Jennings v. Joshua Independent School District Petition for Rehearing or Rehearing En Banc

    88-1089
3n the

Initeii Elates Court of Appeals
FO R  TH E F IF T H  C IR C U IT  

NO. 88-1089

WILLIAM JENNINGS, et al.,

versus
Plaintiffs/ Appellants

JOSHUA INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants/ Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS

PETITION FOR REHEARING OR REHEARING EN BANC 
BY APPELLANTS WILLIAM JENNINGS AND DON GLADDEN

Jerold S. Solovy 
Laura A. Raster 
Jenner & Block 
One IBM Plaza 
Chicago, Illinois 60611

Daniel H. Pollitt 
Law School
University of North Carolina 
Chapel Hill, N.C. 27514

OF COUNSEL

George Cochran 
Law Center 
University, MS 38677 
(601) 232-7361

Morton Stavis
Center For Constitutional Rights
666 Broadway
New York, N.Y. 10012

Georgene Vairo 
Law School 
Fordham University 
40 West 62nd Street 
New York, N.Y. 10036

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555



CERTIFICATE OF INTERESTED PERSONS
The undersigned, counsel of record for Appellants, certifies 

that the following listed persons have an interest in the outcome 
of the case. These representations are made in order that the 
judges of this Court may evaluate possible disqualifications or
recusal.
Williams Jennings 
Naomi Jennings 
Don Gladden
Joshua Independent School District
Charles Greenwalt
Larry Loftin
David Stevens
Francesca Raines
Royce Ingersoll
Institute of Criminal & Civil Investigation
Security Associates International
David Owen
Lawrence Ackels
Hollye Fisk
Mark M. Donheiser

Attorney for Appellants



STATEMENT OF COUNSEL
I believe that the panel decision is contrary to the 

following decisions of the United States Supreme Court and this 
Court and that consideration by the full court is necessary to 
secure and maintain uniformity of decisions in this Court.
Horton v. Goose Creek Ind. School Dist., 690 F.2d 470 (5th Cir. 
1982)
Adickes v. S.H. Kress S. Co., 398 U.S. 144 (1970)
Luqar v. Edmonson Oil Co.,~457 U.S. 922 
Malley v. Briggs, 475 U.S. 335 (1986)
Thomas v. Caplral Sec. Servs., Inc., 836 F.2d 866 (5th Cir.
1988)(en banc)
West v. Atkins, 108 S.Ct. 2250 (1988)

I further express the belief, based on a reasoned and 
studied professional judgment, that this appeal involves one or 
more questions of exceptional importance.

Georae Cochran 
Attorney for Appellants

ii



CONTENTS

Certificate of Interested Persons ....................... . i
Representation of Counsel ........ ..........................  ii
Table of Contents & Citations ............................... iii
Issue Warranting En Banc Consideration .....................  1
Course of Proceedings & Disposition ........................  2
Statement of facts Necessary for En Banc Determination ....  3
Argument .... ................................................  8
Conclusion ................ ................................... 15

CASES

Adlckes v. S.H.Kress & Co, 398 U.S. 144 (1970) ............. 11
Blum v. Yaretsky, 457 U.S. 991, 1011 (1982) ................  12
Brown v. Byer, No. 87-1323 (5th Cir. April 24, 1989).......  7
Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) .... 12
Doe v . Renfrow, 631 F.2d 91 (7th Cir. 1980), cert.
cTenled, 451 uTs. 1022 (1981) ................................ 11
Horton v. Goose Creek Ind. School Dist., 690 F.2d
470 (5th Cir. 1982) .....................  2,13
Jones v. Latexo ind. School Dist., 499 F. Supp. 223
(E.D. Texas 1980) ......... ........................... ...... n
Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) ............. 11
Malley v. Briggs, 475 U.S. 335 (1986 ) ......................  1,7,

13Monell v. Dept, of Social Serv., 436 U.S. 858 )(1978) .....  2,12
Thomas v. Capital Sec. Serv., Inc., 836 F.2d
866 (5th Cir. 1988) ......................................... 1,8,

9 '

TABLE OF CONTENTS & CITATIONS

iii



SECONDARY AUTHORITIES
Comment, Katz & Dogs: Canine Sniff Inspections & The
Fourth Amendment,.44 LA.L.REV. 1092 (19847 ........ . ........  13
Note, Dog Searches in Schoolrooms —  State Action or 
PrlvateActlon, 15 VALTl .REV. 137 (1980) ... ...............  14

West v. Atkins, 108 S.Ct. 2250 (1988) .................... . 12

iv



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 88-1089

WILLIAM JENNINGS, et al.,
Plaintiffs/Appellants

versus

JOSHUA INDEPENDENT SCHOOL DISTRICT, et al.,
Defendants/Appellees

ISSUES WARRANTING EN BANC CONSIDERATION

I. In light of this Court's en banc opinion in Thomas v. Capital 
Sec. Servs. Inc., is a full fee-shifting sanction of $84,113.01 
proper when granted: (a) without prior notice or warning to 
counsel of the conduct which may be the basis for sanctions; (b) 
without consideration of alternate "least severe" sanctions; and 
(c) on the basis of an allegedly "frivolous" complaint following 
the denial of three motions for summary judgment and a five-day 
trial?
II. Is a police officer and those acting in concert with him 
entitled to good-faith immunity under Malley v. Briggs, 475 U.S. 
335 (1986), when they participate in a set sequence of events 
designed to obtain a search warrant and they know or should have 
known that the sniffer-dog used in the underlying investigation

1



could not reliably detect the presence of current contraband as 
required by this Court's decision in Horton v. Goose Creek Ind. 
School_Dist^ 690 F .2d 470 (5th Cir. 1982), cert, denied, 463 
U.S. 1207 (1983)?
III. Is a school system liable under the policy requirement of

of Social Serv., 436 U.S. 658 (1978), when it is 
the "moving force" behind a sniffer-dog program resulting in 
searches which violate the Fourth Amendment?

COURSE OF PROCEEDINGS AND DISPOSITION
This section 1983 action was initiated on August 29, 1985 by 

Appellant Jennings on behalf of himself and his daughter. The 
original complaint named as defendants the school district, the 
school's vice principal, its superintendent, a city police 
officer, the city itself, and a private company with which the 
school had contracted to provide a sniffer-dog service. The 
complaint was amended when the company which trained the dogs was 
added as a third-party defendant. Following discovery, the 
complaint was again amended to drop the city as a defendant.

On November 7, 1986, the court denied summary judgment 
motions filed by the three school defendants and the dog 
handlers. Similar motions later filed by the dog-training 
company and the city police officer were denied. Following a 
five-day trial, directed verdicts were granted for all defendants 
except for the city policeman on the basis of issues which had 
been fully presented at the summary-judgment stage. Subsequently, 
the jury returned a verdict in the policeman's favor. The

2



district court then entertained motions for sanctions. This 
resulted in a joint and several judgment of $84,113.01 against 
the plaintiff and his attorney. This amount reflected full 
compensation for fees and costs incurred by all defendants with 
the exception of the police officer. A panel composed of Judges 
Jolly, Garwood and Wisdom affirmed the district court's decision 
in all respects. It is this decision that forms the basis for the 
instant petition for rehearing or rehearing en banc.

STATEMENT OF FACTS NECESSARY FOR EN BANC DETERMINATION 
A. THE DRUG PROGRAM AND ITS SNIFFER-DOG COMPONENT

In 1984, the Board of Trustees of the Joshua Independent 
School District (JISD) voted to use "sniffer dogs" as a means of 
detecting contraband at the school. Slip op. at 2889. It entered 
into a contract with Security Associates International (SAI), a 
private company engaged in the business of training dogs and 
providing, through another company, investigative personnel for 
the program.1

At the time, the board knew that the dogs were trained to 
react to at least sixty-two different substances, including 
aspirin and a number of safe, over-the-counter drugs. R.E. at 
290-4, 302. With this knowledge, the board nonetheless 
established a policy of full police involvement through the use 
of the private company supplying the dogs and school officials.

, ‘ The agent designated by SAI to carry out the contract
(with dogs trained by SAI) was the Institute for Criminal & Civil 
Investigations (ICCI), headed by Mr. Royce Ingersoll. All private defendants are referred to as "SAI."

3



As explained by the superintendent, Mr. Greenawalt, if a student 
or parent refused consent "[t]he next step in the policy was to 
contact the law enforcement official." Id. at 308.2

The owner of the company employing SAI's dogs stated that 
the dogs were to be used to establish probable cause for the 
issuance of search warrants. Id. at 566. The manual prepared by 
SAI for its employees was also written to reflect the directions 
given by the trustees. In the section describing appropriate 
responses to "possible confrontation situations," handlers 
(referred to as "technicians") were instructed to "contact the 
superintendent requesting that the police be involved" when 
students and/or parents refused entry to a vehicle. Id. at 37. 
The manual explained that this action was appropriate since 
"[t ]he canines may be used to establish probable cause for a 
search warrant and a subsequent forcible entry." Id. The manual 
proceeds with the proposition that it is SAI1s policy "[n]ever to 
let anyone off the hook." Id. at 40. It concludes with a 
"Recommended Pre-Search Warning" instructing technicians to 
advise students that, if consent is not given, "the matter will 
be turned over to the police department for appropriate action." 
Id, at 41.

B. THE MARCH 29, 1985 INCIDENT
(1) Events Prior to the Jenning's Search: -- On March 29, 

1985, SAI assigned a dog named King and its uniformed

2 See also id. at 291-2 (Greenawalt discussing trustees' policy)
4



handler/technician Francesca Raines to the JISD facility. They 
proceeded to the parking lot to determine which cars King would 
signal to be searched. Id. at 744. "Incident Maintenance 
Reports" filed for that day reflect the following results for the 
searches of eight cars based on student consent. From the first, 
a 25 caliber pistol (given to the student by her parents); the 
second, nothing save the smell of stale vomit; the third, sixteen 
12-gauge shells and beer caps; the fourth, nine empty beer 
bottles and four empty cans; the fifth, two 12-gauge shells and 
two empty beer cans; the sixth, asthma tablets; the seventh, five 
empty beer cans and an asthma inhaler; and, the eighth, a toy cap 
pistol and caps. Id. at 46-54. None of these searches resulted in 
any criminal charges or other disciplinary action.

(2) The Jenning1s Search: —  King then responded to a car 
owned by William Jennings and driven to school by his daughter, 
Naomi. On the basis of his experience as a law enforcement 
officer working for the postal service, Mr. Jennings had 
previously advised Naomi that under no circumstances was she to 
allow a search of the family car in response to a dog alert.
Slip op. at 2897. Naomi, therefore, refused to sign the consent 
form.

Approximately five hours elapsed from the time Naomi refused 
to sign the consent until the search of the car. She was taken to 
the principal's office and allowed to call her mother at home. 
After her father arrived, he refused to agree with Raines and 
principal Underwood's suggestions that "if Naomi [didn't] have

5



anything to hide she would let them search the car." Id. at 308. 
Superintendent Greenawalt then followed the trustee's policy and 
requested Officer Stevens to secure a search warrant. Id. at 
299-300; 346. Mr. Jennings was not given the option of removing 
the vehicle from the lot. Id. at 300. In fact, vice-principal 
Loftin was assigned, by Stevens and Underwood, to watch the car. 
Id. at 409-10; 432-33.

For the next four hours, the Jennings and vice-principal 
Loftin remained at the lot. Id. at 174. At approximately 3:30, 
Officer Stevens, accompanied by handler Raines and King returned 
with a search warrant. In full view of students leaving the 
school for home, id. at 668-69, Stevens immediately began a 
search. It took approximately twenty minutes and revealed 
nothing. Id. at 175.

(3) Officer Stevens and the Quest for a Search Warrant: —  
On March 29, Stevens had been on the force for approximately a 
year. This was the first time he had ever executed a search 
warrant and his first encounter with "sniffer dogs." Id. at 525.

Handler/technician Raines talked with her superiors, id. at 
735 and, before Stevens' departure to secure a warrant, 
demonstrated King's capabilities and reviewed with him that 
portion of the SAI manual relating to the company's position on 
searches. Slip op. 2891; R.E. at 512-15. Based on the manual's 
analysis of this Court's decision in Horton v. Goose Creek Ind. 
School Dlst., 690 F .2d 470 (5th Cir. 1982), and his discussions 
with Raines, Officer Stevens concluded "that the dog had been

6



held up in court," and that this Court "had decided that the dogs 
[were] reliable." R.E. at 512-515.

After a call to Dale Hanna, the county attorney, Stevens 
and Ms. Raines proceeded to the county courthouse to speak with 
him. The result: Hanna's secretary typed an affidavit charging 
Naomi and William Jennings with criminal possession of "dangerous 
drugs," "controlled substances (including marijuana)," 
"pyrotechnics," and "alcoholic beverages," for Stevens' 
signature. Id. at 44-5. It was on the basis of this affidavit 
that a warrant was issued for the search of the Jennings' car.

(4) Litigation: -- Appellant Gladden has been an active, 
cooperating attorney with the ACLU since the early 1960s.3 
Following an ACLU referral, he agreed to take the Jennings' case 
on a pro bono basis. He developed extensive arguments on the 
complicated issues of probable cause criteria vis-a-vis dog 
sniffs; the state action doctrine in the unique setting of public 
school authorities delegating police responsibilities to a 
private company; the scope of Horton; and the impact of the 
Supreme Court's ruling in Malley v. Briggs.

In addition, Gladden successfully opposed summary judgment 
motions filed by defendants which were denied on the basis "that 
the reliability of the dog [had not] been affirmatively 
established." Subsequently, however, the court effectively

In addition to two appearances before the United States 
Supreme Court, Mr. Gladden has appeared before this Court in 
sixteen different cases. The latest, Brown v. Byer. No 87-1323 
(5th Cir. April 24, 1989) affirmed an award of punitive damages against certain Texas constables.

7



reversed itself and granted directed verdict motions for all 
defendants except Stevens on the basis of arguments previously 
presented in support of summary judgment: furnishing information 
to police officers does not give rise to a cognizable 1983 claim 
and school authorities and private defendants lacked the 
necessary involvement to have been named as defendants. R.E. 23- 
4. Following the grant of motions for a directed verdict and a 
jury verdict in favor of Stevens, the district court concluded 
that the case had been "frivolous from inception" and awarded 
$84,113.01 in fees and expenses.

ARGUMENT
A. THOMAS V. CAPITAL SECURITIES

As will be explained, on the merits this case presents 
serious justiciable claims against all defendants; by no stretch 
of the imagination can the claims be viewed as "frivolous." 
Moreover, the district court's decision to impose sanctions 
occurred prior to this Court's landmark en banc decision in 
Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866 (5th Cir. 1988) 
which sets forth certain procedural and substantive criteria to 
be employed in Rule 11 cases.

Although the "abuse of discretion" standard is to be 
employed, "[i]f the sanctions imposed are substantial in amount 
. . the appellate review of such awards will be inherently more 
vigorous." 836 F.2d at 883. In Thomas, this Court noted and 
rejected the natural tendency of district courts to impose 
monetary sanctions in the form of fee awards. This Court held

8



that a sanctions award must be evaluated exclusively for its 
deterrent effect. "[T]he least severe sanction adequate to serve 
the purpose should be imposed." Id. at 878. Fees against counsel 
may be granted only if found to be the "least severe sanction" 
adequate to deter future conduct.

Under Thomas, there are three criteria for their use. First, 
the sanction must be closely tailored to the "conduct and 
resources" of those sanctioned and may be properly limited to a 
stern warning in some cases. Second, the Rule's reference to 
"reasonable" fees and expenses does not mean those actually 
incurred. Id. at 878, 881. Third, there is a duty to mitigate 
which, if not fulfilled by moving counsel, authorizes the 
district judge to reduce the award or "in some instances, decline 
to award any expenses," No longer may counsel "remain idle" after 
a "motion, pleading, or other paper" is perceived to have been 
filed in violation of the Rule. Id. at 879. Counsel and the 
court have an obligation to give "prompt notice of an alleged 
violation" and that sanctions will be assessed at the end of 
trial. The "early notice" requirement serves to warn lawyers of 
"substantial sanctions" if they persist in litigation 
"as well as prevent unsuspecting parties from suffering a large 
punitive award at the end of the proceedings." Id. at 881.

The panel opinion ignores the Thomas criteria. An $84,000 
sanction is affirmed in what the panel described as a "close 
case." No reference is made of the "vigorous review" component, 
the deterrent function or the "least severe sanction" to prevent

9



recurrence. Slip op. at 2896. Instead, the amount awarded is 
the aggregate of all time and expenses incurred by opposing 
counsel.

No mention is made of "prompt notice" requirements of a 
possible violation of the Rule or the duty to mitigate. Reference 
to the trial court's observation that a failure to "submit any 
evidence as to whether the dog had any ability to detect 
contraband," id. at 2895, as the reason for keeping school and 
private defendants in the case up to the directed verdict stage 
ignores the fact that the burden was on the defendants to produce 
this evidence. Moreover, if the court was correct in granting the 
directed verdict, it should have acted much earlier at the 
summary judgment stage when the same arguments were before it.
The failure of the panel to adhere to Thomas and the importance 
of the issue to all members of the bar warrant en banc review.

B. 'THE MERITS
(1) State Action/Causal Connection/"Moving Force" Issues: - 

- The panel opinion views the presence of Officer Stevens and 
"his own independent investigation," slip op. at 2894, as 
sufficient to eliminate the school authorities' and SAI's 
responsibility for the search. From the panel's perspective, what 
occurred at the JISD produced nothing more than a run-of-the mill 
case involving a section 1983 suit against a private person who 
furnishes information to the police. Id. at 2891. The panel 
failed to analyze such factors as: (a) the board of trustees' 
decision to use the police in all instances when consent was not

10



forthcoming after a sniff and signal by the dog; (b) the in 
terrorem effect of the "Recommended Pre-Search Warning" using the 
police department as leverage to secure consent; (c) the 
mandatory requirement that Superintendent Greenawalt carry out 
school policy by notifying the police; (d) the use of a school 
official, vice-principal Loftin,-to secure the Jennings' car 
during the time taken by Officer Stevens to procure a warrant;
(e) the unequivocal position of the company employing SAI’s dogs 
that they were to be used to establish probable cause and the 
school's knowing participation with the entire program; and (f) 
authorization by handler Raines' superiors to give Officer 
Stevens a demonstration, inform him of representations in SAI's 
manual and, most important, have her stay with him for the entire 
four-hour period needed to secure a warrant.

Previous decisions dealing with public schools and private 
canine companies which provide police functions on school 
property have never viewed causal connection/state action issues 
as significant.4 By definition, a program put in place by school 
authorities which contemplates, prior to any real or suspected 
violation of the law, the ultimate use of police authorities as a 
means of carrying out educational goals falls somewhere between 
the conspiracy requirements of Adickes v. S.H.Kress & Co, 398

4 See Doe v. Renfrow, 451 U.S. 1022 (1981)(Brennan, J., 
dissenting from denial of certiorari and noting that trainer of 
German shepherd was party defendant); Jones v. Latexo Ind. School 
Dlst., 499 F. Supp. 223, 230 (E.D.Tex. 1980) (joint activity —  
sufficient for purposes of joining handlers and school 
officials).

11



U.s. 144 (1970) and joint activity as defined in Lugar v,
Edmonson Oil Co., 457 U.S. 922 (1982). Because the school board's 
policy was the "moving force" behind what is argued to have been 
a constitutional deprivation, the case also raises issues of 
liability under Monell v. Department of Social Services, 436 U.S. 
658 (1978).

SAI and its dog handlers who performed a police function for 
the school and later established the necessary condition for a 
search warrant, the dog's reliability, clearly fall within the 
symbiotic relatipnship requirement of Burton v. Wilmington 
Parking Auth., 365 U.S. 715 (1961). By providing a service which 
is "the exclusive prerogative of the State," SAI also falls 
within the "public function" doctrine. Blum v. Yaretsky, 457 U.S. 
991, 1011 (1982). Indeed, like private physicians who contract 
their services to state institutions, West v. Atkins, 108 S.Ct. 
2250 (1988), private companies who enter into contracts with 
public school authorities must and should be called to task for 
constitutional injuries which occur within the scope of their 
employment.

It was part of handler Raines' job description to accompany 
Officer Stevens in his quest for the warrant. Without question, 
it was vitally important to the economic interests of her 
employer, SAI, that the warrant be procured. The four hours of 
paid time spent with Officer Stevens were perhaps the most 
profitable ever for any company employee. It produced an opinion 
establishing reliability of SAI dogs, where there is no evidence

12



of reliability. The scope of the state action/causal connections 
doctrines and the applicability of Monell warrant en banc review 
by the Court.

(2) Public Schools & Search Requirements: —  There is a 
dearth of case law on the subject of canine searches in the 
school environment.® The panel opinion in Horton v. Goose Creek 
Ind. School Dist., 690 F.2d 470 (5th Cir. 1982), arose out of an 
SAI contract in which dogs were given free reign to search 
students, lockers and automobiles. Id. at 474. Sniffing of 
lockers and cars was held not to be searches. Id. at 475-9. If a 
canine "alerts" in this context, however, a further search is 
authorized only if there is "reasonable suspicion that the search 
will produce something —  i.e., reasonable suspicion that 
contraband is currently present." Id. at 482 (Emphasis in 
original).

Malley v. Briggs, 475 U.S. 335 (1986), requires the use of 
an objective test to determine whether "a reasonably competent 
officer" would have concluded that a warrant should issue. In 
this case, therefore, the critical issue is whether there was 
sufficient evidence to warrant a "reasonable suspicion" of the 
current presence of contraband in the Jennings' car. The only 
evidence in this record on the issue of reliability, however, was 
presented by the plaintiffs in support of their contention that

8 There are few cases but an enormous number of law review 
commentaries on the subject. Comment, Katz & Dogs: Canine Sniff 
Inspections & The Fourth Amendment, 44 LA.L.REV. 1092, 1097 & 
n.32 (1984)(gathering commentaries).

13



the dog could not reliably discover current contraband. The trial
judge, in response to this showing, concluded that there was "no
material dispute as to . . . the dog's limited abilities . . .
R.E. 29.(Emphasis added.) That there is no dispute on this issue
is reflected by the following finding of fact by the lower court:

King would alert to narcotics including marijuana, 
alcohol, pyrotechnics, prescription drugs, over-the- 
counter drugs including Excedrin and antihistamines, 
firecrackers, ammunition, firearms, beer bottle caps, 
empty beer bottles, and caps from a toy pistol. King 
would also alert to "dead scents," meaning the dog 
would alert to a vehicle that no longer contained any 
of the above items, with the items having been removed 
as many as two to three weeks before.

[Id. at 21]
Thus, the vast majority of materials that triggered King's 
searches were not contraband at all. This finding is in accord 
with the skepticism expressed by this Court in Horton6 and 
secondary authority.7

The panel ignored the district court's findings and

6 The panel noted that SAI's dogs reacted to over sixty 
different substances, 690 F.2d at 474, and that SAI failed to 
keep any comprehensive records when "the dogs reacted positively 
in the absence of contraband." The record was described as 
failing to present any credible evidence on the reliability of 
the dogs. Id. See also 693 F.2d 524 (denial of rehearing in 
Horton pointing to "absence of a record.")

7 See, e .g ., Note, Dog Searches in Schoolrooms —  State
Action or Private Action" 15 VAL.L.REV. 137, 166 (1980)("dog 
searches alone have not ~been shown to establish probable cause to 
search . . . and must be prohibited [by] the courts.") Another 
interesting aspect of the case is the fact that SAI's 
"Recommended Pre-Search Warning" incorporates the proposition 
that its dogs are unreliable by requiring the handler to state: 
"The fact that the animal alerted on does not
necessarily mean that you are in possession of an illegal or 
controlled substance." R.E. 41.

14



determined that evidence produced by the plaintiffs to 
demonstrate that King was unreliable, justified a finding of 
"proven reliability." Slip op. at 2893. The panel made the 
unprecedented determination that an alert by a dog, without any 
other evidence of a crime, is sufficient to establish reasonable 
suspicion that contraband is currently present despite the fact 
that the district court found to the contrary. This 
unprecedented holding as well as the Malley and Horton issues in 
the case demand en banc review.

For the foregoing reasons, Appellants' motion for rehearing 
or, in the alternative, rehearing en banc, should be granted.

CONCLUSION

Respectfully submitted

George Cochran 
Law Center
University, MS 38677 
(601)232-7361Jerold S. Solovy 

Laura A. Raster 
Jenner & Block 
One IBM Plaza 
Chicago, Illinois 60611

Morton Stavis
Center For Constitutional Rights
666 Broadway
New York, N.Y. 10012Daniel H. Pollitt

Law School Georgene V
University of North Carolina Law School 
Chapel Hill, N.C. 27514 Fordham UnFordham University 

40 West 62nd Street 
New York, N.Y. 10036

Georgene Vairo

OF COUNSEL

15



CERTIFICATE OF SERVICE

I hereby certify that a copy of Appellants' Petetion for 
Rehearing or Rehearing En Banc was mailed to:
Lawrence E, Ackels, Jr.
Ackels, Ackels & Ackels 
4th Floor 
Landmark Center 
1801 North Lamar Street 
Dallas, Tx. 75202

Mark M. Donheiser 
Strasburger & Price 
4300 First RepublicBank Plaza 
Dallas, Tx. 75202

David Owen
Quillin, Owen & Thompson 
550 Bailey 
Suite 530
Ft. Worth, Tx. 76107
Hollye C. Fisk 
400 Stemmons Tower North 
2710 Stemmons Freeway 
Dallas, Tx. 75207

This, the 10th day c



S-tF