Motion for Oral Argument on Pending Motions Concerning Representation

    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 FOR ORAL ARGUMENT ON PENDING 
MOTIONS CONCERNING REPRESENTATION 

The Attorney General of Texas, on behalf of the State of Texas 

("Texas"), hereby moves the Court to permit oral argument on the pending 

motions requesting the Court to disqualify private counsel for state officials 

or, alternatively, to certify the representation question to the Supreme Court 

of Texas. These motions have been pending for several months and have 

been carried with the case, although it is not clear whether they are under 

the consideration of a panel of the Court or of the Court en banc. 

Local Rule 27.3 implicitly authorizes the Court to set oral argument on 

motions. The federalism questions raised in the pending representation 

motions are of sufficient importance that they warrant separate argument. 

Indeed, the federalism questions present concerns about state autonomy 

and federal authority to intrude into it similar to the ones just argued before 

the Court en banc, except here there is not even a colorable federal basis 

(statutory or otherwise) for ignoring state law. Ironically, the intrusion here 

is occurring at the nearly-casual behest of those stoutly resisting it in 

another part of the case. 

For approximately half a year, the Court has permitted private counsel 

to appear for a state official sued only in his official capacity over the 

 



repeated objections of the Attorney General of Texas who is the only official 

authorized by state law (which governs here on this question) to appear 

before this Court on behalf of state officials sued in their official capacity. 

Thus, there has been a daily derogation of the state constitutional authority 

vested in the elected legal representative of the people of Texas with 

absolutely no explanation of its legal basis. In effect, a rule of law has been 

established which overrules a prior panel decision without citation to any 

authority. This new legal principle permits unilateral usurpation of state 

allocations of fundamental state power through the unilateral actions of 

private attorneys acting at the behest of state officials who simply ignore 

their state constitution. One of the most troubling aspects of these actions 

is that written entreaties that this crucial matter be confronted by the Court 

have proven unavailing. 

That the Court probably would not view the rule of law that has been 

effectively established to be a rule of law that it would conclude is warranted 

suggests that the matter deserves full consideration. Such full consideration 

can come only with the presentation of oral argument. Simply ignoring the 

question makes law, but, especially on a matter of such importance to 

concerns of federalism and comity, such an approach seems antithetical to 

the function of federal courts. If the Court intends to rule that the Texas 

Constitution may be disregarded here (a legally baseless proposition), then 

Texas urges the Court to do so in a written opinion after oral argument on 

the question. At this point, all Texas knows is that its constitution is being 

ignored. It does not know why.  



Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Crd is. 2A 
RENEA HICKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney Gerieral 

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

CERTIFICATE OF SERVICE 

I certify that on this 19th day of June, 1990, 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; John L. Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBocn, 3300 Texas 
Commerce Tower, Houston, Texas 77002; Walter L. Irvin, 5787 South 
Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; James 
George, Jr., Graves, Dougherty, Hearon & Moody, NCNB Tower, Suite 3500, 
515 Congress Ave., 6th & Congress, Austin, Texas 78711; Paul Strohl, 100 
Founders Square, 900 Jackson Street, Dallas, Texas 75202; Susan 
Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. Mary's, Suite 600, San 
Antonio, Texas 78205; and Seagal V. Wheatley, Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 

CV diohs, 
Renea Hicks 
  

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