of the at-large election scheme in the affected 
counties until the State Legislature had an 

opportunity to offer a remedial plan. The 

Legislature went into Special Session on November 

13, 1989, some five days after entry of this Court's 

November 8, 1989 Order. Governor Clements 

deemed it advisable not to submit the question of 
judicial redistricting to the Special Session. The 

Governor did, however, request that he and this 

Court meet and discuss the matter. The meeting 

was held, and attorneys for both Plaintiffs and 

Defendants were present. The Governor advised 

the Court that no remedy would be forthcoming 

until some time after the March 13, 1990 Primary 

Elections. The Governor requested that the matter 

be delayed until the Regular Session of the 

Legislature in January 1991. He further advised 

the Court that, if this was not satisfactory, he would 

call a Special Session some time in April or may of 

1990 and request the Legislature to study and take 

whatever action might be necessary to remedy the 

situation. 

The timing is perhaps unfortunate. There 

will be a census taken in 1990, which may reflect 

some changes in population in the nine counties 

involved. Our Legislature meets in Regular Session 

only in odd years and inevitably somewhere down 

the line the method of selection or election of 

State District Judges will have to submitted to the 

voters of Texas. The Court is of the opinion that a 

delay until after the Primary Elections are held in 

1990 and a delay until after a Special Session of the 

Legislature is held in late spring of 1990 and a 

further delay of implementation of any solution by 

the Legislature would not be in the interest of 

justice, would further dilute the rights of minority 

   



11a 

voters in the target counties in question, and would 

be inequitable and work an even greater hardship 

on the judges and courts involved. 

Because the Legislature took no action on 

the matter in Special Session in November and 

December, 1989, and the refusal of the Supreme 

Court to grant a writ in Chisom v. Roemer, 853 
F.2d 11186, 1192: (6th. "Cir. 1988), ‘and the 

statements of the Governor of the State of Texas, 
and the imminence of the Primary Elections in 

1990, the Court is not inclined to defer action. 

See Wise v, Lipscomb, 437 U.S. 535 (1978). Under 

these circumstances, this Court is of the opinion 

that it may fashion an interim plan that the law, 

equity and justice require. Chisom, supra, at 1192. 
On December 12, 1989, or shortly thereafter, all 

parties were advised to file any Proposed Plans and 

objections with the Court by December 22, 1989. 

An Agreed Settlement was entered into by and 

between the Plaintiffs and Defendants in this 

matter, but was not approved by some of the 

Intervenors. 

The Court should point out that the State 

Legislature will have still a third opportunity to 

propose a permanent remedy consistent with this 

Court's’ November 8, 1989 Order. should it 

convene, and should it pass legislation in April or 

May of 1990. 

The plan which follows is strictly an interim 

plan for the 1990 elections affecting 115 State 

District Court judicial seats in the nine counties in 

action. Upon consideration of the Motions, 

Responses, Objections, letters, exhibits, 

attachments and arguments of the parties, the 

Court is of the opinion that the following Orders 

are appropriate. Accordingly, 

IT IS ORDERED that the Joint Motion of 

Plaintiffs, Plaintiff-Intervenors and the Attorney 

  

  

 



  

12a 

General of Texas for Entry of a Proposed Interim 

Plan is hereby GRANTED IN PART and DENIED IN 

PART in the following respects: 
1; All Defendants and those acting in 

concert are hereby enjoined from calling, holding, 

supervising and certifying elections for State 

District Court Judges in Harris, Dallas, Tarrant, 

Bexar, Travis, Jefferson, Lubbock, Ector and 

Midland Counties under the current at-large 

scheme. 
2. For the 1990 elections, according to 

the Secretary of State of Texas, one hundred 

fifteen (115) District Court elections are scheduled 

in the counties affected by this Court's Order. The 

following number of District Courts are up for 

election by respective county: Harris (36); Dallas 

(32); Tarrant (14); Bexar (13); Travis (6); Jefferson 

(6); Lubbock (3); Ector (3); and Midland (2). 

Under this Interim Plan, District Court 

Elections in Harris, Dallas, Tarrant and Bexar 

Counties shall be selected from existing State 
Legislative House District lines as indicated in 

Attachment A. District Court Elections in Travis 

County shall be from existing Justice of the Peace 
Precinct Lines. See Attachment A. District Court 

Elections in Jefferson, Lubbock, Ector and Midland 

Counties shall be according to existing County 

Commissioner Precinct Lines. Id. Each county 

shall be designated by a District Number, and each 

election unit by subdistrict number. 
3. Each candidate shall run within a 

designated subdistrict and be elected by the voters 

in the: subdistrict. Consistent with the: Texas 

Constitution, each candidate must be a resident of 

his or her designated judicial district (which is 

countywide), but need not be a resident of the 

election subdistrict. 

   



13a 

4. Elections shall be non-partisan. Each 

candidate shall select the election subdistrict in 

which he or she will run by designated place. 

Candidates in Dallas, Tarrant, Bexar, Ector and 

Midland Counties shall file an application for a 

place on the election ballot with the County 

Elections Administrator. Tex. Elec. Code Ann 

§31.031 et seq. (Vernon 1986). Candidates in 

Harris, Travis, Jefferson and Lubbock counties shall 

file such an application with the County Clerk of 

those counties or the County Tax Assessor- 

Collector, depending on the practice of that 

particular county. Tex. Elec. Code Ann. §§ 31.1031 

et seq., 31.091 (Vernon 1986). 

5. All terms of office under this Interim 

Plan shall be for four (4) years. Tex. Const. Art. V. 

87 (1976, amended 1985). This Court is of the 

opinion that a two-year term is unfair to both those 

beginning and those ending their judicial careers. 

6. Elections shall take place the first 
Saturday of May, 1990, with Run-off Elections to 

take place the first Saturday of June, 1990. Tex. 

Elec. Code. Ann. 841.0011b) 5). {Vernon Supp. 

1989). 

7. An application for a place on the non- 

partisan election ballot must be filed not later than 

6:00 p.m. on March 26, 1990. Except as modified 

herein, all provisions of the Texas Election Code 

shall be applicable to the non-partisan elections 

herein ordered. 

8. In 1991, the Administrative Judge of 

the countywide district shall designate: 

(1) Any courts of specialization in 

terms of docket preference; and 

(2) The District Court numbers in 

use prior to the Interim Plan's adoption. 

Successful incumbents shall have preference 
in such designation.  



   

  

14a 

9. Current jurisdiction and venue of the 

District Courts remain unaffected, subject to 

modification by rule of the Supreme Court of Texas. 

10. There shall be no right of recusal of 

judges elected under this plan. This Court is of the 

view that such a measure would be extremely 

disruptive to District Court . dockets, 

administratively costly and could be the source of 

abuse by attorneys attempting to gain continuances 

of their cases. 

IT IS FURTHER ORDERED that the above 

Interim Plan applies only to the 1990 State District 

Court Judicial Elections in the nine target counties 

at issue in this case. If the Texas Legislature fails 

to fashion a permanent remedy by way of a Special 
Called Session in the spring of 1990, then this 

Court will put into effect a Permanent Plan for the 

election of State District Court Judges in the nine 

target counties in question. 

IT IS FURTHER ORDERED that the Motions 

of Defendant-Intervenor JUDGE SHAROLYN WOOD, 

Defendant-Intervenor JUDGE HAROLD ENTZ and 

the State Defendants to Certify this Court's 

Memorandum Opinion and Order of November 8, 
18989 as modified for clerical corrections on 

November 27, 1989 and December 26, 1989 for 

Interlocutory Appeal pursuant to 28: U.S.C. 

§1292(b) is hereby GRANTED IN PART. 

IT 1S FURTHER ORDERED that io the 

extent that such Motions request a stay of further 
proceedings in the above captioned cause such 

Motions are hereby DENIED. 

IT IS FURTHER ORDERED that the Motion 

of Bexar County Judges TOM RICKOFF, SUSAN D. 

REED, JOHN J. SPECIA, JR., SID LL." HARLE, 

SHARON MACRAE AND MICHAEL P. PEDEN to 

Intervene as Defendants in the above captioned 

cause is hereby DENIED. 

   



15a 

This Court, of course, has granted the right 

for an Interlocutory Appeal. The request to stay 

proceedings pending the appeal is DENIED, 

because the Court does not feel that District Judges 

should be continued in office for an indefinite 

period of time. The right of the electorate to 

select judges in the year 1990 should not be 

dented unless, of course, interim action is taken by 

the Texas Legislature which changes the method of 
the selection and election of judges. The pressing 

need for the administration of justice in our state 

courts is recognized. It is the opinion of this Court 
that the plan set forth herein is the least disruptive 

that can be effected at this juncture. To allow 

Primary Elections in 1990 to be held in the same 
manner as they were in 1988 would be contra to 

the dictates of Fifth Circuit law and the 

Congressional Mandate of the Voting Rights Acts. 
Recognition of the November 8, 1989 Judgment 

has far-reaching effects is the reason for the 

allowance of an expedited appeal, and again the 

Court would encourage the Governor to call a 

Special Session to address the matter and, further, 

would request that the State Legislature remedy 

the current situation, as the Court is firmly of the 

opinion that any remedy other than this interim 

remedy should be done by duly elected legislators. 

SIGNED and ENTERED this 2nd day of 

January, 1990. 

/s/ 
LUCIUS D. BUNTON 

Chief Judge 

   



    

16a 

FILED 

JAN 11 1990 

U.S. DISTRICT COURT 

CLERK'S OFFICE 

BY /s/ DEPUTY 
  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED 

LATIN AMERICAN 

CITIZENS (LULAC), 

et al. 

JIM MATTOX, 
Attorney General 

of the State of Texas, 
et al. 

§ 
§ 
§ 
§ 
§ 

V. § MO-88-CA-154 
§ 
§ 
§ 
§ 
§ 

ORDER 

BEFORE THIS COURT is the Motion of 

Attorney General Jim Mattox on behalf of the State 

of Texas to Alter this Court's Order of January 2, 

1990; the Response thereto of Harris County 

District Judge Sharolyn Wood; and the Response 

thereto of Plaintiffs LULAC et al., Plaintiff- 

Intervenors Jesse Oliver, et al., and Plaintiff- 

Intervenors Houston Lawyers Association et al. 

Having considered said Motion and Responses, the 

Court is of the opinion that said Motion should be 

denied. 
The Court is further of the opinion that 

other changes to certain terms of the injunction 

   



17a 

contained in that January 2, 1990 Order are 
proper. Specifically, the Court herein modifies the 

Order for the limited purpose of delaying the 

elections ordered pursuant to its Order, and 

removing the expedited rights of appeal previously 

granted in this matter. 

The Court believes that delaying judicial 

elections pursuant to its Order of January 2, 1990 

is desirable for several reasons. First, the Court 
notes that Governor Bill Clements recently called a 

special session of February 27, 1990, to deal 

specifically with Texas' system of selecting judges. 

In the interests of comity and Federalism, 

legislatively directed remedial measures are 

preferable to measures ordered by this Court. 
Delaying the judicial elections ordered by this 

Court will serve these interest by giving the 

Legislature additional time. Second, judicial 

elections will still take place in 1990 under the 

modified Order, thus minimizing disruption of the 

Texas judiciary. Third, delaying court-ordered 

judicial elections will provide additional time for 

the United States Department of Justice to 

consider any remedy adopted by the Legislature 

before such elections occur. Fourth, delaying these 

elections will remove the need for expedited 

appeal to the Fifth Circuit by providing additional 

time for that Court to consider and rule upon this 

Court's Order before court-ordered judicial 

elections occur. 
The Court urges the Legislature to consider 

in its deliberations a quotation from President 

Harry S. Truman, who said, "[w]e must build a 

better world, a far better world--one in which the 

eternal dignity of man is respected.”  



    

  
18a 

LI. The Attorney QCeneral's Motion. is Properly 

Asserted Pursuant to Rule 59(e), Fed. R. Civ. P., and 
This Court Retains Jurisdiction to Modify Its Order 

of January 2, 1990. 

The Defendant-Intervenor Judge Wood of 

Harris County appears to question the effect of the 
Attorney General's Motion on the notices of appeal 

filed in this case by herself and Judge Entz, and 

the powers of this Court to modify the terms of the 
injunction contained in its Order of January 2, 

1990. There is no serious dispute before the Court 

that the parties to this case have the right under 
28 U.S.C. Section 1292(a) (1) to appeal this Court's 

Order of January 2, 1990. If that Order were a 

judgment as to which the Attorney General's 

Motion is properly asserted under Rule 59(e), then 

the Parties’ notices of appeal are ineffective, the 

Court retains jurisdiction to modify the judgment, 

and the deadlines for appeal are extended 

according to Fed. R. App. P. 4(b) (4). The Court 

believes that Order is such a judgment, and that 

this is the correct analysis. 
A "judgment' for purposes of Rule 59(e), 

which provides for the amendment of a judgment 

and the postponement of the time for filing an 

appeal, is defined in Rule 54(a). See Wright, Miller 

& Kane, FEDERAL PRACTICE AND PROCEDURE 

Section 2651 and cases cited therein. Rule 54(a) 

defines judgment as an "appealable order." 28 

U.S.C. Section 1292(b) undisputedly makes this 

Court's Order of January 2, 1990 appealable of 

right. Therefore a motion to alter or amend the 

judgment is properly asserted under Rule 59(e). 

The Attorney General's Motion would 

properly. be brought : under Rule 62(c), if 

jurisdiction of the case were already lodged in the 

court of appeals, for example where a Rule 59(e) 

  

  

  

   



19a 

motion was not timely made and appeal was taken, 
or a Rule 59(e) motion was made and ruled upon, 

and appeal subsequently taken. 

The Court assumes for the purposes of this 

Motion that there exist other circumstances that 

would make a Rule 59(e) Motion improper here, 

although the Court takes pains to note that the 

parties have not cited the Court to. such 

circumstances, and the Court in examining its 

jurisdiction has so far found none. In that event, 

Judge Wood contends, the Attorney General's 

Motion is one properly asserted under Rule 62(c), 

under which Rule this Court's modification powers 

are curtailed. 

The Court also assumes that its sua sponte 

alteration of a judgment, that is independent of and 
goes beyond the alteration requested by a party 

under Rule 59(e), might be reviewed under the 

standard of Rule 62(c). The problem is that the 

timely filing of a Rule 59(e) motion, which the 

Court believes has been done here, suspends the 

appeal process and renders Rule 62(c) technically 

inapplicable because the case is not on appeal. 

Absent appeal, a district court has complete power 

over its interlocutory orders. Ideal Toy Corp. v. 

Saveo Doll Corp... 302 F.2d 623 (2nd Cir. 1962). 

It is important to note that this Court has 

consistently voiced its preference for the Texas 

authorities devising a plan for judicial elections 

consistent with the Voting Rights Act, with 

reasonable dispatch, and therefore has considered 

and styled its January 2, 1990 injunction as an 

interim plan. The Order is, of course, binding and 

effective if, and to the extent, the Legislature fails 

to act. If the Legislature devises an acceptable plan 

under the Voting Rights Act this lawsuit, and the 
Court's injunction along with it, would likely 

become moot. Of course, an argument could be 

  

  

 



  

  

  

20a 

made that this Court's interim plan of redistricting, 

because conditional in this sense, is not a judgment 

at all until the contingency has been removed, and 

therefore is not even appealable. In any event, this 

Court's overall plan of encouraging legislative 

redistricting is, the Court believes, relevant to 

considering, under the law of Rule 62(c), what 

constitutes a modification of an injunction "in aid of 

appeal.” 

In sum, the Federal Rules of Civil Procedure 

do not seem to provide a neat category for 

classifying motions on equitable remedies such as 

the one at issue. This Court is of the opinion that 
the Attorney General's Motion is one properly 

brought under Rule 59(e) because this Court's 

Order of January 2, 1990 is a "judgment" within 

the meaning of Rule 54(a). However, in the event 

this characterization is error, as Judge Wood seems 

to contend it is, the Court believes it proper to 

apply the more restrictive analysis under Fed. R. 

Civ. P. Rule 62(b) as set out in cases cited by the 

parties. 

II. Alternatively, This Court Possesses Jurisdiction 

to Make Modifications to Its January 2, 1990 Order 

as Ordered Herein Pursuant to Rule 62(b), Fed. R. 

Civ. D, 

  

Judge Wood challenges this Court's 

jurisdiction to entertain a motion to modify its 

January 2, 1990 Order, and presumably as well the 

Court's jurisdiction to modify said Order sua 

sponte. However, despite Judge Wood's artful 

choice of quotations from pertinent case law, the 

Court is not persuaded that it lacks jurisdiction to 

make certain changes in its Order even if the 

injunction contained therein is properly on appeal. 

   



21a 

Once appeal is taken form an interlocutory 

judgment (as the Court assumes for discussion 

purposes that is has been here), Fed. R. Civ. P. 

62(c) provides that "the court in its discretion may 

suspend, modify, restore or grant an injunction 

during the pendency of the appeal . . . ." The scope 

of this Court's power under Rule 62(c) has most 

recently been the subject of analysis by the Fifth 

Circuit in Coastal Corp. v, Texas Eastern Corp., 869 

F.2d 817 (5th Cir. 1989). Under the holding in 

Coastal, this Court is definitely constrained insofar 

it lacks authority to dissolve the injunction on 

appeal. Id. at 821. But regarding less radical 

modifications, the Court is directed to limit the 

exercise of its power to "maintaining the status 

quo." Id. at 820. 

Judge Wood would have the Court interpret 

"maintaining the status quo" to mean that this 

court may do nothing except "in aid of the appeal.” 

Willie v. Continental Oil Co., 746 F.2d 1041 (5th 

Cir. 1984). The Fifth Circuit applied this directive 

in Willie to divest the District Court of jurisdiction 

to modify a judgment under Rule 60(b) because of 

inadvertence . or cxcusable neglect, where 

substantive rights of the parties were at stake. Id. 

at 1045. In Willie, the parties sought to have the 

District Court correct its judgment to incorporate a 

mistakenly-omitted stipulation regarding the 

percentage of liability to be borne by one of the 

defendants. The District Court was empowered to 

deny such a motion because denial would be "in 

furtherance of the appeal.” But had the District 

Court wished to grant the Rule 60(b) motion, leave 

of the Court of Appeals would have been required. 

Id. at 1046. 

In the Coastal case, however, the Fifth 

Circuit seemed to impose a different standard of 

"maintaining the status quo," and defining that 

  

 



  

  
22a 

standard to mean that a district court may not take 
action, such as vacating an injunction, that would 

presumably divest the court of appeals from 

jurisdiction while the issue is on appeal. Coastal, 
supra, at 820. Cases cited in the Coastal opinion 

consistently deal with granting or staying 

injunctions during the pendency of appeal. Id. 

Consistent with the analysis expressed in the 

Attorney General's brief, this Court interprets 

Coastal to say that it may not vacate the injunction 

now in issue while it is on appeal. No such action 

is contemplated. 

Even if the "in aid of appeal" standard set out 

in Willie should guide the Court, it would seem that 

the modifications now ordered, which primarily 
give the Legislature additional time to consider 

redistricting, does not violate that standard. 

Accordingly, this Court's Order of January 2, 

1990 will be amended. 

IT IS ORDERED that this Court's Order of 

January 2, 1990 be, and is hereby amended 
pursuant to the following directive only. 

Item numbered "6" at pages 6 and 7 is 

amended to read as follows: 

6. Elections shall take place on 

November 6, 1990 with runoff elections, if 

and where necessary, on December 4, 1990. 

Item numbered "7" at page 7 is amended to - 

read as follows: 

7. An application for a place on the 

non-partisan election ballot must be filed not 

later than 6:00 p.m. on September 19, 1990. 

Except as modified herein, all provisions of 

the Texas Election Code shall be applicable 

to the non-partisan elections herein 

ordered. 

   



23a 

IT IS FURTHER ORDERED that any rights of 

expedited appeal granted in this matter be, and are 

hereby RESCINDED. 

SIGNED AND ENTERED this 11th day of 

January, 1990. 

/s/ 

LUCIUS D. BUNTON 

CHIEF JUDGE