Motion Pursuant to Rule 59(a) & (e); Proposed Order

    OF TEXAS 

JIM PFIATTOX 

ATTORNEY GENERAL 
November 16, 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’ Motion Pursuant to 
Rule 59(a) & (e), along with a proposed Order. 

    enea Hicks 

Special Assistant Attorney General 

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

(512) 463-2085 

CC Counsel of record 

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512/463-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548 

 



  

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MO-88-CA-154 

VS. 

JIM MATTOX, et al., 

Defendants. LO
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MOTION PURSUANT TO RULE 59a) & (e) 

The State Defendants hereby move the Court, pursuant to Rule 59(a) 

and (e) of the Federal Rules of Civil Procedure, to revise its Memorandum 

Opinion and Order (signed and entered on November 8, 1989, and 

hereinafter referred to as the "November 8th Memorandum") as set forth 

below. By filing this motion and directing it only to narrow issues, the 

State Defendants do not abandon or waive any of the arguments or 

objections over either legal or factual matters which they already have 

presented to the Court in this case nor do they indicate assent to any 

findings, conclusions, or orders contained in the November 8th 

Memorandum, but unaddressed here. 

x In Finding of Fact No. 9, amend the fourth sentence of the 

first full paragraph on page 18 by deleting the phrase "combined minority" 

which modifies "single member district." As the first sentence on page 17 

of the finding notes, the plaintiffs offered a case only on behalf of Hispanic 

voters in Travis County. They offered no evidence on a combined minority 

district. 

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2. In Finding of Fact No. 11, amend the third sentence in the 

second full paragraph on page 19 by adding "and Hispanic" between 

"Black" and "voting age population." As the first sentence of the finding 

notes, the plaintiffs offered a case on behalf of the combined Black and 

Hispanic voters in Lubbock County. Their "Gingles 1" district was a 

combined minority district, not a Black district. 

3. In Finding of Fact No. 16.n, amend footnote 23 on page 29 

by deleting the name of Cheryl Irvin from the list of Black-preferred 

candidates and amend the last sentence on that page by changing "Five" to 

"Four." If the Court is adopting Dr. Engstrom's definition of Black-preferred 

candidate (discussed in the last sentence on page 25, carrying over to page 

26, in Finding of Fact No. 16.e), the evidence demonstrates that Cheryl 

Irvin does not fit that definition. 

4, In Finding of Fact No. 18.j, amend the second sentence of 

the finding on page 43 by adding at its end the phrase "even though there 

was no racially polarized voting in two of the three elections." The 

addition of this phrase more accurately depicts and explains the finding 

and is taken from the conclusion stated in the sixth column of Plaintiffs’ 

Exhibit Ta-02, which shows that there was no racially polarized voting in 

the two 1986 general election judicial contests analyzed. 

5: In Finding of Fact No. 20.a, amend the first sentence of the 

finding on page 49 by changing "County Court at Law general elections" to 

"County Court at Law primary elections." All three elections analyzed in 

Plaintiffs’ Exhibit Tr-02 are Democratic primary elections; none is a general 

election. 

6. In Finding of Fact No. 20.c, amend footnote 27 on page 50 

of the finding by inserting a comma between "Castro" and "Kennedy." This 

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amendment will help avoid confusion about whether the analyzed race 

involved two or three candidates. The footnote gives the mistaken 

impression that it was between two people, but the evidence, including 

Plaintiffs’ Exhibits Tr-02 and Tr-19, shows it to have been among three 

people, each of a different race. Castro is Hispanic, Kennedy (the victor and 

winner of 52% of the Anglo vote, see Defendants’ Exhibit D-8, at 44a) is 

Black, and Hughes is Anglo. 

7. In Finding of Fact No. 20.a-n, delete all references or 

reliance on the Kennedy/Castro/Hughes 1988 Democratic primary race for 

a county court at law nomination because it did not involve a one-on-one 

race between an Anglo candidate and an Hispanic candidate. Its use in the 

analysis and in arriving at factual findings and legal conclusions is 

inconsistent with the principle the Court appears to adopt in Finding of 

Fact No. 44, at pages 80-81, where it rejects the use of "white-on-white" 

election outcomes. With this requested deletion (and accepting for 

discussion purposes only the validity of the last two sentences on page 52 

of Finding of Fact No. 20.g), the Court must reanalyze the vote dilution 

question in Travis County using at least one more election contest. In the 

State Defendants’ view, such reanalysis will lead the Court to the 

conclusion (even accepting all its other fact findings and legal conclusions) 

that the plaintiffs failed to establish a Section 2 violation in Travis County. 

8. In Finding of Fact No. 21.j, amend the first sentence in the 

finding on page 58 by deleting the ending phrase "every time" and 

inserting "usually" before "lost." Plaintiffs’ Exhibit J-02 does not establish 

"clearly" that the preferred candidate of Black voters lost the most recent 

of the judicial elections analyzed -- that is, the 1986 Justice of the Peace 

Precinct 1, Place 2, Democratic primary race. Again accepting for purposes 

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of discussion only Dr. Engstrom's definition of the term, J-02 neither 

analyzes nor demonstrates which of the five candidates in the race was the 

preferred candidate of Black voters. 

9. In Finding of Fact No. 22.h, amend the first sentence of the 

finding on page 62 by deleting the word "Runoff" and add a new sentence 

at the end of the finding stating: "In the runoff of this primary race, the 

preferred candidate of the combined minority voters won." This finding, 

as currently analyzed by the Court, discusses the first 1986 Democratic 

primary, not the primary runoff, as a reference to the third page of 

Plaintiffs’ Exhibit L-02 reveals. That same page of the exhibit shows that 

Justice Gonzalez won countywide against his Anglo opponent in the runoff. 

10. In Conclusion of Law No. 17, amend it on page 90 by adding 

"as did Dr. Brischetto" to the end of the last sentence. This more accurately 

reflects the evidence, because it reflects that Dr. Brischetto also analyzed 

non-judicial elections. See, for example, his analyses in Tarrant County 

(Plaintiffs Exhibit Ta-02) and Jefferson County (Plaintiffs' Exhibit J-02). 

11. In the first full paragraph on page 92, the fourth line 

down, delete the word "unconstitutionally." The use of this word appears 

to have been inadvertant and is inconsistent with Conclusion of Law 23 on 

pages 91-92. Deleting it will eliminate confusion. 

Based upon the foregoing matters, the State Defendants urge the 

Court to grant this motion and alter its November 8th Memorandum in at 

least the limited fashion requested. 

Respectfully submitted, 

JIM MATTOX 

Attorney General of Texas 

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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 DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that on this 16th day of November, 1989, 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: and 
Robert H. Mow, Jr., Hughes & Luce, 2800 Momentum Place, 1717 Main 
Street, ‘Dallas, Texas 75201. 

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Renea Hicks dis ! 

    

 



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. 

ORDER 

On this day came before the Court the State Defendants’ Motion 

Pursuant to Rule 59(a) & (e). After giving due consideration to the matters 

raised in the motion, and responses thereto, the Court is of the opinion that 

it is well taken and it is hereby 

ORDERED that the motion is GRANTED in all respects. The Court will 

enter either an amended Memorandum Opinion and Order accordingly. 

  

United States District Judge