Deposition Summary of Justice Thomas Phillips

    MATTHEWS & BRANSCOMB 
A PROFESSIONAL CORPORATION 

ATTORNEYS AT LAW 

301 CONGRESS AVENUE, SUITE 2080 

  

I800 FIRST CITY BANK TOWER AUSTIN, TEXAS 7870I ONE ALAMO CENTER 

CORPUS CHRISTI, TEXAS 78477 TELEPHONE 512-320-5055 SAN ANTONIO, TEXAS 78205 

512-888-9261 TELECOPIER 512-320-5013 5|2-226-421| 

August 8, 1989 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and 
Educational Fund, Inc. 

Suite 1600 
99 Hudson Street 
New York, New York 10013 

RE: LULAC et al, v. Mattox, et al.i Our File 

#A-12465-0001 
  

  

Dear Sherrilyn: 

I enclose herewith a copies of the following in connection 

with the above-referenced case: 

(1) Oral Deposition of Justice Thomas R. Phillips (along 

with his correction page); 

(2) Exhibits to the Deposition of Justice Thomas R. 
Phillips; and 

(3) Deposition Summary of Justice Thomas Phillips. 

You should be receiving within the next few days, a copy of 
the Notice of Intention to Take Deposition by Written Questions 
of the Harris County Clerk. 

Please call me if you have any questions regarding the 

foregoing. 

Sincerely yours, 

MATTHEWS & BRANSCOMB 
A Professional Corporation 

lo 57 oo hd 

$7 A A SB 4 Sp ~ SSA UR STE br 

Michael Breck 
Legal Assistant 

6GKMdd:klr 

Encls. 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

vs. NO. MO-88-CAa-154 

MATTOX, et al., 

N
L
D
)
 

Defendants. 

DEPOSITION SUMMARY OF JUSTICE THOMAS PHILLIPS 
  

Page(s) 

7 Phillips has been Chief Justice of the Supreme Court of 
Texas since January 4, 1988. Discussion regarding 
stipulations. Exhibit 1 is identified. 

9-10 Discussion regarding the nature of a deposition. 

11 Discussion regarding documents provided by the witness. 
They include clippings marked, "Profile 1989", "Press 
Clips" and "State of the Judiciary, and Addressed to 
the Joint Session of the 71st Legislature on February 
14, 1989, by Chief Justice Thomas R. Phillips, Supreme 
Court of Texas". There is also a large stack of 
documents entitled, "Presiding Judges, Administrative 
Judicial Regions. . .." 

12 The newspaper clippings would fit into category 1. The 
Manual of Judicial District's Board would fall into 
category 2. The speech on the State of the Judiciary 
relates to category 1. 

13 The appendix to the speech relates to category 5. 
Regarding Requests 3 and 4, he may have some incomplete 
newspaper files of lawsuits in other states involving 
the judiciary. He has no documents for number 4. 

14 Everything he has relating to Request No. 1, he has 
provided, and that is the speech and the clippings. 
All of his other speeches have been extemporaneous. 

15 Regarding Request No. 2, he has provided the manual, 
"Office of the Court Administration, Texas Judicial 
Council". He has nothing in response to Request Nos. 3 

 



  

and 4. On reflection, there could be some documents 
regarding the legislation of Bexar County which would 
be producible. He will find those materials. 

16 He has not objected to any of the Requests which have 
been made upon him. Hicks interjects that down the 
road, they may come across some documents that they 
would view as being privileged, at which time an 
objection would be made. 

17 He knows of no other documents responsive. The speech 
entitled, "State of the Judiciary" is marked as Exhibit 
2. A group of clippings is marked as Exhibit 3. 

18 Discussion between McDonald and Mow regarding his 
dialogue during the deposition. 

19 Document identified as "Political Party in Last 
Election, Texas Judges" is marked as Exhibit 4. 
Discussion regarding personal background of the 
deponent. 

20 Discussion regarding his residences in Austin and in 
Houston. 

21 He was born in Dallas, but has practiced law in Houston 
from 1975 to 1981. At that time, his residence was on 
Timmons near Greenway Plaza. 

22 In 1982, he got married and moved to Wroxton Road and 
lived there until 1984 when he moved to Sunset Blvd. 
He attended high school at Woodrow Wilson High School 
in Dallas. The High School was at 100 S. Glasgow 
Street. 

23 Graduated from High School in 1968. There were no 
blacks in his graduating class. In 1969, Dallas began 
a stair-step integration plan. 

24 There were 395 students in his graduating class. The 
school was integrated in his junior and senior years, 
but his graduating class was all whites. He had no 
brothers or sisters. He attended college at Baylor 

University. 

25 He attended Baylor from 1968 to 1971. He would think 
his college graduating class had 2 to 3 percent blacks. 
He graduated in a summer class of about 100, and does 
not recall if there were any blacks in that class. 

 



The elementary and junior high schools he attended were 
all white. About 100 people graduated with his college 
summer class, but there were about 1,500 people who 
graduated from Baylor each year. 

He graduated from Harvard Law School in 1974. He 
entered Harvard Law School in 1971 and graduated in 
1974. : 

There were blacks in his law school classes. He thinks 
there were about 11 percent blacks in the Harvard 
classes. The 11 percent could be minorities, not just 
blacks. He changes that and says there were 11 percent 
females in the class. He thinks a pure guess would 
comé up with a 5 percent figure of blacks in the 

Harvard classes. 

None of his roommates at Harvard were black. He 
belonged to a social service club at Baylor and to an 
eating club at Harvard. 

The social service club at Baylor was called Circle K, 
and there were blacks in the organization. The blacks 
in the eating club at Harvard might have numbered 2 or 
3. The eating club was an establishment that served 
meals, which was an alternative to eating in 
cafeterias. 

He'd rather discuss his reasons for going to Harvard 

off the record. 

He did not graduate from Harvard with Honors. Harvard 
did not give rankings, but he knows he was in the top 
half of his class. He was valedictorian of his high 
school class. He had all A's in his academic classes 
at Baylor, but some required P.E. classes caused him to 
not graduate first in his class from Baylor. 

He only took the Texas Bar. He passed the Bar in 1974. 
He was admitted to practice October 22, 1974. He began 
his legal career clerking for Supreme Court Justice 
Ruel C. Walker. He was his briefing attorney for one 
year. 

In 1975, he began working for Baker & Botts in Houston. 
He stayed with Baker & Botts until 1981, when he was 
appointed to the state district bench appointed by 

Governor Clements.  



  

35 He served on the bench of the 280th District until 
1988. He handled civil cases throughout that time. In 
1988, he became Chief Justice of the Supreme Court. 

36 He was appointed to the Supreme Court by Governor 
Clements. He has always run for election as a 
Republican. 

37 There is no party registration in Texas, so he has 
never registered as a Republican. 

38 He has not always voted as a Republican and has not 
always held himself out as being a Republican. He 
voted in Democratic primaries in 1972, 1974, 1976, 1978 
and 1980, and was a delegate to Senatorial Democratic 
Executive Committee in 1976. 

39 From '72 through '80, he voted in Democratic primaries. 
Since 1976, he has not been involved in any political 
conventions. 

40 In 1982, he ran for District Judge as a Republican. 

41 In the mid-1970's, he gave money to both political 
parties. 

42 He doesn't think he gave over $125.00 to any candidate. 
In 1982, he ran® for the District .Judgeship as a 
Republican because he had been appointed by a 
Republican Governor. He has never considered himself 
to be a party person. 

43 Since Clements was a Republican and had appointed him, 
Phillips felt that he should run as a Republican. 

"g He applied and campaigned for the Judgeship position. 
Appointments are not made by party, many of Clements’ 
appointees ran as Democrats around the state. 

45 He considered himself to be an independent. The 
Democratic primaries had probably 5 times as many 
contested races and most people who wanted to vote 
would do so in the Democratic primary. If you wanted 
to have a say in any of the contests of who was going 
to be a public official at any level, the Democratic 
primary was where those issues were decided. Prior to 
1980, only 6 people ever ran for judge as Republican, 
and there were no contested primaries prior to 1980 in 
Harris County for a Republican judicial position. 
Voting in the Republican primary was an act of showing 

 



  

who you were affiliated with, but did not actually 
settle much. 

46 The Republican primaries seldom had any races with more 
than one contestant. 

47 The Democratic party gave the voter a chance for his 
voice to be heard the loudest. The Republican primary 
had less contested cases. In 1980, Harris County voted 
more Republican than Democratic, by a very close 
margin. Prior to 1980, the Republicans had won only 4 
Senate races and only 1 Governors race, but nothing 
else. The Republican candidate for President had 
carried the state 4 times in that century. 

48 Prior to 1980, if you chose to participate in an 
election as a Republican, you would have a hard time 
expecting victory. 

49 In 1980, more Republicans won contested races than 
Democrats. 

50 1980 was the first time any Republican ever won a 
judicial irace in Harris County. If you were a 
Republican, you had a hard road to hoe prior to 1982. 
The system at state judicial judges were elected under 
in 1982 is the same system you have today. 

51 In a speech in February 1989 before the State 
Legislature, he said the change was not an option and 
the status quo was not to be accepted. His position 
was that there should be a change in the system. 

52 There have been some minor changes in judicial 
elections, at least in Harris County, since 1982. A 
ballot signature act has been passed and the filing fee 
was raised. Exhibit 4 . indicates that in the "last 
elections, Republicans were a minority in all of the 
races. 

53 He believes the present system is unacceptable because 
the method of choosing judges does not encourage the 
recruitment or retention of people to be judges in a 
manner that promotes the most efficient decisions, the 
most intellectual decisions and decisions that have 
merit and confidence with people in the state. One of 
those reasons is running on a party label, which to him 
is unacceptable, because there is no platform that a 
judge can have that has anything to do with a party 
label, and those who have tried to identify the judges 
who have a one party label as opposed to another will 

 



  

act in a certain way, have almost universally been 
disappointed in trying to make that label mean 
anything. 

54 The second problem with the system is the way they go 
about raising money and spending money to get and keep 
judicial positions. He thinks it is very damaging to 
the public confidence in the delivery of justice in the 
system. Close to half of the states have formal limits 
on who can give money to how much they can give in a 
judicial race. Other states have institutionalized 
systems where nobody runs against an incumbent or where 
there are no expensive contested judicial elections. 
Texas is almost unique as a system where judicial 
elections are run like elections for any other job. 
Judges are not supposed to have an agenda. They're not 
supposed to favor one set of coalitions over another. 
One of his problems with the system is that, in most 
judicial elections, most of the votes are cast on 
straight party lines. He would guess it's just easier 
to vote a straight party ticket. 

56 He thinks it's inappropriate for a judge to have a 
party label identified with him. He doesn't think 
party . affiliations says anything about : his job 
performance as a judge. Doesn't think it's fair for 
people to have to go into Court facing some of the most 
important decisions in their lives, and having to worry 
about if their lawyers played a part of how a judge 
makes a decision. 

57 He was the first Republican to win the Chief Justice 
position. He believes more money was spent in his 
election than in any in the United States. There may 
have been a judicial retention election in California 
in which more money was spent. 

58 He was the first Republican Chief Justice elected in 
the State of Texas, and more money was spent in that 
election than in any other judicial election in the 
history of Texas. 

59 His election and the judicial election in California 
are the big two when it comes to spending. He started 
the practice of law with Baker & Botts in 1975. There 
were some black associates with the firm at that time. 

60 Rufus Cormier, James Plummer and Gabrielle Morris were 
three black associates. 

61 Ron Lewis came after he was there. 

 



  

62° He did not ever participate in any political activities 
where he worked closely with blacks. 

63 In his last Chief Justice race, and he is sure at other 
times in the past he has worked peripherally with 
blacks. He donated money to Matthew Plummer and 
Barbara Jordan. He voted for a black for Chairman at 

the Senatorial District Convention he attended in 1976. 

64 He has held no other elected positions other than 280th 
District Judge and Supreme Court Justice. He worked in 
the Democratic party from 1972 through 1976 and 1981 
and, in 1982, was appointed by Governor Clements to a 
judgeship position. He ran for election in 1982 for a 
judge as a Republican. 

65 He was not opposed in that election. He ran in 1982 
for a four year term, and was re-elected in 1986. He 
was not opposed in 1986 either. 

66 He was a member of the Harris County Bar. 

67 He was a member of the Houston Bar Association. He 

held no offices in the Houston Bar Association. He 

worked on no committees. 

68 He did not work in the Young Lawyers Association or any 
of their committees. He handed out some cards in 
working for the Democratic party in 1976. 

69 As to why Clements selected him for the judicial 
position in Houston, he would guess that Clements was 
not looking at party activity of a main determinant of 
who would be appointed. He recalls an amendment that 
created an article which required that all district 
court judges be elected from no district smaller than a 
county. 

70 In 1985, for the first time, there was an amendment to 
the Constitution that provided that district court 
judges will be elected from no smaller district than a 
county. 

71 An objection is raised as to privilege grounds for any 
questions which would inquire into Judge Phillips’ 
interpretation of state law. 

72 If there is to be a reapportionment, it must be from 
districts no smaller than a county. He is not aware of 
any such limitations prior to 1985. He is not aware of 
the Legislative history of the bill sponsored by 

 



  

Senator Washington proposing that judges be allowed to 
run from districts smaller than county wide. 

73 He has heard of Senator Washington's bill, but does not 
know the history. He thinks Senator Washington's bill 
was passed the same year as the 1985 amendment. In 
1989, he went to Washington, D.C. to meet with 
Department of Justice officials. He did not know that 
in 1988, other senators and representatives went to the 
Department of Justice. 

74 He went to Washington with Senator [Kapperton, 
Representative Gibson and three faculty members from 
Baylor University. The people from Baylor were: Mike 
Morrison, David Guinn and Mike Rogers. 

75 The people he talked to at the Justice Department were 
Gerald James and Sandra Coleman. 

76 The purpose of going to D.C. was to discuss a merits 
election bill and what problems, if any, that type of 
legislation might have in winning pre-clearance with 
the Justice Department. They knew that if the 
Legislature passed a change, any change in the election 
of judges would have to be pre-cleared. They wanted to 
have an informal discussion with the Justice Department 
about the history and procedure that they would look at 
in deciding whether or not to pre-clear a 
Constitutional amendment. The Justice Department did 
not tell his group anything specific, they talked in 
generalities about things which had been pre-cleared in 

the past. 

77 They said that minority participation in the creation 
of the plan and its execution was something they would 
look at very strongly. There has been some minority 
participation in their efforts since its inception. 

78 No other justices went with him. He thinks all three 
professors from Baylor who attended the conference had 
been on both sides of voting rights cases. They are 
against election of judges by districts smaller than a 
county. 

79 He viewed his trip as being clearly in his official 
capacity as head of the Judicial Branch of the Texas 
government. He did not suggest anything specific to 
the Department of Justice. 

80 He does not think that it would be fair to say the 
Justice Department told him that unless they got 

 



td 

4 

  

minorities involved, they would not approve the plan. 
The Department said they would look very closely at 
minority participation. Their job was to make sure 
that no change in an election procedure would dilute 
minority vote. One of the things they would look at 
very strongly was the amount of minority participation. 
Phillips says that the system needs to be changed and 
that they should work for changes in a way which would 
lead to more minority and ethnic judges. He thinks it 
would be better for the State. 

81 Phillips feels that people of all racial and ethnic 
backgrounds. should feel they have a stake in the 
judicial system and that all qualified persons have 
equal opportunity to serve in the judiciary. He feels 
the retention election system will increase the 
participation of minorities. He knows of no blacks who 
have run for the position of Supreme Court Justice, 
Associate Supreme Court Justice or Chief Justice. 

82 With a slight qualification, he basically said that the 
Legislature should make the change or the federal 
courts will come in and do it for them. His qualifier 
is that the Plaintiffs seem to be winning in every 
other state, so you could draw your own conclusions. 

83 He knows of a defendant who has won a voting rights 
lawsuit, it was the City of Austin in a city council 
election. One alternative he has mentioned in the 
past, is "multiple voting". He thinks that system 
would be Constitutional. He thinks it would be a 
terrible system for elective judges. Judges have to 
cooperate with each other, and if everyone would run 
against each other, there would be tremendous pressure 
to grab the high profile newspaper cases. There would 
be an incredible premium on spending your time speaking 
and going to weddings and wakes. 

85 It would also mean that every judge would have to raise 
a campaign chest every election. The present system 
has 3/4 of all judges running unopposed. Fifty-five 
percent of all the judges at the time of his speech 
were appointed. The percentage of judges initially 
appointed who have never been opposed is higher than 43 
percent. 

86 Those facts tell him that an election for a judge is 
different from an election for other offices because 
there is a much smaller pool of available candidates. 
A judge is a full-time job and, therefore, it takes a 
real change of life. It's “his position that the 

 



  

retention system he has proposed would be more 
democratic than the election system because 43 percent 
of the judges are unopposed incumbent judges. 

87 He feels his system would increase the opportunity for 
minority judicial services. He believes it is true 
because most appointing authorities are sensitive to 
increased minority representation, those states seem to 
have more minority judges. 

88 He does not feel that any system of merit selection 
would be politically viable unless it was structured in 
a way that would guarantee more minority 
representation. The Louisiana system, which he has 
explored, was a system where the merit committee came 
from sub-districts. The judicial bench would be 
assigned to a sub-district, and the remainder of the 
panelists would have to reside in that sub-district and 
reflect its ethnic or racial and sexual balance so 
that, presumably, people would tend to send names in 
that were people of the race that nominated that 
sub-district. He thinks the people would nominate 
people who they knew and that if there was a perceived 
lack of black judges in relation to the population, 
black judges would in the near future be nominated for 
those positions. 

89 He thinks an absolute quota would have legal problems. 
He thinks the judiciary panels would nominate people 
who they knew. He thinks that a hispanic or black 
panel would have a feeling that .it was their 
responsibility to send black and hispanic names to the 
Governor for appointment. It would be a major change 
in the way judicial selection was designed and should 
lead to increased minority appointments within the 
judiclary. 

90 The goal of such a plan of retention selection would be 
to get a judiciary that would be more broadly 
reflective of the community. He does not think that 
panels would select only people of their own race, but 
that they would certainly be looking to select those 
type people. 

21 He knows that, historically, there has been an official 
discrimination in Harris County. He didn't have a 
black in his class until he went to Baylor. 

92 He knows there has been historical discrimination in 

Texas and Harris County. Regarding black «city 
councilmen in Houston, he knows of Anson Judson. 

 



  

93 There is El Franco Lee, a County Commissioner, State 
Senator Fred Washington, State Representative Ron 
Wilson, Harold Dutton, Sylvester Turner and Senfronia 
Thompson. He knows that each of the black elected 
officials he mentioned was elected by either a 
combination at-large system or a combination at-large 
and single-district member district. 

94 He thinks there are also black judges at the district 
court level in every division. 

55 He agrees that the number of black elected public 
officlals in Harris County are few in number. He 
doesn't know if Justine Robinson was the first elected 

black official in Harris County. 

96 Assuming that until the system was changed to elect 
some city councilmen by district and some by at-large, 
and there are no other black city councilmen he would 
support the contention that black elected officials 
were few in number. He knows where the intersection of 
Ennis and Elgin is. 

87% He doesn't know if Riverside Hospital used to be called 
"Negro Hospital". He is sure he has been to the 
intersection of Darling and Ennis. : 

98 Running for office as a Republican with swing votes 
would be in the rural areas. Many of the urban voters 
have generally made their minds up, and the ones that 
haven't, you reach by going door-to-door. He is not 
sure if he won the City of Houston. 

99 He got 60 percent of the vote in the County. He is 
sure he had a bigger vote percentage-wise out of the 
City of Houston than in the City of Houston. He thinks 
he won the City of Houston. If he depended upon the 
inter-city votes, he probably would not have won 
running as a Republican. 

100 In his last election, he did not go to the intersection 
of Ennis and Elgin. He probably went to the Fifth 
Ward. 

101 He knows that there are certain Wards in Houston which 
are predominantly black, such as the Fifth, Fourth and 
Third Wards. 

102 He knows Weldon Berry. Forty-three percent of all 
judges currently sitting have never been opposed, 

 



  

regardless of how they initially got to the bench. “He 
knows Andrew Jefferson. He is black. 

103 Jefferson was appointed. Jefferson resigned 
voluntarily from the bench. He knows James Muldrow. 
Muldrow was elected by the County Commission. Muldrow 
lost re-election. He knows Alice Bonner, she was 
appointed, won election as county court at law judge, 
lost as district judge. 

104 He knows Henry Doyle. Doyle was appointed, Doyle won 
re-election. Doyle is deceased now. He attended and 
historically created negro school. 

105 Bonnie Fitch was appointed by the County Commissioners. 
She lost re-election. Francis Williams was appointed a 
judge and he lost re-election. 

106 Weldon Berry was appointed to the judgeship and lost 
election. Ken Hoyt was a black Republican who was 
appointed to the bench and lost at election time. He 
has heard Hoyt say that he did not want his face to be 
put on the ballot because if he was identified as a 
black, he would not be elected. 

107 Hoyt won, but it was after he refused to have his face 
put on the Republican ballot. Hoyt stated he 
intentionally would not put his face on the ballot 
because he felt people would know he was a black and he 
would not have a chance to win. 

108 Carolyn Hopson was a black, but was not appointed as 
was Carl Walker. Tom Routt was appointed, but won 
re-election. 

109 He knows that John Peavy was a black who was appointed 
and ran unopposed in 1986. 

110 Routt was always opposed in the primary. He has always 
been opposed in the general election. He corrects that 
and thinks Routt was unopposed once. Andrew Jefferson 
was opposed once, but doesn't know about the second 
time. Harris County is the most opposed county. It 
has the highest incidents of opposition in the state 
because either party can win in the general election 
and, therefore, it's essentially a 50/50 chance. 

111} Based on Chart E to Exhibit 1, Judge Routt has been 
unopposed in two general elections and opposed in one 
and unopposed in three primaries. Judge Peavy has 
never had a general election opponent and he was 

-.12 = 

 



  

opposed in one primary and unopposed in two others. He 
thinks the most relevant number is how many judges now 
sitting in Harris County have never been opposed. 
There are fifty-nine district judges and he thinks that 
only eleven out of the fifty-nine have never been 
opposed. All of those judges were on the bench prior 
to January 1, 1980. He doesn't feel that Harris County 
is a very valid place because of the high incidents of 
opposed races. Regarding blacks who have ran for 
Supreme Court, Court of Criminal or Civil Appeals, 
Henry Doyle and Ken Hoyt have run as has Carnegie Mims. 

113 He knows of no blacks who live in Pasadena. He doesn't 

know much about the demographics of Pasadena. 

114 Regarding people who have run and won, he would name 
Peavy, Routt, Hoyt and Matt Plummer. 

115 Of all the judges who have been read off, only Peavy 
and Routt have been appointed, ran and won. There 
would also be Jefferson. There's also Matthew Plummer. 
His 43 percent figure is a number of sitting judges who 
have never been opposed. 

116 The three black judges he read off were opposed. Based 
on the statistics he has been given, he couldn't say 
that the Harris County figures would be dispositive of 
the proof that it was harder for blacks to win a 
judgeship. 

117 He agrees that the 43 percent number doesn't match what 
has been read off regarding the history of blacks in 
Harris County. 

118 It would be his guess that black candidates within the 
Democratic party tend to do better in black areas, but 
he doesn't know that's invariably true. One race in 
which he did study the precinct-by-precinct break down 
was when Carnegie Mims ran against Frank Briscoe and 
Michol O'Connor. His recollection is that Carnegie did 
not win the black precincts against Briscoe. 

119 He thinks Briscoe won the black precincts against 
Carnegie. What that taught him was that in a judicial 
race, the best thing you can have is a familiar name. 
Briscoe not only ran for Mayor, but was a district 
attorney, he had high visibility. Regarding if he 
feels that blacks in Harris County tend to vote for 
blacks, he says the easy answer would be to say yes. 

 



  

120 His common sense answer would be to say yes, but he has 
not done the studies to strongly commit to that. With 
his retention system, he believes that the community 
will be heard and that they will choose who they think 
the best judge is. It may or may not be people that 
are the same race. 

121 He would suspect that a commission of a predominantly 
black area that would send all white nominations on 
several occasions would meet with some discontent. His 
personal view is that they should not legally set up 
precise quota systems. He feels his system would go a 
long way towards getting a broader representation. He 
would expect that black panels would select the names 
of black candidates and hispanic panels would nominate 
hispanics. In his view, that would be an improvement 
over the present system. 

122 He has stated in public speeches that he feels the 
present system has to change. He feels that any change 
should have as one of its goals to increase the 
opportunities for minorities. He has studied the 
system in Louisiana and feels that opportunities for 
minorities have broadened. 

123 It's his position that the retention system will 
increase the opportunities to serve the bench. It's 
his position that the present system is untenable. In 
the present system, Republicans are a significant 
minority. It is that way in all of the benches held, 
starting from the Supreme Court on down. 

124 The system he would propose would eliminate party 
labels. If it kept party labels, he is not sure it 
would increase Republicans. Republicans would lose 
ground in Dallas County, stay about the same in Harris 
County, and gain in Travis County. He would hope that 
any system would get rid of party labels for judges. 
Only eight states have party labels for judges. In 
almost all the other states, they're in a one party 
judicial system, where everybody is a Democrat. Two 
party systems don't work for judicial races. He has 
served on the Judicial Districts Board since he became 
Chief Justice in 1988. 

125 The Judicial Districts Board is virtually identical 
composition with the administrative judges, presiding 
judges, when they meet in various convocations. He 
believes they have met two times since 1988. The 
presiding judge of the Court of Criminal Appeals, 
Michael McCormick, an Anglo, is also on the Board. 

 



There are also the nine administrative judges on the 
Judicial Districts Board. Leonard Davis 1s also on the 

Board. All of the members of the Board are white 

males. 

Leonard Davis is from Tyler and he is the public member 
of the Board. Davis is Anglo. The Board has met maybe 
two or three times. He would not say that they have 
received any testimony. 

His understanding is that they have to reapportion the 
judicial districts by 1993, if the Legislature does not 
do so. To be consistent with the Constitutional 
Amendments, it must reapportion the districts, but not 
make any of them smaller than a county, unless there is 
a referendum. They have come up with no preliminary 
plans as to reapportionment efforts. They submitted a 
reapportionment plan to the Legislature last session, 
but nothing happened to it. 

Phillips has been on the Board since 1988. It was the 
decision of the Board not to submit anything to the 
Legislature at this time because they are coming up to 
a census very quickly, and it seemed disruptive to try 
to re-district judgeships for one term or one-half 
term. There may have been some minor changes in 
boundaries drawn in while it was submitted to the 
Legislature. 

The goals in mind were largely to make sure that every 
judge sat within one administrative region rather than 
some judges having to report to two administrative 
judges. There may have been some shifting of judges. 
Judge Judice is head of the Office of Court 
Administration. 

They decided not to propose anything to the Legislature 
this session. They have not taken the position one way 
or the other regarding re-districting judicial 
districts boards for this session of the Legislature. 

It would be outside the duties of the Board to 
recommend a change in the election of the Board 
Members. The Board can add counties within a district 
and make a larger district, they can take out portions 
of counties, but the district must be no smaller than a 
county. You must be elected from that district. 
Phillips' proposal to the Legislature is that the whole 
system of partisan open-elections does not best serve 
the people.  



  

133 If no changes are made by 1993, the Board will submit 
Jjudicialy districts which it thinks would be an 
improvement and will carry out its. Constitutional 
duties. In his speech of February 1989, he said that 
the status quo in judicial elections is not an option. 

134 In his speech, he discussed multiple voting which he 
rejected, sub-districts which he rejected and retention 
election which he proposes. His guess is that they 
will not have election laws in 1993 which are identical 
to what is the present case regarding judges. If the 
laws are the same, the Board will present their plan 
under those laws. He hopes that by 1993, there will be 
no partisan labels. 

135 He would think that by 1993, Texas would be even more 
isolated if it continues under the current system, and 
there could be a federal court order that would change 
the system of districts within the county, or there 
might be a Legislative change. If a Constitutional 
Amendment would be enacted, it would have to be through 
a special session or in 1991 or 1993. 

136 He would think a federal judge could order the Governor 
to call a special session, or the Governor might just 
call one himself. The essence of his speech was to say 
to the Legislature that they had an option, either you 
change the system or a federal judge will do it for 
you. 

137 As to what a federal judge would do and when the judge 
would do it, whether or not the case would be stayed, 
he could not begin to predict. The Board has not come 
up with any recommendations. The Board has met two or 
three times. 

138 The Board probably met with some people about the 
lawsuit in background sessions, seeing as they were all 
named defendants in the lawsuit. In the second meeting 
with the Board, he discussed with them what he would 
say in his State of the Judiciary message. He doesn't 
believe the Board has ever met separate and apart from 
the normal meetings. He has called a meeting of the 
Board, but it has always been for informational status. 

139 It's his position, the current system is untenable and 
the status quo should not be maintained. He has 
probably not stated all of his reasons for feeling the 
system is untenable, but picked out two, which were 
money and partisanship. The campaign takes a lot of 

15 

 



RS 7 

* ; ® i 

. » 

  

time from official duties and there's no one else to 

perform the duties. 

140 There is less benefit to the judge from campaigning 
than there is other public officials because there is 
nobody else that can do the work. When a judge is off 
the bench, the system does not work. The time a judge 
spends away from the bench is not good for the system. 
It forces judges to be thinking about their campaigns. 

141 Partisanship is bad because it compromises the 
citizen's view of the judge's absolute impartiality. 
Partisanship has lead to many sweeps in Judicial 
elections outside of Harris County. The average tenure 
of service on the present Supreme Court is three years. 

142 The average judge in Texas is now serving five and a 
half years. That's due somewhat to salary being 
essentially frozen throughout this decade. It may also 
be due to the last two Governors being willing to 
appoint younger people. The lowering of average 
service has been due to a large number of incumbent 
judges who have been defeated, in Phillips' opinion, 
without much regard to the quality of their candidacy. 
Much of that can be explained by party labels and the 
tendency to vote straight party ticket. 

143 The majority of people who vote in judicial elections. 
apparently pull a straight lever ballot. Many people 
are simply voting all Democrat or all Republican. 

144 In the last judicial election in Tarrant County, one 
party won a clean sweep. One has to wonder if 
qualifications come to bear. 

145 No state that has ever adopted the retention election 
system has abandoned it. States with appointed judges, 
like Virginia, have very active citizens groups, want 
to move to the retention election system. Phillips 
believes it is « “the wave of the future. 
Constitutionally, the Judicial Districts Board is not 
authorized to submit to the electorate a plan for 
election of reapportionment of judges by 
smaller-than-county districts. 

146 That can not be done unless it is submitted as a 
proposition. The smallest district must be a county. 
He believes the arguments are very weak for maintaining 
the present system. 

 



  

147 In his opinion, there is no compelling interest for 
leaving the system as it currently stands. The only 
possible reason he could figure for leaving Harris 
County as it presently is, is that the more judges 
people have to vote on, the more a rational argument 
could be made for maintaining party labels. 

148 He repeats the larger the county, the more judges 
people have to vote on, the more you can make a 
rational argument that there should be some party 
labels. That is because that would give each candidate 
a certain basis of votes and they could campaign after 
the swing votes. Otherwise, you've got an electorate 
of a million people and simply names on a ballot. 

149 Dallas has had several sweeps or near sweeps in the 
1980's. 

150 He views sweeps as being bad, but considers county-wide 
elections in Harris County to be bad because of the 
expense of running. In Harris County, if you sign with 
a particular party, you can assume you have a certain 
base of votes already. 

151 He believes that in Harris County, fifteen to twenty 
percent of the vote is swing vote. 

152 Fifteen to twenty percent of the people will vote for 
candidates of different political parties, while others 
tend to vote a straight ticket. 

153 He does not think the same situation applies to 
minorities and people voting for blacks or whites. He 
has not studied the returns sufficiently in races where 
blacks run against whites to make any generalizations. 
He does not think that whites are a cohesive voting 
group, but admits that blacks have been in recent 
years. Ken Hoyt was black and he only got four percent 
of the black vote. In Phillips' personal view, not 
backed up by scientific study, there is not racial 
polarization like there is party polarization in a 
judicial race. 

154 Hoyt put his picture on handouts, signs and poster 
boards in the black sections of town. Hoyt sent out 
information telling people they could vote straight 
Democratic ticket and still vote for Hoyt, but only one 
out of one hundred people took that advice. 

155 He has talked to Renea Hicks regarding racial 
polarization or racial block voting. 

 



  

156 He has not talked to anyone else regarding racial 
statistics. 

157 He has not consulted with any expert witnesses 
regarding the data for this case. 

158 He cannot give any compelling reasons for maintaining 
the present system. He only went to the Department of 
Justice one time and has not heard back from them. 
Phillips has now supplied everything he has in response 
to Request 3, but has no documents responsive to 
Request 4. 

150 At one time, he had documents supporting footnote 28 of 
his speech, but he no longer has that. 

160 He does not know the number of blacks in the current 
Texas judiciary. The clippings he has provided are 
from a clipping service he used in his campaign. These 
are clippings which reference any statement he has made 
regarding judicial selection. 

161 He has supported the retention system since 1981. He 
testified at the Legislature in 1983. Article 5, 
Section 7 of the Constitution was changed. 

162 He knew about Senator Washington's bill because he saw 
a copy of it. He noticed that by Senator Washington's 
bill, Phillips would have been running for the 280th 
District Judgeship from a predominantly black and 
hispanic area. 

163 He feels there is a lot wrong with judges being elected 
from sub-districts. If he is elected to be judge over 
all of Harris County, but is only selected from a 
portion of the county and responsible to those voters, 
he thinks it is a problem. 

164 Phillips does not want a judge to be as 

district-oriented as a congressman. 

165 He does not believe he could be elected from Galena 
Park running as a Republican. He doesn't know if he 
could be elected from Galena Park running as a white 
person. It would depend on who his opponent is. He 
doesn't necessarily accept the assumption that a black 
will always vote for a black and that if he was a white 
running against a black in a black area, he would lose. 

166 He does not believe the assumption that blacks will 
always vote for blacks in judicial elections. He only 

 



. 

é ’ 

A : NS 

  

knows of two races, Hoyt and O'Connor, Mims and 
Briscoe, and knows the figures on those races. 

167 He doesn't know if those two races are the rule, an 
exception to the rule or whether there is a rule. 

EXAMINATION BY CLOUTMAN: 
  

168 Phillips has done no analysis with respect to the 
present system and its operation in Dallas County. He 
does not know what the success or lack of success of 
black or hispanic candidates has been in Dallas County. 

169 He does not remember the names of the people in the 
voting sections for the Department of Justice who he 
spoke with in 1989. He thinks one was a black man 
named Gerald Jones and also a white woman named Sandra 
Coleman. They wanted to know if any other state had 
tried to pre-clear merit selection and the answer was 
no. 

170 They also wanted to know any suggestions as to steps 
they could take to better assure they would get a 
favorable review. They knew they would get no informal 
agreements or that the Department would express an 
opinion one way or the other. The main thing they said 
was that some black or hispanic participation should be 
demonstrated. It was suggested that minority 
involvement would have a favorable impact on Section 5 
pre-clearance. They did not seek advice as to whether 
the system might meet the Section 2 requirements. 

171 They received no written correspondence from any 
representative of the voting sections of the Department 
of Justice before the visit. Phillips has not 
corresponded with anybody from the Department of 
Justice regarding merit selection. He has done no 
analysis as to what the effect or potential effect of a 
merit selection retention election system might have on 
black or hispanic voters in Dallas County. 

172 He believes that if sub-district panels were comprised 
of blacks or hispanics in Dallas County, that they 
would recommend persons of their ethnicity or race for 
appointment to judgeships. He knows of no detailed 
studies as to how incumbents fair in retention election 
systems. It depends upon the states and its own 
characteristics. He is aware of no allegations that 
there has been a racial bias in retention elections. 

 



He doesn't know if the findings of White v. Register 
and Lipscomb v. Wise applies to judicial elections. A 
helpful study would be to look at the unopposed votes 
when minority candidates are unopposed in their primary 
or in the general election. 

  

  

It's unproven, but he would assume that since he has 
never heard any other state suggest that race or 
ethnicity played a part in the retention elections, he 
would expect the same would be found in Texas. He 
believes a retention election system in Dallas County 
would have less racial polarization than the present 
system, based upon the history of the retention system 
in other states. 

About half of the states have retention elections on 
judges. He does not know the history of the other 
states in non-judicial races as to whether there has 
been either an adjudication or a common knowledge of 
racially discriminated voting. 

A retention election should focus on the 
characteristics of the judge. He thinks the only thing 
people would talk about publically would be the judge's 

performance. 

He disagrees with the idea that in a retention election 
system, the campaign would be developed upon the theme 
of getting rid of the minority. He cannot imagine 
somebody making a public appeal based upon the race of 

the judge. 

He agrees that in a retention election, that anything 
might happen. 

Phillips would depend upon good faith and hopefully the 
good sense of the voter to not have the election come 
down to race. He does not know the history of Dallas 
County well enough to know if any black judges first 
took office by election. Carolyn White was appointed 
by Governor Clements. 

He does not know if any of the black district judges in 
Dallas County who were incumbent have been spared an 
uncontested race since their appointment. 

He is aware that the movement of the Dallas district 
bench to move either to the court of appeals or to the 
federal bench. Some others have resigned and some have 
been defeated. Many Anglos, such as Fish, Fitzwater,  



3 * 1 

  

Maloney, King, Hecht, Bernett, Howel and Story have 
gone on to other judicial posts. 

182 He 1is not positive that Story went on to another 
judicial post. He doesn't think that a non-partisan 
single-member or at least a smaller-than-county 
district selection system is better. 

183 He thinks that a system where the smaller-than-county 
district elections would take place would have more 
minorities being elected. He has problems with 
judicial candidates running from a. portion of the 
county, but serving the entire county. Judges elected 
from less than a county, but serving that primary 
jurisdiction over the entire county is not an elected 
judiciary. 

184 Phillips would never say that Judges elected under the 
current system or under a merit system or by pure 
appointment are not fair or impartial. 

185 Phillips is worried about the public's perception of 
the judicial process and that they have a stake in it. 
Phillips is concerned about the pressures put on the 
Judge. He is concerned about cases of a highly-charged 
political nature. Such small district elections 
further politicizes the system and his goal is to make 
it less political. His fundamental objection is simply 
that the society feels that the position of judge 
should be voted on by all the voters and he thinks that 
all of the voters that are within the judge's 
jurisdiction should have a say in who that judge is. 

186 The merit system is the only system that insures that 
every judge will be passed on by every voter who votes, 
that lives in the judge's primary area of jurisdiction. 
Under the current system, voters only get to have a say 
if someone happens to run against the incumbent. Under 
the system proposed by Plaintiffs, the voters might or 
might not have an opposed election and, therefore, 
might or might not have a say as to who will be judge. 
But the voters clearly wouldn't have a say at any time 
on who the majority of the judges were that affected 
their lives. 

187 He is convinced that he has satisfied both the intent 
of the Voting Rights Act to at least preclude devices 
that diminish or minimize the voting strength of black 
or hispanic voters. He does not have a position as to 
if the current system violates the Voting Rights Act. 
He thinks any change which is enacted should seek to 

OY TD 

 



* .. & 

  

enhance minority representation and not leave it either 
as it is now or make it harder for minorities to serve 
as judges. 

188 He feels that if the State goes to sub-district judges, 
he would hope the Legislature would allow for a 
permissive strike clause that lawyers could exercise 
against sitting judges. He doesn't think it would cure 
the problem because if you made a decision to pass on a 
judge, you would go to another judge that you probably 
didn't vote on either. To his knowledge, trial judges 
are the only elected officials against whom the voting 
right challenges have been brought. 

189 He would not have the same fundamental objection if 
they had judges exercising jurisdiction over smaller 
than full county areas, such as J.P.'s now exercise 
over an eighth or a fourth of a county. 

130 His chief objection to the Plaintiffs’ plan is that 
they would take a single officer and have them no 
longer selected by all of the electorate they are 
responsible to, or have responsibility over. Pressures 
and increased politicalization is something he would 
hope would not happen, but it is a subsidiary objection 
to his main objection. To his knowledge, no state has 
voluntarily elected judges from less than the whole 
area over which they exercise primary jurisdiction, 

except Texas. 

191 Mississippi recently settled its suit and went into a 
sub-district method. It's hard to have any concrete 
proof as to how such a system might work and what its 
strengths and weaknesses might be. He has no factual 
objections as to the Plaintiffs' system, but has some 
fears. Phillips' race for the Supreme Court was the 
first contested race he has ever had. 

192 He has done no precinct or vote return analysis for any 
area except Harris County. 

EXAMINATION BY FINKLESTEIN: 
  

193 Exhibit E-2 was prepared at his request by the Office 
Of Court Administration of the State of Texas and 
Phillips read it over carefully. A few errors were 
found and he had those corrected. Some of the Court 
Administration's records did not go back to the older 

races. 

- 023 - 

 



: » 

  

194 The Exhibit «does: not list any judges by race or 
ethnicity. He knows of no errors in the district 
judges. 

185 The Exhibit lists all of the presently sitting judges 
in Texas. He thinks it would be good for the State of 
Texas to have more minority participation in the 
judiciary for the primary reason of role models. The 
system is better received and more acceptable to the 
people if it is broadly representative of the different 
kinds of people in the society. He does not know when 
the first hispanic became licensed to practice in the 
State of Texas. 

157 They have only had an organized, integrated bar since 
1839. He is sure there were practicing hispanic 
lawyers in the Republic of Texas. ' While a district 
judge in Houston, he heard cases where at least one of 
the parties was from out of the county. 

198 His distinction of that with the small district 
elections is that in the present case, the people whose 
cases he heard were there either because they wanted to 
be there, like a defendant who chose to be there, or a 
defendant that got sued and did not try to change 
venue, or they had done something in Harris County. 

199 When he ran for Supreme Court Justice, he campaigned in 
eighty-three counties, which pretty much covered the 
State. He spent an additional portion of time in areas 
where it seemed there would be more press coverage. 
When he was campaigning across the State, he had 
advisors who helped him to plan his strategy. 

200 Decisions of where to go were based on large 
populations and media coverage. The more the area was 
Democratic, for him, made it less likely he would go 

there because they were more likely to vote against 

him. It's best to leave the race alone if you are in 

an area where you are not going to get many votes. 

201 He spent a lot of the time in the Valley. Time is not 

as important as media buys. 

202 He campaigned in Harris County, Dallas County, Bexar 

County, Jefferson County, Lubbock County, Galveston 

County, McLennan County, Smith County, Ector County, 

Midland County and the El Paso three-county area. He 

did not campaign in Fort Bend County because an 

emergency came up, but he did have heavy media 

coverage. When they went to campaign, they were 

li DW 

 



  

basically trying to get people interested in the 
campaign and energized about it. 

203 He was interested in getting the media to turn out. If 
the Judicial District Board had to make a proposal to 
the Legislature, it would take a look at population, 
case load, travel size of the district, and try to 
correct such inequities as exist in the current lines, 
whatever those current lines are in 1993. He has no 
idea as of this time what those improvements might be. 

204 Earlier this: vear, he spoke to the Joint Select 
Committee on the Judiciary. At that time, he said, "We 
do know that the election system in some counties has 
been very harsh on racial minorities." He thinks he 
had Harris’ and Dallas Counties in. mind. His 
non-scientific observation is that minorities, once 
they are known in the community, tend to run very 
strongly. Andrew Jefferson, Felix Salazar always run 
strongly. He thinks Carolyn Wright ran very strongly 
in her last race. Lupe Salinas lost two races and he 
thinks Salazar lost his first race when he was opposed. 
Once they are known, they have some distinctive 
characteristics that make them run even stronger, but 
the initial hurdle of getting there is very difficult. 
Election from a smaller geographic area could be less 
expensive, but if for whatever reason a person needs to 
go to the media route, it would not be. 

206 He was shocked to see that people in the last Dallas 
County races spent as much money in the district races 
as they did in the at-large seats for the Dallas City 
Council. As a general rule, he thinks judicial races 
should be cheaper. Judicial ballots are often in the 
middle or bottom of the ballot. He admits that by the 
time voters get that far down, they often don't have a 
clue about who they are voting for. 

207 As a general rule, he had agreed that the further down 
on the ballot, the more factors other than 
qualifications become more important. When he ran for 
Supreme Court Justice, he had tried to reach as many 
people and as many different kinds or groups as he 
could, but he made no extraordinary efforts to reach 
blacks or hispanics. He was not running a campaign by 
looking at blocks or interest groups or racial groups. 
Over half of his appearances were at fund raisers, 
which were broadly targeted as possible. The other 
groups he talked to were at places he thought the press 
would come to. He sought endorsements from any group 

-—an 

 



£) 
EY 

  

he could and was endorsed by the Houston Lawyers 
Association and the Houston Mexican-American Bar. 

EXAMINATION BY HICKS: 
  

209 He sees no necessarily vital reason to the State to 
keep the judicial election system the way it is. He 
used the word "compelling interest" earlier to refer to 
a necessarily vital reason. 

210 He did not use the term "compelling interest" in a 
technical/legal sense. Comparing the existing judicial 
system with one identical, except using sub-districts, 
he would prefer the current system. The change would 
still have partisan labels, open elections, lots of 
politics, but it would have additional harm of removing 
from the people the basic right to pass on the majority 
of judges who have such an effect over their lives 
There would be some gains to the changed system, such 
as maybe cheaper elections and more minority access, 
but in his opinion, it would not out-balance the losses 
associated with the change. 

211 If the comparison was between the present system and a 
sub-district system using non-partisan elections, that 
changed system would be closer to his ideal, but he 
would still favor the current system. The same reasons 
would apply. The loss of a district judge reporting to 
the entire area of primary jurisdiction is such a major 
change in administration of justice and such an 
important element that the State would be giving up. 
He would not be willing to trade it merely in order to 
get rid of political party labels and to have, perhaps, 
cheaper elections. 

212 In the state of his judiciary speech, he referred to 
two federal lawsuits challenging the electoral system 
for judges in Texas. He was referring to the present 
case and another case out of Brownsville. He warned 
the Legislature. They should be on the look out for 
those things because they could have a big impact on 
Texas. His personal view is that the lawsuits pose a 
very serious challenge to the current selection method. 
It has been the habit of Legislature sometimes to wait 
until the Courts rule, then react. He doesn't think 
it's the best Legislative policy to work 
"pro-actively". The obvious public dissatisfaction 
with the judiciary was shown in a poll done by the 
Austin American-Statesman. 

Op 

 



In bringing those suits before the Legislature, he is 
not commenting on the merits of the suits. His 
statement was relative to the effect. that in other 
states where these suits were being brought, they were 
being successfully won. In other states, the 
Plaintiffs have been successful and the Voting Rights 
Act does cover judges. He feels Texas should have an 
active role rather than a re-active role. 

Regarding the facts of this case, he only has the data 
which has been discussed in this deposition. In 
answering questions in this deposition regarding 
electoral contests, judicial politics as it relates to 
racial matters in Texas, he has not given comments with 
the standpoint of being an expert. He has not made a 
systematic study of any of these matters. 

EXAMINATION BY MCDONALD: 
  

215-216 If judges in Harris County were elected from 
sub-districts, he feels that more blacks would be 
elected. 

His problem with judges elected from sub-districts but 
representing an entire county is that people would 
perceive that they would no longer have any input in 
that system. They wouldn't being able to vote the 
judge out of office, they wouldn't have any say on 
voting the judge into office. The secondary problem 
has been a belief that campaign contributions have had 
an effect on the judicial system, and the smaller the 
district gets, the more there may be that kind of 
belief that a judge is swayed by the desires of the 
powerful people within their sub-district, or the 
majority within the sub-district. He would hope that a 
judge would perform his duties according to the 
Constitution, but it's a possibility of something that 
might arise, and the idea of world justice, a judge 
elected from .one part of town might give a 
substantially different type of trial than somebody 
elected from another part. 

Discussion regarding the federal judicial system and 
its design for diversity of jurisdiction because of the 
belief that persons in the home state would be favored. 
He 1s aware of literature which says that with the 
movement of people so rapidly from state to state, that 
perceived prejudice no longer exists. He would hope 
the same would apply within sub-districts within a 
county. He 1s not sure what the result of such =a 
sub-district system would be. He ‘has a fear of  



  

something which might be perceived and there might be 
enough instances of it to move to lower confidence in 
the judicial branch. 

219 He stands by his stance against multiple voting in that 
it would require all judges to run against each other 
in a single at-large election, which for him, would be 
wholly unacceptable. Every judge would always be the 
political opponent of every other judge or would-be 
judge. He feels the efficiency of the judicial process 
would almost surely be eroded. He admits that system 
would solve the problem of appearance of partiality of 
a sub-district within a county. 

220 All of the judges who were appointed who have not yet 
run, were appointed by a Republican Governor because a 
Republic Governor is presently sitting. One complaint 
he has about the present system is that it is fraught 
with politics and judges should not be politicians, 
they don't have a constituency. 

221 Of twenty-one people appointed to the Court of Criminal 
Appeals, twenty have run as Republican and one has not 
yet declared a party. 

222 At the district court level ten have been appointed 
since the last election, and none have declared their 
party affiliation at this point, For purposes of 
Exhibit 4, they have been aggregated as Republicans, 
but some might run as Democrats. They were appointed 
by a Republican Governor. 

223 He is not for a retention election system if, rather 
than having an open ballot race, you have every judge 
run against their record with the current system. But 
the retention election system has a nominating 
commission and he is not sure that .all of the 
nominating commissions would give the Governor an 
option to appoint somebody that is clearly identified 
as being with his or her party. Under the sub-district 
nominating proposals, there would be panels that would 
be constituted as such as they will send names to the 
Governor who are either all Democrats or all 
Republicans or hopefully, but people who can't be 
identified clearly as being with one party or the 
other. He thinks the retention election system, 
especially if the panels come from sub-districts, would 
eliminate a situation where a Republican Governor 
appoints all Republicans and a Democratic Governor 
appoints all Democrats. 

- 38 

 



§ z » 

  

$ 

224 Phillips has never endorsed the Texas Committee on 
Merit Election Plan, nor would he endorse Senator 
Kapperton's, Representative Smith's and Representative 
Gibson's plans as was introduced in this session of the 
Legislature. He never endorsed the plan because (1) it 
would not increase minority judges; and (2) it would 
not meet with the Justice Department's approval without 
any doubt. 

225 Phillips began endorsing the sub-district nominating 
committees after he talked with people in Louisiana. 
It was after Chisom was decided. His own thinking is 
that merely going to county-wide retention panels would 
increase the amount of minority judges, but not as much 
as going to sub-district panels. 

i 

226 He repeats that he favors the current system as opposed 
to sub-districts | with non-partisan elections or 
sub-districts with partisan elections. 

227% He repeats that he [feels the Legislature needs to act 
on judicial reform jand appoint a special committee to 
Work on it. 

  
228 He is only aware of the terminology of "compelling 

state interest” in the context of hightened scrutiny in 
equal protection. Discussion regarding a question as 
to whether the present system requires a review using a 
higher scrutiny standard to justify its existence. 

229 "Compelling" has a legal nomenclature and a legal 
background through |equal protection litigation, which 
in Texas has been; adopted for its equal protection 
clause. He is answering that in a lay term. He is not 
aware of that term in voting rights litigation. 

FT) 

230 When he said that the present system is harsh on 
minorities in Harris and Dallas Counties, he does not 
know if that would apply to the entire State. He 
doesn't know enough to say that. He knows of Harris 
County. He thinks the current system has impediments. 
He basically had Harris County in mind when he said 
that, because that's where he's seen candidates running 
from fairly low budget campaigns to a two and a half 
million person ccunty. 

be 
231 He doesn't know if that statement would be true to the 

other counties involved in this lawsuit. He is not 
making a statement! as to the merits of whether the 
current system is illegal or not. 

$ } 

[END OF DEPOSITION SUMMARY] 

6GKMdj:klr | | 
08/03/89