Secretary of State Bayoud's Petition for Permission to Appeal Under 28 U.S.C. 1292(b) and Rule 5 of FRAP

    3 

IN THE UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

¥. NO. 90-8014 

JIM MATTOX, et al., 

wn
 

wn
 

Wn
 

Wn
 

Wn
 

Wn
 

Wn
 

wn
 

wn
 

Wn
 

Defendants-Appellants. 

SECRETARY OF STATE GEORGE BAYOUD'’S 

PETITION FOR PERMISSION TO APPEAL 

UNDER 28 U.S.C. §1292(b) 
AND RULE 5 OF FRAP 

  

NOW COMES Secretary of State George S. Bayoud, Jr., ("Bayoud), 

Defendant-Appellant in the above-referenced cause, and files this, 

his Petition for Permission to Appeal Under 28 U.S.C. §1292(b) and 

Rule 5 of the Federal Rules of Appellate Procedure, and in support 

thereof, would show as follows: 

I. PRELIMINARY STATEMENT 

on or about December 14, 1989, Attorney General Jim Mattox 

("Mattox") filed a Motion to Certify Liability Determination for 

Appeal Pursuant to 28 U.S.C. and 1292(b) on behalf of Defendant- 

Appellant Bayoud and the other State Defendants. (See Exhibit 

nan), This Motion was directed at modification of the Honorable 

Lucious D. Bunton’s Memorandum and Order of November 8, 1989, as 

modified for clerical corrections on November 27, 1989 and December 

 



  

26, 1989, from the United States District Court for the Western 

District of Texas in Cause No. MO-88-CA-154 (W.D. Tex.). The 

District Court granted this Motion and certified this case for 

Interlocutory Appeal by Order dated January 2, 1990. (See p. 8 of 

Exhibit "B"). 

As required by 28 U.S.C. §1292(b) and Rule 8 of the Federal 

Rules of Appellate Procedure, Defendant-Appellant Bayoud files this 

Petition for Permission to Appeal the District court’s Order within 

ten (10) days of that Court’s entry of the January 2, 1990 Order. 

This filing is made without prejudice to Defendant-Appellant 

Bayoud’s position that his appeal is automatic and as of right 

under 28 U.S.C. §1291(a)(1), since the District Court’s January 2, 

1990 Order granted injunctive relief: 

calling, holding, supervising and certifying election for 

State District Court Judges in Harris, Dallas, Tarrant, 

Bexar, Travis, Jefferson, Lubbock, Ector and Midland 

Counties under the current at-large scheme. 

(See p.5. Of Exhibit PB"), Accordingly, Defendant-Appellant 

Bayoud’s filing of this Petition For Permission to Appeal is made 

out of an abundance of caution and to avoid any specious claims of 

failure to preserve this appeal. 

11. TACTS 

To facilitate the expeditious filing of this Petition, 

Defendant-Appellant Bayoud adopts and incorporates by reference 

Pages 2-10 of the factual statement in Judge Wood's Petition for 

a 

 



  

3 

Expedited Permission to Appeal, which was filed on or about Jan- 

uary 5, 1990, with this Honorable Court. Copies of these pages 

are attached as Exhibit "C". 

III. STATEMENT OF CONTROLLING ISSUES OF LAW 
  

Defendant-Appellant Bayoud hereby adopts and incorporates 

Pages 10-15 of Judge Wood’s Petition For Expedited Permission to 

Appeal. Copies of those pages are attached as Exhibit "D". 

IV. A SUBSTANTIAL BASIS EXISTS FOR DIFFERENCES 

OF OPINION ON THE QUESTIONS OF LAW INVOLVED 
  

Defendant-Appellant Bayoud hereby adopts and incorporates 

Pages 15-38 of Judge Wood’s Petition for Expedited Permission To 

Appeal. Copies of those pages are attached as Exhibit "E". 

Judge Bunton’s November 8, 1989 Findings of Fact and Con- 

clusions of Law make clear that Plaintiffs failed to carry their 

burden of proof that the present at-large system for electing State 

District Court Judges violates the Fourteenth or Fifteenth Amend- 

ments to the United States Constitution. (See p. 91 of Exhibit 

"Fr), There is no doubt that the sole basis for the entry of the 

Court’s Order was a substantive legal ruling that Section 2 of the 

Voting Rights Act applies to the judiciary. (See p. 81 of Exhibit 

npny., 

It must be emphasized that this Honorable Court has recognized 

that the United States "Supreme Court has yet to speak on the 

critical issue whether Section 2 of the Voting Rights Act applies 

-_3=—- 

 



  

to judicial elections." Chisom v. Roemer, 853 F.2d 1186, 1188 (5th 

Cir. 1988). And although Defendant-Appellant Bayoud recognizes 

  
that this Court so held in Chisom v. Roemer, 839 F.2d 1056, 1058 

(5th cir. 1988), cert. denied sub nom., Chisom v. Edwards, 109 
  

  

S.Ct. 390 (1988), the denial of a petition for writ of certiorari 

  does not have any precedential value. Hughes Tool Co. v. Trans-— 

world Air Lines, Inc., 409 U.S. 363, 366 n. 1 (1973). The basic, 

core premise underlying Judge Bunton’s Order must be authorita- 

tively decided by this Court and the United States Supreme Court. 

Thus, Defendant-Appellant Bayoud respectfully urges this Court to 

grant permission to appeal on the basic legal question of whether 

the Voting Rights Act applies to the current at-large election 

system of State District Judges in Texas, and if so applicable, 

whether its application in this case is constitutional. 

Further, under the present record in this case, the District 

Court failed to apply correctly the "totality of the circumstances" 

test as set forth by the United States Supreme Court in Thornberg 

Vv. Gingles, 478 U.S. 30 (1986); Overton v. City of Austin, 871 F.2d 
  

529 (5th Cir. 1989), and improperly held that the Plaintiffs 

carried their burden of proof on the question of voter dilution 

under that test. 

 



V. AN IMMEDIATE APPEAL MAY MATERIALLY 
ADVANCE THE TERMINATION OF THIS LITIGATION   

  

Defendant-Appellant Bayoud adopts and incorporates by refer- 

ence pages 38-42 of Judge Wood’s Petition For Permission For 

Expedited Appeal. Copies of these pages are attached as Exhibit 

ngn . 

Respectfully submitted, 

LIDDELL, SAPP, ZIVLEY, HILL 
& LABOON 

Lh 2 Lian, 
HE 

Jghn ‘L. Hill, ,6 Jr. 
tate Bar No. 00000027 

Andy Taylor 
State Bar No. 19727600 

3300 Texas Commerce Tower 

Houston, Texas 77002 

{713) 226-1200 

  

ATTORNEYS FOR GEORGE S. BAYOQUD, 
JR., SECRETARY OF STATE OF TEXAS 

 



CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing 

instrument has been served upon all counsel of record, by overnight 

federal express, on this [{ day of January, 1990. 

a L.-Hill, Jr. WH 
  

WAT\LULAC.11