Motion to Strike; Memorandum in Support; Proposed Order

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THE ATTORXNEY GENERAL 

OF TEXAS 

      

Jd PMATTOX January 6, 1989 
ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
United States District Clerk 
200 East Wall, Room 316 
Federal Building 
Midland, Texas 79701 

  

Re: LULAC Council #4434 v. Mattox, No. MO-88-CA-154 

Dear Sir or Madam: 

Enclosed for filing in the above-referenced matter are the 
original and one copy of a Motion to Strike, along with a supporting 
memorandum and a proposed Order. 

ne pte ls 
lenea Hicks 

Special Assistant Attorney General 

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

CC Counsel of Record 

S12/463=-2100 SUPREME COURT BUILIING AUSTIN, TEXAS 78711-2548 

 



  

* . 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 8 
Plaintiffs, 8 

§ 
8 

VS 8 Civil Action No. 

§ MO-88-CA-154 

§ 
JIM MATTOX, et al., 8 

Defendants. 8 

MOTION TO STRIKE 

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

moves the Court to strike two pleadings -- a Notice of Appeal and 

Defendant's Notice of Designation of Independent Counsel -- filed in 

this action on January 5, 1990, by John L. Hill, Jr., as purported 

"independent counsel for defendant George S. Bayoud, Jr., Secretary of 

State." The grounds follow: 

L The Secretary of State of Texas is named as a defendant in 

this action only in his official capacity as an officeholder with the state. 

He is not named as a defendant in his personal capacity, and he has 

not sought to intervene in such a capacity. 

2. While technically irrelevant to the merits of this motion, 

the fact that the "independent counsel” has prematurely drawn the 

battle lines between the Attorney General of Texas and himself as a 

private attorney attempting to act for a limited time and purpose as an 

Attorney General should be brought to the Court's attention. First, the 

pendency of the timely-filed Motion to Alter the Order of January 2, 

1990, renders the Notice of Appeal by the "independent counsel" a 

 



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nugatory act anyway. See FRAP 4(a)(4) (under such circumstances, a 

notice of appeal by any party "shall have no effect"). Second, the 

Attorney General on behalf of the Secretary of State and others already 

has appealed the only order of this Court that thus far arguably could 

have been appealed. On December 22, 1989, he filed a Notice of 

Appeal of the Court's liability decision, the Order of November 8, 

1989. Third, the Attorney General has never indicated that he would 

not seek a stay of this Court's Order of January 2, 1990. He just did 

not do it a day or two after the Court's ruling as the Secretary of State 

now seems to have wanted. Instead, the Attorney General as the 

state's chief legal officer has deemed it advisable to await the Court's 

disposition of the pending Rule 59(e) motion to alter the January 2nd 

order. Assuming that the Court rules on the motion on Tuesday, 

January 9th, the "independent counsel's" complaint at this point is 

nothing more than an insignificant disagreement over the legal 

strategy of whether to seek a stay on a particular day instead of less 

than a week later. It seems highly inappropriate for a federal court to 

sanction the usurpation by a private attorney of the state constitutional 

authority conferred on the Attorney General because of a disagreement 

over whether to seek a stay on one day instead of another. It certainly 

would be inappropriate to condone such usurpation based on an 

unsupported assumption that such a stay application, if necessary at 

all, would not be sought at the appropriate time. 

3. The Eleventh Amendment to the Constitution of the 

United States bars the plaintiffs in this action from naming the State 

of Texas itself as the defendant. The state officeholders named as 

official-capacity defendants in this action are named in its stead only 

-92-  



  

to avoid the Eleventh Amendment impediment and only under the 

auspices of the well-recognized legal fiction permitted by the Supreme 

Court in its landmark decision of Ex parte Young, 209 U.S. 123 

(1908). In these circumstances, the officeholders are mere 

substitutes for the state itself, which is the real party-defendant in 

interest. This reality already has been recognized by the Court in its 

Order of January 27, 1989, at pages 3-4, when it denied Midland 

County's intervention for lack of a legally protectable interest because 

redistricting is a matter for the Texas Legislature or one of its 

delegates (the Judicial Districts Board or the Legislative Redistricting 

Board), not the counties of Texas. The Fifth Circuit affirmed the 

Court's order. LULAC v. Clements, 884 F.2d 185 (5th Cir. 1989). 

4. The Attorney General of Texas is the only state official 

authorized under the Texas Constitution to represent the real party- 

defendant in interest in this case -- the state -- in this Court. In some 

circumstances, other attorneys may represent the legal interests of 

the state and its officers but only under one of two conditions: either 

the state officer is a defendant in his or her personal capacity; or the 

Attorney General has authorized the state officer to be represented by 

outside counsel. Neither of those two conditions has been satisfied in 

this instance. Therefore, the "independent counsel" has no authority 

to make an appearance in this Court on behalf of the Secretary of State 

in his official capacity, and any pleadings he attempts to file should be 

stricken. 

Based upon the foregoing matters, the Attorney General requests 

the Court to grant this motion and strike the pleadings as urged. 

 



  

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

eo) Deed,     
RENEA HICKS N 
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 6th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier 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; and John L. 
Hill, Jr. Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002. le 

  

Renea Hicks 

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

Civil Action No. 

MO-88-CA-154 
VS. 

JIM MATTOX, et al., 

Defendants. on
 

Go
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Co
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Un
 

Go
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MEMORANDUM SUPPORTING MOTION TO STRIKE 

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

submits the following memorandum in support of his motion to strike 

pleadings which Mr. Hill as "independent counsel" has attempted to 

file in this case on behalf of a state official already represented in his 

official capacity by the Attorney General: 

THE FICTION OCCASIONED BY THE ELEVENTH AMENDMENT 
CONTRASTED WITH THE UNDERLYING REALITY 
  

  

The noted constitutional scholar and federal court authority, 

Professor Charles Alan Wright, has described the landmark case of Ex 

parte Young, 209 U.S. 123 (1908), as one of the three most important 

decisions the Supreme Court has ever made. C. Wright, A. Miller, & E. 

Cooper, 13 Federal Practice and Procedure § 3524, at 151 n. 50 

(1984) ("Wright's Federal Practice"). The impact of Ex parte Young on 

the posture of this case demonstrates why the Court must treat the 

State of Texas as the real party-defendant in interest in this voting 

rights case and why the numerous state officials named in their official 

capacities only are only nominal parties to this lawsuit. 

Ex parte Young broadly upheld the proposition that, 

notwithstanding the state immunity from federal suit conferred by the 

 



  

Eleventh Amendment, private citizens could obtain federal court 

injunctive relief to stop the enforcement of state laws that violated 

federal law. Otherwise, the federal courts would have been powerless 

to enforce their legal determinations, and private citizens could never 

come to federal courts for protection from unconstitutional state 

action. 

Ex parte Young accomplished this important step in the 

development of federal law by holding that the Eleventh Amendment 

did not prevent citizens from suing state officials in federal court 

instead of the state. In the Supreme Court's view, state officials are 

not empowered to implement or enforce unconstitutional state laws; 

therefore, when they do so, they are in some sense acting beyond 

their official duties and are subject to being enjoined to act within the 

bounds of their official duties -- which is to say, consistently with 

federal law. 

These same actions of the state officials are given a different 

caste when viewed from the perspective of the Fourteenth 

Amendment and Congressional enactments pursuant to it, such as the 

Voting Rights Act. From that angle, they still constitute state action, 

which is the kind of action addressed in the amendment. Thus, one 

action by a state official is simultaneously characterized in two 

different ways. It is, in some sense, not state action for Eleventh 

Amendment purposes, but state action for Fourteenth Amendment 

purposes. 

It is well-recognized, albeit also well-accepted as necessary, the 

Ex parte Young solution is a legal fiction. As explained in Professor 

Wright's treatise: 

 



To be sure, the doctrine of Ex parte Young has 
a fictive quality to it; nonetheless, it serves as 
an effective mechanism for providing relief 
against unconstitutional conduct by state 
officers and for testing, in the federal courts, 
the constitutionality of the state statutes under 
which they act. 

Wright's Federal Practice, vol. 13, § 3524, at 154. 

In Alabama v. Pugh, 438 U.S. 781 (1978), the Supreme Court 

held that the state itself and its agencies could not be named 

defendants in federal court without running afoul of the Eleventh 

Amendment. There are exceptions to this rule if the state has 

specifically waived its immunity or Congress has explicitly overridden 

it in certain kinds of statutes. No party has argued that either of those 

exceptions applies here in this voting rights case. Therefore, the 

State of Texas itself could not be named as a defendant in this case. 

The only way for the plaintiffs to bring their action was to name some 

state officials as defendants in their official capacities. That is what 

happened. 

From the foregoing discussion, it is clear that the presence of 

the state officials, including the Secretary of State, as defendants is a 

mere byproduct of the Ex parte Young fiction's interraction with the 

Eleventh Amendment. Obviously, the real defendant and the real party 

in interest here is the state itself, not the official-capacity state 

defendants. Again, Professor Wright's treatise explains what is really 

going on:  



  

* oe 

When "official capacity" is given the broad 
interpretation argued for in the preceding 
section, the reality is that the suit is for or 
against the government. The manipulation of 
names is merely a technicality that should not 
interfere with substantial rights. 

Wright's Federal Practice, vol. 7C, § 1962, at 581 (emphasis added). 

This recognition of reality is ensconced in recent Supreme 

Court law. Apparently troubled by the fact that the "distinction 

[between official-capacity and personal-capacity suits] . . . continues to 

confuse lawyers and confound lower courts," the Court explained: 

Official-capacity suits . . . "generally represent 
only another way of pleading an action against 
an entity of which an officer is an agent." As 
long as the government entity receives notice 
and an opportunity to respond, an official- 
capacity suit is, in all respects other than 
name, to be treated as a suit against the entity. 

Kentucky v. Graham, 105 S.Ct. 3099, 3105 (1985) (internal citations 

omitted). 

The law is firm that the plaintiffs’ voting rights suit against the 

Secretary of State (and, for that matter, the other named state 

officials) in his official capacity is against the State of Texas. The 

Secretary of State in his official capacity has no legal interest (as 

opposed to a personal or policy interest) separable from the state's 

legal interest as the real party-defendant in this case. Thus, he cannot 

as a state official split himself off from the state, retain a private 

attorney (for free or otherwise) unanswerable to the voters, and 

purport to speak in federal court as the state (which is already spoken 

for) or as a person with his own views (in which capacity he has not 

appeared in the lawsuit, although others have, unopposed by the 

 



  

* \J 

Attorney General). That way lies chaos for the state and, more 

importantly for purposes of this motion, for the federal courts. 

THE ATTORNEY GENERAL REPRESENTS THE STATE OF TEXAS IN 
FEDERAL COURT 
  

  

State officials are not empowered to have private attorneys 

represent them in their official capacity in injunction actions such as 

this one in federal court, unless (as has not happened here) the 

Attorney General authorizes it. That proposition is well-respected in 

practice and in law. There is nothing empowering the Secretary of 

State in his official capacity to go on his own into federal court and 

take legal positions and implement legal strategies on behalf of the 

state. Under the Texas Constitution, he must go through the Attorney 

General or not at all. Federal law is to the same effect. 

Texas Law 
  

The Attorney General of Texas, as the chief legal officer of the 

state, is the only state-wide official entrusted by the Constitution and 

laws of Texas with the duty to represent the state in civil litigation. 

See TEX. CONST. art. IV, 822: TEX. CONST. art. IV, 822. interp. 

commentary (Vernon 1984); TEX. GOV'T CODE ANN. § 402.021 (Vernon 

Supp. 1988). 

The Attorney General as the sole officer authorized by law to 

protect the collective interests of the state in litigation is clothed with 

"broad judgment and discretion" and must remain free to exercise his 

discretionary legal authority in an independent manner "which will 

not be controlled by other authorities." Charles Scribner's Sons v. 

Marrs, 262 S.W. 722, 727 (Tex. 1924). 

 



  

This broad discretionary authority necessarily extends to the 

control of litigation involving other state-wide constitutional officers. 

In Bullock v. Texas Skating Ass'n, 583 S.W.2d 888 (Tex. Civ. App. -- 

Austin 1979, writ refd n.r.e.), the court upheld the authority of the 

Attorney General to appeal a judgment of a district court against the 

instructions of the Comptroller of Public Accounts: "[i]Jt was within the 

discretion of the Attorney General, not that of the Comptroller, to 

decide whether to appeal a case in which the State had experienced 

an adverse judgment in the trial court." Id. at 894. Cf. Hill v. Texas 

Water Quality Board, 568 S.W.2d 738, 741 (Tex. Civ. App. --Austin 

1978, writ refd n.r.e.) ("Hill") (the Attorney General has the "exclusive 

right and power under the Constitution and statutes to represent state 

agencies."); United States v. Texas, 680 F.2d 356, 368 & n.16 (5th Cir. 

1982) ("Texas") (the Fifth Circuit applying Texas law held that "the 

Attorney General enjoys an exclusive right to represent state 

agencies"). 

The Attorney General's exclusive authority over other state-wide 

officials to control the civil litigation of the state becomes especially 

significant when the state-wide official challenging his authority -- the 

Secretary of State -- is appointed and not elected by the people of the 

state. See, e.g., Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052, 1056-57 

(Tex. 1905) (The important function of representing the state as an 

attorney in all cases in which the state should be a party logically 

belongs to a "general state officer, like the Attorney General, [who is] 

elected by the people of the whole state[].") Thus, given the Attorney 

General's exclusive authority, if another elected state-wide official 

seeks to retain the services of other lawyers, those other services 

B5- 

 



  

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must be with the Attorney General's "permission and 'in subordination’ 

" to his authority. Texas, 680 F.2d at 368 n.16 quoting Hill. See 

General Appropriation Bill, 71 st Leg., Art. V, § 41 at 69-70. 

Federal Law   

Federal courts must show special deference to the expressions 

of a state's Attorney General about the allocation of authority among 

state officers to represent the state. New York v. Uplinger, 467 U.S. 

246, 247 n.1 (1984); see also Moor v. County of Alameda, 411 U.S. 

693, 720-21 (1973) (state's view on matters concerning allocation of 

state political authority entitled to special deference). 

Federal statutory law is premised on the proposition that the 

attorney general of a state is the representative of his or her state's 

public interest in legal affairs in federal courts. For example, 28 U.S.C. 

§ 2403(b) requires federal courts to certify constitutional questions 

about state statutes to the state attorney general if the state is not 

otherwise a party. See, e.g., Bridges v. Phillips Petroleum Co., 733 

F.2d 1153, 1156 n.7 (5th Cir. 1984). 

CONCLUSION 

The Attorney General, not private attorneys, is the source to 

which federal courts are obligated to turn for expressions of the state's 

legal position. The Attorney General of Texas was elected to and does 

speak for the state in the courts. He, not the "independent counsel," 

speaks for Texas here. The Secretary of State is not the State of 

Texas, and his lawyer is not the state's lawyer. Recognition of this 

necessary legal principle should result in the striking of the pleadings, 

as sought in the motion supported by this memorandum. 

 



  

# * 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Z frm lt A 
  

~—RENEA HICKS 
Speci Assisiont Attorney General 

Cece, = Cat ar Is 
  

~ JAVIER GUAJARDO ~ 4 
Assistant Attorney Gener 

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

CERTIFICATE OF SERVICE 

I certify that on this 6th dav of January, 1990, I sent a copy of 
the foregoing document by overnight courier 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; and John L. 
Hill, Jr. Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002. IY 

  

Renea Hicks 

 



* *® 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

VS. Civil Action No. 
MO-88-CA-154 

JIM MATTOX, et al., 
Defendants. 

ORDER 

On this day came before the Court the Attorney General of 

Texas's Motion to Strike. After giving due consideration to the 

matters raised therein and in other filings in connection with it, the 

Court is of the opinion that it is well-founded. Accordingly, it is 

hereby 

ORDERED that the Motion to Strike is GRANTED. It is 

FURTHER ORDERED that the Notice of Appeal and Defendant's Notice 

of Designation of Independent Counsel, filed on January 5, 1990, are 

ordered stricken. The putative independent counsel has no authority 

to represent the Secretary of State of Texas in his official capacity in 

this lawsuit. 

SIGNED and ENTERED this ___ day of January, 1990. 

  

LUCIUS D. BUNTON 
Chief Judge