Reply in Support of Motion to Realign and, If Necessary, to Modify Intervention of Defendant-Appellant Judge Entz

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April 12, 1993 

VIA FEDERAL EXPRESS 

Mr. Richard E. Windhorst, Jr., Clerk 
United States ourt of Appeals 

Louisiana 70130 

League of United Latin American Citizens, Council 
No. 4434, et al. v. Entz, et al.; No. 90-8014 

Dear Mr. Windhorst: 

Enclosed are an original and 20 copies of Reply Brief in 
Support of Judge Entz's Motion to Realign and, If Necessary, 
to Modify Intervention for filing in the above-referenced 
matter and for presentation to the en banc Court. 

Please return a file-stamped copy to me in the enclosed 
self-addressed prepaid postage envelope. By copy Of this 
letter, and in accordance with the Rules, copies of the 
enclosed document have been forwarded to counsel of record. 

Please contact me at the above number if you have any 
questions. Thank you for your assistance in this matter. 

ery re, oy. 

David C. AL Aol 

DCG/pai 
Enclosures 

cc: William L. Garrett (Via Certified Mail RRR) 
Relandc L. Rios (Via Certified Mail RRR) 

herrilyn A. Ifill (Via Certified Mail RRR) 
Gabrielle K. McDonald (Via Certified Mail RRR) 
Edward B. Cloutman, III (Via Certified Mail RRR) 
E. Brice Cunningham (Via Certified Mail RRR) 
Renea Hicks (Via Certified Mail RRR) 
J. Eugene Clements (Via Certified Mail RRR) 
Seagal V. Wheatley 
Thomas Rugg 

Walter L. Irvin 
James George  



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN § 

CITIZENS, COUNCIL NO. 4434, 

et al., 

Plaintiffs-Appellees, 
No. 90-8014 

Y. 

JUDGE F. HAROLD ENTZ, et al., 

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Defendants-Appellants. 

REPLY IN SUPPORT OF MOTION TO REALIGN 
AND, IF NECESSARY, TO MODIFY INTERVENTION 

OF DEFENDANT-APPELLANT JUDGE F. HAROLD ENTZ 
  

TO THE HONORABLE EN BANC COURT OF APPEALS: 

Defendant-Appellant Dallas County District Judge F. Harold 

Entz ("Judge Entz") replies to General Morales' response to 

Judge Entz's motion to realign the Attorney General of the 

State of Texas and, 1f necessary, to alter the scope of Judge 

Entz's intervention as follows: 

I. GENERAL MORALES SHOULD BE ALIGNED WITH APPELLEES 

General Morales makes several irrelevant arguments against 

being realigned with the plaintiffs in this appeal. He 

primarily claims that he should not be realigned because the 

legislature has not approved his purported "settlement," and 

thus no effective contract with the plaintiffs exists yet. 

Morales Brief at 2. But Judge Entz did not base his motion on 

the consummation of General Morales' deal with the plaintiffs, 

but rather on his acquiescence to plaintiffs’ demands. 

General Morales' conduct in the course of his negotiations 

reflects that he has chosen not to defend the existing 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 1  



  

system. This is consistent with that office's prior actions 

in agreeing to interim relief destroying Texas' judiciary and 

repudiating this Court's ruling in Texas' favor before the 

Supreme Court. Indeed, General Morales stated that he will no 

longer defend the Texas Constitution's method of electing 

judges. See Exhibit A to Judge Wood's Supplemental Letter 

Brief on Motion to Realign (April 2, 1993). Whether or not 

the Legislature approves General Morales' deal is irrelevant 

to this motion; the fact that he would seriously consider such 

a deal with the plaintiffs in the first place is what 

justifies realigning him with the plaintiffs. 

General Morales makes several other irrelevant arguments. 

He claims that the general policy favoring settlement 

precludes realignment. Morales Brief at 2. However, Judge 

Entz did not argue for realignment because of the fact that 

General Morales discussed settlement, but rather because of 

the terms on which he is prepared to "settle" -- unconditional 

surrender to the plaintiffs. General Morales also claims that 

he should not be realigned because other individuals 

throughout the state also favor change in Texas' method of 

judicial selection. Morales Brief at 2-3. Again, that is a 

non sequitur; unlike General Morales, those other individuals 

do not claim the exclusive right to defend the Texas 

Constitution. (As an aside, those others have advocated 

changing the method of judicial selection by amending the 

Texas Constitution.) General Morales notes that he had public 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 2 

 



  

hearings leading up to his purported settlement. Morales 

Brief at 3-4. Again, so what? Public hearings do not 

transform a collusive “settlement” into a proper 

constitutional amendment and they do not prevent Judges Entz 

and Wood from defending the state constitution free of the 

"assistance" of co-defendant General Morales. 

Finally, General Morales claims that Judge Entz cited no 

authority for realigning parties of common interest on the 

same side of an appeal. Morales Brief at 2. That is false. 

Judge Entz cited and relied upon the text and advisory 

committee notes to Rule 34(b) of the Federal Rules of 

Appellate Procedure, which divides oral argument by "sides," 

rather than by appellants and appellees, or plaintiffs and 

defendants. General Morales is not on Judge Entz's side. 

II. JUDGE ENTZ MAY DEFEND ALL COUNTIES UNDER ATTACK 

General Morales' zeal to claim the exclusive mantle of 

defending this lawsuit has led him to exaggerate this Court's 

holding in LULAC v. Clements, 923 F.2d 365,367 n.l1 (5th Cir.   

1991) (en banc). General Morales claims that footnote held 

that Judge Wood (and therefore Judge Entz) could intervene 

only in her personal capacity as a sitting judge. Morales 

Brief at 4. That 1s wrong. The case did say she could 

intervene in that capacity, but it did not reject or even 

address the other interests supporting Judge Entz's 

intervention, such as his interests as a lawyer and a voter in 

Dallas County. General Morales happily lets any person attack 

the Texas Constitution based on status as a voter, but 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 3 

 



  

jealously prowls his range looking for any 1interlopers who 

would dare to assert an interest in defending the system by 

which judges are elected in Texas. 

General Morales attempts a revisionist view of history, 

trying after-the-fact to limit Judge Entz's intervention to 

defending his own job. Morales Brief at 4-5. It is too late 

for that. Judge Entz moved to intervene as a defendant based 

on his status as a judge, a lawyer, and a voter; he was 

granted permission to intervene as a defendant; and he has 

prosecuted this appeal as a defendant-appellant from the 

district court to the Fifth Circuit to the Supreme Court and 

back. The validity of Judge Entz's intervention as a 

defendant is now law of the case; General Morales cannot limit 

that intervention to Judge Entz's personal bench by fiat 

simply because General Morales has decided it is inconvenient 

for other defendants in the case to actually defend the 

validity of Texas' system. General Morales plainly fears the 

prospect that if any party argues to the en banc Court that 

Texas" system does not violate section 2, the Court might 

agree. Judge Entz intervened to ensure that some party here 

would tell the Court just that, and it is too late for General 

Morales to muzzle Judge Entz. 

If Judge Entz's prior intervention is not sufficient for 

the Court to consider his arguments on behalf of all counties 

in suit, Judge Entz moved in the alternative to broaden the 

scope of his intervention. General Morales tries to 

distinguish precedent from this Court permitting another state 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 4 

 



  

official to defend Texas laws when the attorney general 

decides he wants to surrender. Baker v. Wade, 769 F.2d 289 
  

{5th Cir. 1985) (en banc). He attempts to distinguish Baker 

v. Wade as a class action, Morales Brief at 5 n.5, but the 

class action aspect of Baker did not affect the intervention 

analysis of whether the intervention was timely and whether 

the attorney general adequately represented the interests of a 

person who wanted to defend Texas' laws. He also claims that 

a district attorney is charged with enforcing Texas' laws and 

a judge is not. Morales Brief at 5. Again, Judge Entz, like 

General Morales, swore an oath to protect and defend the 

constitution and the laws of the State of Texas; in any event, 

this 1s nothing more than a renewed attack on Judge Entz's 

standing, which, as discussed above, is law of the case. 

Finally, General Morales notes that the intervenor in Baker v.   

Wade was subject to an injunction. Morales Brief at 5 n.5. 

But as the Court will recall, Judge Entz would be subject 

today to an injunctive interim remedy in this case, 

substantially in the form to which the attorney general 

agreed, had not Judges Entz and Wood sought an emergency stay 

in connection with this appeal. 

General Morales must concede that Baker v. Wade holds that 
  

when the attorney general does not prosecute an appeal to 

defend a state statute, the interest of another state officer 

in defending that statute is no longer adequately represented 

and intervention at that point is timely. Thus, if any 

modification of Judge Entz's status in this case is needed, 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 5 

 



  

Baker v. Wade provides ample authority for this Court to   

permit Judge Entz to bring this case on the merits before this 

Court, rather than letting General Morales unilaterally remove 

the issue from the Court's docket. 

III. JUDGE ENTZ WILL NOT ADDRESS THE "SETTLEMENT" 

Judge Entz made two motions that are ripe for this Court's 

consideration given General Morales’ abandonment of the 

defense; General Morales incorrectly tries to avoid the issues 

presented in those motions, claiming they are premature 

because the Texas Legislature has not endorsed his deal with 

the plaintiffs. Ironically, he then proceeds to distract the 

Court with arguments about the validity and effect of his 

pending deal, which is most evidently not yet before the 

Court. Morales Brief at 6-9. 

Judge Entz avoided addressing the validity and effect of 

the proposed "settlement" in his motion since it is not before 

the Court. Although any litigant has a natural desire to 

respond to arguments against his position, Judge Entz will 

resist that temptation again and will not address General 

Morales' (specious) arguments about the validity and effect of 

his deal. So that Judge Entz's silence will not be taken as 

assent, he merely notes now that the purported "settlement" is 

ultra vires, is invalid under federal and state law, and would 

not in any event prevent Judge Entz and this Court from 

addressing the merits of this appeal in late May. 

WHEREFORE, Judge Entz respectfully requests the Court to 

align General Morales with plaintiff-appellees for the 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 6 

 



remainder of this appeal, consider Judge Entz's argument on 

behalf of all counties under attack in this action, and grant 

Judge Entz and Judge Wood all oral argument time for 

appellants. 

Respectfully submitted, 

DY (Vol 
Robert (H. Mow, 

David C. ily 

Bobby M. Rubarts 

  

of HUGHES & LUCE, L.L.P. 

1717 Main Street, Suite 2800 

Dallas, Texas 75201 

(214) 939-5500 

(214) 939-6100 (FAX) 

ATTORNEYS FOR DEFENDANT- 
APPELLANT JUDGE ENTZ 

CERTIFICATE OF SERVICE 
  

I certify that I served copies of the foregoing motion, by 

certified mail, return receipt requested, upon the following 

counsel of record in accordance with the Federal Rules of 

Appellate Procedure this 12th day of April, 1993: 

William L. Garrett 
Garrett, Thompson & Chang 

8300 Douglas, Suite 800 

Dallas, Texas 75225 

Rolando Rios 
Attorney at Law 

115 E. Travis, Suite 1024 
San Antonio, Texas 78205 

Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 7  



Gabrielle K. McDonald 
Walker & Satterthwaite 

7800 N. Mopac, Suite 215 
Austin, Texas 78759 

  

Edward B. Cloutman, III 

Cloutman, Albright & Bower 
3301 Elm Street 

Dallas, Texas 75226-1637 

Renea Hicks 
Office of the Attorney General 
P.O. Box 12548 
Capitol Station 
Austin, Texas 78711-2548 

J. Eugene Clements 

Porter & Clements 

700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Seagal V. Wheatley 

Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 

711 Navarro, Sixth Floor 
San Antonio, Texas 78205 

E. Brice Cunningham 
777 South R.L. Thorton Freeway 

Dallas, Texas 75203 Th 
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JUDGE ENTZ'S REPLY IN SUPPORT OF MOTION TO REALIGN -- PAGE 8