Reply to Response to Motion to Certify

    THRE ATTORNEY GENERAL 
OF TEXAS 

JIM MATTOX January 26, 1990 

ATTORNEY GENERAL 

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 matter are the 
original and three copies of a Reply to Response to Motion to Certify. 

Renea Hicks 
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 78711-2548  



  

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. an

 
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REPLY TO RESPONSE TO MOTION TO CERTIFY 

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

replies as follows to private counsel's® response ("Response") to his 

Motion to Certify State Law Question or, Alternatively, to Disqualify 

Counsel: 

Dispositive decisions on the issue 

The Response argues that the Court decided the state law 

question adversely to the Attorney General's position on January 11, 

1990. The unadorned nature of the denial of the motion makes it 

impossible for anyone other than the Court to know with certainty 

whether the Response's characterization is accurate. Legal principles 

governing the Court indirectly indicate, however, that the Response's 

characterization must be wrong. 

One panel of this Court may not overrule the prior decision of 

another panel. Keith v. St. George Packing Co., 806 F.2d 525, 526 

  

* 
They now have changed their self-designation (below the signature line of their 

pleadings) from "independent counsel” to "attorneys" for the Secretary of State. Of 
course, the Attorney General of Texas, as indicated in all the pleadings filed in the 
district court and this Court, as well as the Form for Appearance of Counsel, is the 
attorney for the Secretary of State in this case. There cannot be two lead counsels as the 
private attorneys are trying to have it. 

 



(5th Cir. 1986). Clear legal precedent, succinctly and precisely 

articulated in United States v. Texas, 680 F.2d 356, 368 n.16 (5th Cir. 

1982), establishes the validity of the Attorney General's position on 

the legal point at issue. See also McGee v. Estelle, 722 F.2d 1206, 

1212 n.18 (5th Cir. 1984) (en banc) (the Texas Constitution vests the 

state's attorneys with the exclusive authority to enforce the state's 

rights). Thus, the only conceivable basis for the denial of the Motion 

to Strike is a procedural one, albeit an unarticulated one. The motion 

now pending before the Court should be sufficient to overcome 

whatever procedural hurdle was not cleared by the motion to strike. 

The Response contains only an empty statement that U.S. v. 

Texas is not authority for the proposition under review by the Court. 

This is not legal argument; it is an ipse dixit. Someone at some point 

must forthrightly confront the legal issue. The Response and the 

earlier filings by private counsel do not even try. The emptiness of 

their legal argument can be gleaned from the emptiness of their 

filings. 

The Response mistakenly claims that the Attorney General has 

engaged in efforts to "thwart filings" by the Secretary of State. The 

record plainly refutes this unsubstantiated claim. On behalf of the 

state of Texas, the Attorney General himself filed notices of appeal and 

an emergency stay motion, with the Secretary of State listed as one of 

the many state officials on whose behalf the filings were made. The 

only thing relevant to the matter before the Court that the Attorney 

General has tried to thwart is the invasion of his state constitutional 

authority.  



Certification 

The Response argues that the question of state law which the 

Attorney General seeks to have certified is not necessarily 

determinative of the outcome of this case. Under Rule 114(a) of the 

Texas Rules of Appellate Procedure, it need only be possibly 

determinative. Cf. Clay v. Sun Insurance Co., 363 U.S. 207 (1960) 

(seminal certification case in which certified state law question is not 

determinative of federal case). 

Of course, the question to be certified is possibly determinative. 

What other reason is private counsel waging the battle? If private 

counsel's effort to appear here on behalf of a state official is not 

important enough to rise to the level of being potentially 

determinative insofar as the outcome of the case is concerned, then 

there is no important reason for such an appearance to occur in the 

first place. If there is no important reason for the appearance, then 

there is no basis for overriding the dictates of the state constitution by 

permitting unilateral usurpation of the Attorney General's clear 

authority. 

Permitting the usurpation to continue under such circumstances 

severely endangers this Court's ability in the future to do something it 

frequently must do -- that is, discern from state counsel's 

presentations to the Court the articulated policy bases for challenged 

state actions or laws. The fragmentation of state representation and 

state authority embedded in the principle which interloping private 

counsel! would have this Court adopt can only engender unwarranted 

confusion in the future, for both the state itself and the federal courts 

hearing cases involving it.  



  

CONCLUSION 
  

This issue is not a minor matter. It is far more than a petty 

dispute arising out of irrelevant state political squabbles or public 

policy disputes. It goes to the heart of the Attorney General's duties, 

the Texas Constitution's allocation of authority, and the obligation of 

federal courts to accept their governance. It deserves the lengthy 

arguments the Attorney General has made; it deserves to be decided; 

and it deserves a clear statement of the rule. Most importantly, 

unpalatable as it might be to some, stare decisis requires what the 

Attorney General seeks. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

ES bse hreds 
“~RENEA HICKS 

Special Assistant bl General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

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

 



  

CERTIFICATE OF SERVICE 

I certify that on this 26th day of January, 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 & LaBoon, 3300 Texas Commerce Tower, Houston, Texas 
77002; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 

  

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