Motion to Certify State Law Questions or, Alternatively, to Disqualify Counsel

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IX Till AT TORIKES ox IR AL, 

On TEXAS 

February 20, 1990 

JIM RIATTOX 

ATTORNEY GENKIRAL 

VIA FEDERAL EXPRESS 
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 three copies of the Texas Attorney General's Motion to Certify State 
Law Question or, Alternatively, to Disqualify Counsel. 

Sincerely, : \ 
/ Ys 2 i : » "oti vl ae PA : 

Lg Val WE NN ~ N A 

enea Hicks 
Special Assistant Attorney General 

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

oC: Counsel of Record 

SU [A433 = 2100) SUINMRKEME COURT BULLIING AUSTIN, TEXAS 78711-2548 

 



  

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. on
 

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MOTION TO CERTIFY STATE LAW QUESTION OR, 
ALTERNATIVELY, TO DISQUALIFY COUNSEL 

Through an order dated February 14, 1990, one member of this Court 

granted the notice of independent counsel and the motion for leave to file a 

brief through independent counsel, both of which had been filed by eight 

official-capacity defendants-appellants in this case. (They hereinafter will be 

referred to collectively as "Chapman, et al.")" 

I. 

MOTION 
  

The Attorney General of Texas ("Attorney General"), on behalf of the 

State of Texas, moves the Court to certify the question of representation of 

Chapman, et al., to the Supreme Court of Texas or, alternatively, to disqualify 

the self-designated independent counsel for Chapman, et al. 

Insofar as the issues raised by this motion are concerned, Chapman, et 

al., who are parties only through their membership on the Texas Judicial 

Districts Board, are state officials who are before this Court in the same 

  

* 

The Attorney General had no opportunity to respond to the February 14th order which 
was entered by a single judge of the Court on the same day the motion and designation were 
lodged with the Court. To the extent the Court's rules might otherwise require it, the Atiorney 
General requests the Court to treat the instant motion as a motion for reconsideration of the 
February 14th order by a panel of the Court. Given the February 14th order, no detailed reply to 
some of the factual allegations in the motion by Chapman, et al., will be made, but some 
exemplary ones are contained in Part II, infra, of this motion. 

 



  

capacity as the Secretary of State of Texas. Already pending before the Court 

is a motion to certify the state law question of authority to represent state 

officials in federal court proceedings or.alternatively, to disqualify the seii- 

designated independent counsel for the Secretary of State. Rather than 

burdening the Court with repetitive filings, the Attorney General hereby 

incorporates by reference the texts of his pending motion concerning the 

Secretary of State of Texas and his Reply to Response to Motion to Certify in 

that same matter. 

II. 

FACTUAL MATTERS 
  

The following matters are offered in partial response to assertions 

made in the motion by Chapman, et al.: 

A. The publicly stated views of the Attorney General in the context 

of his candidacy for Governor of Texas are irrelevant to the consideration of 

the questions presented to the Court by this heretofore unprecedented 

usurpation of a state official's constitutional duties at the behest of nominal 

parties and self-designated independent counsel. If they somehow are 

relevant, then it seems tha: an evidentiary proceeding will be required to 

inquire into the publicly expressed views of other counsel in this case. For 

example, the "independent counsel" for the Texas Secretary of State gave as 

his publicly expressed reason for resigning in mid-term as Chief Justice of 

the Supreme Court of Texas the explanation that he wanted the freedom to 

devote time to opposing the current system of electing judges in Texas. If 

public policy views are to be treated as somehow relevant to the question of 

who has the authority to represent state officials in this proceeding, it is at 

least ironic that a private lawyer opposed to the current system of elec.ing 

judges in Texas is being permitted to usurp the authority of an elected 

_9- 

 



  

official such as the Attorney General to some extent because the Attorney 

General may be opposed (for perhaps different reasons) to the same system. 

B. It is misleading for Chapmam et al., to claim that they were kept 

in the dark about events concerning the case. First, two of them were not 

even official-capacity defendants in this case until after this Court entered 

its January 11th stay of the district court injunction, because they were not 

appointed to the position which made them parties until after that date. 

Judge Hester was appointed to the Judicial Districts Board on January 18, 

1990, and Judge Schraub was appointed to the Judicial Districts Board on 

January 26, 1990. 

Second, the Attorney General regularly apprised the Chief Justice of 

the Supreme Court of developments and strategies in the case. The Chief 

Justice is the Chair of the Judicial Districts Board. Chapman, et al., are 

parties here only because of their membership on the Board. Thus, it is 

wrong to state that the Board was not kept informed of developments in the 

case. 

C, The Court should not assess this motion or the others which 

concern representation issues while operating under the assumption that 

disposition of them is without financial implications for the State. If the 

plaintiffs prevail, liability for attorney fees must be assessed. The State has 

not consented to pay the plaintiffs’ attorney fees and other costs attributable 

to the actions of the so-called "independent counsel.” Thus, 

notwithstanding other legal consideration, if the Court permits independent 

counsel to participate in this case, and if the plaintiffs ultimately prevail, one 

of three consequences may flow: (a) the plaintiffs will be left uncompensated 

for work their attorneys have performed; or (b) the Court will compel the 

State to pay for that work which was occasioned only by defense counsel 

=5. 

 



operating in contravention of the directions of the state's defense lawyer; or 

(c) the independent counsel and/or their self-described clients must pay 

the fees out of their own pockets. None-of these alternatives appears to be a 

legallv viable one, and, thus, the Court should not create the circumstances 

which lead to them. 

CONCLUSION 
  

On its merits, this case raises issues concerning federal! court 

intrusion into the fundamental structure of state government. The question 

of the authority to represent the state in this Court raises a nearly identical 

fundamental issue. The merits concern Texas's trial judiciary. This and the 

other pending motion concern Texas's Attorney General. Both aspects of 

the case warrant the same attention from the Court. The representation 

issues are too important to be decided by the action of only one member of 

the Court. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First istant Attorney General 

{ J SENT 
“RENEX HICKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

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



  

-~ s% A 

CERTIFICATE OF SERVICE 

I certify that on this 20th day of February, 1990, I sent a copy of the 

foregoing document by first class United States mail, postage prepaid 10 

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: John L. Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas 

Commerce Tower, Houston, Texas 77002; Walter L. Irvin, 5787 South 

Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; R. 

James George, Jr., Graves, Dougherty, Hearon & Moody, P.O. Box 98. Austin, 

Texas 78767; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 

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Renea Hicks