Response to Motion to Extend Time and Disposal of Pending Representation Motions

    ATTORNEY GENERAL 
OF TEXAS 

JIM MATTOX 

ATTORNEY GENERAL 

June 4, 1990 

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 
twenty copies of the Attorney General's Response to Judge Wood's 
Unopposed Motion to Extend Time for Oral Argument and Motion for the 
Court to Dispose of Pending Representation Motions Prior to En Banc 
Argument. 

Sincerely, 

Renea Hicks 
Special Assistant Attorney General 

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

cc: Counsel of Record 

S12/AGB3B3=22100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2318  



  

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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RESPONSE TO UNOPPOSED MOTION TO EXTEND TIME FOR ORAL 
ARGUMENT AND MOTION FOR THE COURT TO DISPOSE OF PENDING 

REPRESENTATION MOTIONS PRIOR TO EN BANC ARGUMENT 

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

responds as follows to the Unopposed Motion by Judge Wood of Harris 

County: 

RESPONSE 
  

1. While the State of Texas through the Attorney General does not 

oppose the allocation of forty-five minutes per side for oral argument of this 

case, it is important to stress what Judge Wood notes in the paragraph 5 of 

her motion: that such additional time will not lessen the disagreement 

between the Attorney General of Texas and private counsel unilaterally 

designated by the Secretary of State about who constitutionally may be the 

legal spokesperson for the State of Texas and its agencies and officials. 

2. The same dispute is presented by the appearance of private 

counsel for other state officials, and motions regarding them are pending; 

however, at this point, private counsel for the Secretary of State is the only 

one seeking to have time allotted for oral argument on June 19, 1990. The 

Attorney General opposes the allocation of any time to the private counsel 

for the Secretary of State. 

 



  

MOTION 
  

3. The Attorney General re-urges the Court to dispose of the 

representation question before oral argument on June 19, 1990, by 

disposing of the six pending motions which present the issue to the Court. 

The motions seek to disqualify the private attorneys of three sets of state 

officials appearing in this case in their official capacities: (a) the Secretary 

of State of Texas; (b) eight members of the Texas Judicial Districts Board; 

and (c) six putative intervenor Bexar County district judges.” In an order of 

April 12, 1990, the panel in this case carried these motions with the case. 

4. Failure to act on these motions effectively makes en banc law in 

this Circuit which permits state officials appearing in their official capacities 

to unilaterally retain private counsel to appear for them in federal court and 

litigate on behalf of the state. Failure to act abrogates the state's 

constitutional allocation of power to the elected Attorney General of Texas to 

be the legal officer for the state. If left unattended, these circumstances can 

only make this Court's job more difficult -- if not impossible -- in the many 

future cases in which the Court must look to the states' legal officers to 

articulate the state policy implicated by a legal issue before the Court. 

5. The representation issue presented by the motions is not only of 

fundamental importance; it is capable of easy resolution. The law is clear. 

See, e.g., New York v. Uplinger, 467 U.S. 246, 247-48 n.1 (1984) (authority 

to represent a state is a state concern); United States v. Texas, 680 F.2d 

356, 368 n.16 (5th Cir. 1982) (Attorney General of Texas has the exclusive 

right to represent state agencies). 

  

*® 

These judges also seek to reverse the district court's denial of their intervention in their 
personal capacities. Neither this motion nor the six pending motions challenge the 
representation of these judges in their personal capacities. 

“93. 

 



  

6. Disposition now will aid the appellants’ attorneys in the division 

of time for en banc oral argument. The Attorney General urges the Court to 

grant the motions for disqualification or, in the alternative only, to certify 

the state law question to the Supreme Court of Texas. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Cg tod 
RENEA HICKS 
Special Assistant Attorney 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 4th 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 (except those marked with * to whom it was sent by 
overnight courier, or those marked with **, to whom it was hand-delivered): 
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° ; Walter L. Irvin, 5787 South 

La. 

 



  

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 
78205, 

i, QL uSe Lord 
  

Renea Hicks