Judge Entz's Motion for Leave; Entz's Reply on Joint Motion to Remand

    » 

HUGHES & LUCE, L.L.P. 
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INCLUDING PROFESSIONAL CORPORATIONS 

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June 3, 1993 

VIA FEDERAL EXPRESS 
AIRBILL NO. 6197435506 

      

  

   

Mr. Richard 

United Sta 

< Windhorst, Jr., Clerk 
s Court of Appeals 

leans, Louisiana 70130 

Re: 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 Judge Entz's 
Motion for Leave and Judge Entz's Reply on Joint Motion to 
Remand 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 conta¢t me at the above number if you have any 
questions. Thank you for your assistance in this matter. 

IY truly yours, 

’ 

David C.' Godbey 
DCG/pai 
Enclosures 
cc: William L. Garrett (Via Certified Mail RRR) 

seflando 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) 
Joseph Jamail (Via Certified Mail RRR) 
James P. Turner (Via Certified Mail RRR) 
Seagal V. Wheatley 
Thomas Rugg 

Walter L. Irvin 
James George 

 



  

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Ve. 

DALLAS COUNTY DISTRICT JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

JUDGE ENTZ'S MOTION FOR LEAVE 

Appellant Dallas County District Judge F. Harold Entz 

("Judge Entz") requests leave to file the accompanying Reply 

to the Houston Lawyers' Association's ("HLA") Response to 

Judge Entz's Opposition to Joint Motion to Remand, for the 

following reasons: 

1. Appellees and the Attorney General filed their Joint 

Motion to Remand essentially without any supporting argument 

or authorities. When Judge Entz responded to that motion, he 

noted his concern that he was being sandbagged by this 

tactic. Now, HLA has come forward in reply to Judge Entz's 

opposition and finally asserted arguments why Judge Entz's 

opposition purportedly cannot prevent a remand. 

2. Although the Court initially ordered HLA to file its 

reply by the day of oral argument, HLA requested and obtained 

leave to file its reply after oral argument. Thus, if this 

motion is not granted, Judge Entz will have been deprived of 

JUDGE ENTZ'S MOTION FOR LEAVE TO FILE -- PAGE 1 

 



  

any chance to address HLA's arguments either orally or in 

writing. 

3. HLA in its reply for the first time overtly urges 

the argument that Judge Entz suspected was eventually coming: 

Judge Entz supposedly does not have standing to object to the 

remand because the purported settlement, if approved, will 

leave his bench, isolated with four other courts in Dallas 

County, running at-large. That argument is patently flawed; 

if accepted at face value, however, it would have a 

significant impact on the outcome of the appeal. Judge Entz 

urgently requests that he be given a brief opportunity to 

respond to this tardy objection to his intervention. 

THEREFORE, for the reasons stated, Judge Entz requests 

that the en banc Court grant him leave to file the 
  

accompanying Reply on Joint Motion to Remand. 

Respectfully submitted, 

Du (holly, 
Robert H. Mow, 

David C. nh 

Bobby M. Rubarts 

  

OF HUGHES & LUCE, L.L.P. 
1717 Main Street 
Suite 2800 
Dallas, Texas 75201 

(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 

DISTRICT JUDGE F. HAROLD ENTZ 

ERTIFICATE OF SERVICE 

1 certify that 1 served copies of the foregoing 

instrument by certified mail, return receipt requested, on 

JUDGE ENTZ'S MOTION FOR LEAVE TO FILE -- PAGE 2 

 



  

William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, 

Suite 800, Dallas, Texas 75225; Rolando Rios, Milam Building, 

115 E. Travis Street, 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; 

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; E. Brice Cunningham, 777 

South R.L. Thornton Freeway, Dallas, Texas 75203; James P. 

Turner, Department of Justice, P. O. Box 66078, Washington, 

D.C. 20035-6078; Joseph Jamail, Jamail & Kolius, 1 Allen 

Center, 500 Dallas Street, Suite 3434, Houston, Texas 

77002-4793 in accordance with the Federal Rules of Appellate 

Procedure this 3rd day of June, 1993. 

il. Cy 
  

JUDGE ENTZ'S MOTION FOR LEAVE TO FILE -- PAGE 3 

 



  

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Vi 

DALLAS COUNTY DISTRICT JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

E ENTZ'S REPLY ON JOINT MOTION REMAND 

Appellant Dallas County District Judge F. Harold Entz 

("Judge Entz") offers this Reply to the Houston Lawyers’ 

Association's ("HLA") Response to Judge Entz's Opposition to 

Joint Motion to Remand, for the following reasons: 

I. JUDGE ENTZ'S INTEREST   

Appellee HLA primarily claims that Judge Entz and Judge 

Wood were cotnitied "to intervene only in their individual 

capacities as sitting state court judges." HLA Response §Y 1 

(emphasis in original). Factually, that is false. Judge Entz 

moved to intervene as a defendant based on his interest as a 

judge, a lawyer, and a registered voter in and citizen of 

Texas, see Judge Entz's Motion to Intervene at 2 (W.D. Tex. 

February 27, 1989), and that motion was granted. See Order 

(W.D. Tex. March 6, 1989). He participated in trial as a 

full-fledged defendant, putting forward crucial evidence for 

Dallas County and legal arguments not raised by the Attorney 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 1 

 



  

Nl » 

General, and he has participated in this appeal in that 

capacity all the way to the Supreme Court and back. In 

addressing Judge Wood's ability to intervene, this Court en 

banc noted that she could intervene in her individual capacity 

as a sitting judge, but it certainly did not preclude Judge 

Wood's or Judge Entz's intervention in any of the other roles 

he identified. See LULAC v, Clements, 923 F.2d 365, 367 n.l 

(5th Cir. 1991) (en banc). Thus, the Attorney General and 

HLA's efforts now to limit Judge Entz's intervention only to 

protecting his employment are an exercise in historical 

revisionism. Neither Judge Entz, nor the district court, nor 

this Court have ever so restricted that intervention. 

Furthermore, HLA's gloss on the scope of Judge Entz's 

interest as a sitting judge «cannot withstand scrutiny. 

Presumably HLA would claim that the owner of a house in a city 

has no care if the entire city is demolished so long as the 

individual house is left standing, albeit alone in a 

wasteland. Judge Entz, as a sitting judge, has an interest in 

more than simply being re-elected at large and continuing to 

draw his paycheck. He is vitally interested in the judicial 

structure of which he is a part. It blinks reality to say 

that the very nature of the judicial office in the vast 

majority of benches in the urban areas of the state can be 

dramatically transformed by the Surrender Agreement without 

affecting the isolated remnants of the judiciary established 

by the Texas Constitution. 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 2 

 



Moreover, HLA ignores Judge Entz's interests, of 

constitutional magnitude, as a lawyer, voter and citizen. The 

Surrender Agreement would unlawfully transform Texas' 

judiciary, in violation of the state and federal 

constitutions. As a citizen of the State of Texas, Judge Entz 

has an interest in preserving the properly adopted structure 

of state government against the unwarranted and 

unconstitutional intrusions of a federal district judge, 

particularly absent any found violation of the Voting Rights 

Act or the Constitution. As a voter, Judge Entz has an 

interest in preventing the Surrender Agreement from 

disenfranchising him and other voters from voting for 30 of 37 

district judges who make decisions that affect him as a 

resident of Dallas County. As a lawyer, Judge Entz has an 

interest in preserving a judicial system that works and 

complies with all of the multitudinous constitutional and 

practical constraints on the structure and operation of a 

court system. Any of these interests would justify Judge 

Entz's participation in this lawsuit and prosecution of this 

appeal on the merits. 

II N I WN TERM HLA' TANDING ARGUMEN IRCULAR 

Even were HLA correct that this is an issue of standing, 

rather than simply the propriety of Judge Entz's intervention, 

and even were HLA correct that Judge Entz's only legally 

cognizable interest here was in collecting his paycheck, the 

balance of HLA's argument would fail. HLA's (and other 

plaintiffs') pleadings assert a claim they say entitles them 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 3  



    

» » 

to the destruction of Judge Entz's job, as we now know it. 

The district court entered an order finding that Judge Entz's 

job violates section 2 and also entered an interim injunction 

that would have destroyed that job. Surely at that point in 

time, even under HLA's view, Judge Entz had "standing" to 

challenge the interim order and interim plan that affected him 

so directly. 

That order and plan are presently without effect because 

Judge Entz and Judge Wood perfected this appeal and obtained a 

stay. Now, following multiple hearings on the merits of this 

appeal, HLA and the other movants purport to deprive this 

Court of jurisdiction to consider the merits of this appeal. 

That puts the cart before the horse. Rather, Judge Entz's 

independently perfected appeal from an order that undisputedly 

affected his job divests the district court of jurisdiction to 

consider, much less implement, the Surrender Agreement. 

Had the purported settlement been reached before a 

finding on the merits on liability and entry of a preliminary 

injunction against and affecting Judge Entz, HLA might better 

argue that no appealable order affected Judge Entz and he thus 

had no appealable interest (assuming arguendo that HLA were 

correct about the scope of Judge Entz's interests). Here, 

just the opposite is true. Because Judge Entz perfected his 

appeal from an order undisputedly affecting him, HLA and the 

other movants cannot deprive the Court of jurisdiction over 

that appeal by carving Judge Entz out of their proposed agreed 

remedy for the hypothetical violation of section 2. 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 4 

 



  

Thus, the circularity of HLA's argument is evident: 

Judge Entz has no "standing" to appeal because the settlement 

will not affect him. The settlement will be valid and will 

not affect him because the district court will vacate its 

prior order and approve the settlement, which will be upheld 

on appeal. The district court will be able to do that because 

the Fifth Circuit will dismiss Judge Entz's appeal and 

remand. The Fifth Circuit can dismiss Judge Entz's appeal 

from the order directly affecting his job because he has no 

"standing" to appeal 

So, even were HLA correct on all its other premises, it 

is wrong about the propriety of dismissing Judge Entz's 

properly perfected appeal from an appealable order that 

directly affects him personally. Presumably, HLA believes 

that Judge Entz's standing to appeal comes and goes depending 

on the state of negotiations with the Attorney General and the 

status of approval of the Surrender Agreement. That is not 

the case, even were standing an issue. (Query whether Judge 

Entz's standing, rather than the minimal article III case or 

controversy requirement, is the issue here.) Judge Entz 

properly intervened, asserted valid interests applicable 

statewide that support his intervention and his standing to 

appeal, perfected an appeal and obtained a stay of the 

district court interim order, and is now entitled to be heard 

on the merits of his appeal, notwithstanding the Attorney 

General's desire to surrender. 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 5 

 



  

THEREFORE, for the reasons stated, Judge Entz requests 

that the en banc Court deny the Joint Motion to Remand, 
  

dismiss the Attorney General's appeal in accordance with the 

substance of his request, and, upon addressing the merits of 

this appeal, reverse the decision of the District Court and 

render judgment in favor of the defendants. 

Respectfully submitted, 

Tf Chol, 
Ls H. ' Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 

  

OF HUGHES & LUCE, L.L.P. 

1717 Main Street 
Suite 2800 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

CERTIFICATE OF SERVICE 
  

I certify that I served copies of the foregoing 

instrument by certified mail, return receipt requested, on 

William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, 

Suite 800, Dallas, Texas 75225; Rolando Rios, Milam Building, 

115 E. Travis Street, 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; 

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. 

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 6 

 



Box 12548, Capitol Station, Austin, Texas 78711-2548; 

J. Eugene Clements, Porter & Clements, 700 Louisiana, Suite 

3500, Houston, Texas 77002-2730; E. Brice Cunningham, 777 

South R.L. Thornton Freeway, Dallas, Texas 75203; James P. 

Turner, Department of Justice, P. O. Box 66078, Washington, 

D.C. 20035-6078; Joseph Jamail, Jamail & Kolius, 1 Allen 

Center, 500 Dallas Street, Suite 3434, Houston, Texas 

77002-4793 in accordance with the Federal Rules of Appellate 

Procedure this 3rd day of June, 1993. 

  

JUDGE ENTZ'S REPLY ON JOINT MOTION TO REMAND -- PAGE 7