Appellants Presiding Judges' Response to Motion to Certify State Law Question or to Disqualify Counsel

    MAILING ADDRESS: GRAVES, DOUGHERTY, HEARON & MOODY IRELAND GRAVES (1885-1969) 

POST OFFICE BOX 98 2300 NCNB TOWER BEN F. VAUGHAN, II, PC 

AUSTIN, TEXAS 78767 515 CONGRESS AVENUE OF COUNSEL 

MARGARET H. TAYLOR AUSTIN, TEXAS 7870) TELEPHONE: 

(512) 480-5725 
(512) 480-5600 

TELECOPY NUMBER: 

(512) 478-1976 

February 27, 1990 

VIA EXPRESS es and 
FEDERAL EXPRESS 
  

  

Mr. Gilbert F. Ganucheau, Clerk 

ourt of Appeals, Fifth Circuit 
600 Camp Street, Room 102 

rleans, Louisiana 70130-3479 

Re: LULAC v. William P. Clements, et al.; 

Case No. 90-8014 

Appeal from the United States District Court For The 

Western District of Texas, Midland-Odessa Division 

  

Dear Mr. Ganucheau: 

Enclosed is an original and three copies of Appellants 

Presiding Judges' Response to Motion to Certify State Law Question 

or, Alternatively, to Disqualify Counsel for filing in the above- 

referenced cause of action. Copies of this document have been sent 

to all counsel of record via United States Mail. 

Please file mark the enclosed extra copy and return to me for 

our files. Thank you for your assistance in this matter. 

Sincerely, 

GRAVES), DOUGHERTY, HEARO 

ay: IA 
andl 4 Taylor => 
  

MHT:k1j 
Enclosures  



  

Mr. Gilbert F. Ganucheau 
February 27, 1990 
Page Two 

CC: John L. Hill, Jr. 
Andy Taylor 
Liddell, Sapp, Zively, Hill & LaBoon 
3300 Texas Commerce Tower 

Houston, Texas 77002 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General's Office 
P. O. Box 12548 
Austin, Texas 78711 

William L. Garrett 
Brenda Hull Thompson 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Rolando L. Rios 
Attorney at Law 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

J. Eugene Clements 
Evelyn V. Keyes 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10 
Suite 905 
San Antonio, Texas 78230 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

 



  

y Mr. Gilbert F. Ganucheau 
February 14, 1990 
Page Three 

Cos Robert H. Mow, Jr. 

David Godbey 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

Mark H. Dettman 
County Attorney 
P. O. Box 2559 

200 West Wall 
Midland County Courthouse, 2nd Floor 
Midland, Texas 79702 
(915) 688-1084 

Ken Oden 
Travis County Attorney 
P. O. Box 1748 

Austin, Texas 78767 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 

711 Navarro, 6th Floor 
San Antonio, Texas 78205 

Tom Rugg 
Assistant District Attorney 
Jefferson County Courthouse 
Beaumont, Texas 77701 

Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm 
Dallas, Texas 75226-9222 

E. Brice Cunningham 
Attorney at Law 
777 S.R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

 



  

Mr. Gilbert F. Ganucheau 
February 14, 1990 
Page Four 

cos 7 Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational Fund, Inc. 

99 Hudson Street, 16th Floor 
New York, New York 10013 

Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

Mr. Gerald H. Goldstein 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Building 
San Antonio, Texas 78205 

Mr. Joel H. Pullen 
Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. Michael Ramsey 
Ramsey & Tyson 
2120 Welch 
Houston, Texas 77019 

Mr. Daniel J. Popeo 
Mr. Paul D. Kamenar 

Mr. Alan M. Slobodin 
1705 N. Street, N.W. 

Washington, D.C. 20036 

Mr. Paul Strohl 
Attorney at Law 
100 Founders Square 
900 Jackson Street 
Dallas, Texas 75202 

Mr. Daniel M. Ogden 
Attorney at Law 
900 Chateau Plaza 
2515 McKinney Avenue 
Dallas, Texas 75201 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

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

Plaintiffs-Appellees, 

V. NO. 90-8014 

JIM MATTOX, et al., 

D
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Defendants-Appellants. 

APPELLANTS PRESIDING JUDGES' RESPONSE TO MOTION TO CERTIFY 

STATE LAW QUESTION OR, ALTERNATIVELY, TO DISQUALIFY COUNSEL 
  

COMES NOW The Honorable Ron Chapman, The Honorable Thomas J. 

Stovall, Jr., The Honorable B. B. Schraub, The Honorable John 

Cornyn III, The Honorable Darrell Hester, The Honorable Sam M. 

Paxson, The Honorable Weldon Kirk, and The Honorable Jeff Walker, 

("Presiding Judges"), Presiding Judges of Administrative Judicial 

Regions, Members of the Judicial Districts Board, and Appellants 

herein and file this, their Response to the Attorney General's 

Motion to Certify State Law Question or, Alternatively, to 

Disqualify Counsel, and would show the Court as follows: 

1. Article 5, § 3-c(a) of the Texas Constitution vests the 

Texas Supreme Court with jurisdiction to answer questions of state 

law: 

(a) The supreme court and the court of criminal appeals 

have jurisdiction to answer questions of state law 

certified from a federal appellate court. 

Tex. Const. art. 5,'§S 3-c{a). Pursuant to subsection (b), the 

Texas Supreme Court promulgated Rule 114 of the Texas Rules of 

 



  

Appellate Procedure, which sets forth the procedure by which a 

review of those questions shall occur. Tex. Const. art. 5, § 3- 

c(b). Rule 114(a) provides, in pertinent part: 

(a) The Supreme Court of Texas may answer questions of 

law certified to it by the Supreme Court of the 

United States or a Court of Appeals of the United 

States when requested by the certifying court, if 

there are involved any proceedings before the 

certifying court questions of law of this state 

which may be determinative of the cause then pending 

Tex. R. App. P. 114 (a) (emphasis added). 

2. There is no controlling question of state law to be 

certified. The question of representation of the Presiding Judges 

clearly is not determinative of the cause now pending on appeal. 

This Court's Order granting the Presiding Judges Motion for Leave 

to File a Brief through Independent Counsel is a procedural order 

that simply does not implicate the substantive issues raised in 

this appeal. Cf. Lucas v. United States, 757 S.W.2d 687 (Tex. 
  

1988) (controlling issue of state law present). 

3. In addition, this Court's Order granting the Presiding 

Judges Leave to File a Brief through Independent Counsel is not 

governed by state law. There can be no question that this Court 

has the authority tc determine what counsel appears before it. See 

Fed. R. App. P. 46. Pursuant to this authority, this Court has the 

power to take note of a conflict of interest raised by the Attorney 

General's representation of the Presiding Judges. This Court also 

clearly has the authority to grant a request by a named appellant 

to appear through designated counsel. The Presiding Judges Motion 

 



  

for Leave to File a Brief through Independent Counsel was a 

procedural motion committed to the discretion of this Court, to be 

decided pursuant to the Federal Rules of Appellate Procedure and 

this Court's own rules. Accordingly, there is no question of state 

law to certify. 

4. At the same time that the Attorney General attempts to 

transform a federal procedural question into a controlling issue 

of state law, the Attorney General also states that some supposed 

uncertainty regarding an award of attorneys' fees to the prevailing 

party supports his request for certification. Motion to Certify 

at 3. An award of attorneys' fees to the prevailing party, 

however, is clearly governed by federal law. Even if this issue 

were properly raised at this juncture, the Attorney General fails 

to explain how the presence of any issues relating to this federal 

question support his argument for certification. 

In fact, the attorneys' fees argument raised by the Attorney 

General is a red herring because there is no uncertainty on the 

attorneys' fee question. First, the Attorney General assumes, 

without citation to any authority, that the independent 

representation of the Presiding Judges will necessarily increase 

an attorney's fees award. In a case where multiple briefs are 

filed by many appellants and amicus curiae, it is incorrect to 

state that a certain amount of attorneys' fees will automatically 

arise from the independent representation of the Presiding Judges. 

In fact, the award and allocation of attorneys’ fees is committed 

 



  

to the sound discretion of a federal district court, to be decided 

after the resolution of the merits. 

Second, the Presiding Judges are sued in their official 

capacity. Accordingly, there can be no question that under federal 

law the state, and not the Presiding Judges individually, is liable 

for any prevailing party attorneys' fees, because liability on the 

merits and responsibility for fees go hand in hand. Kentucky v. 
  

Graham, 473 U.S. 159, 165, 105 Sup.Ct. 3099, 3104, 87 L. Ed.2d 114 

(1985). The procedural order by this Court granting leave to file 

a brief through independent counsel in no way modifies or creates 

uncertainty about the substantive law regarding prevailing party 

attorneys' fees. 

Be The Presiding Judges' independent counsel should not be 

disqualified. As fully set out in the Presiding Judges' Motion for 

Leave to File Brief through Independent Counsel, Secretary of State 

Bayoud's Response to the Attorney General's Motion to Strike, and 

the Secretary of State's Response to the Attorney General's Motion 

to Certify, all incorporated herein, there is a serious conflict 

in interest created by the Attorney General's conduct in the course 

of this litigation. This conflict spurred the presiding judges to 

designate independent counsel to ensure that their views, as named 

defendants and appellants in this lawsuit, are fully and fairly 

aired in the context of a true adversarial proceeding. 

6. The Presiding Judges seek only to have their position 

vigorously argued in a proceeding that is not tainted by conflict 

of interest. It is clearly within the authority of this Court to 

 



  

. grant their Motion For Leave to File Brief through Independent 

Counsel. The Attorney General's effort to circumvent this Court's 

prior Order through a Motion to Certify that does not raise any 

controlling issue of the state law should be denied. 

Respectfully submitted, 

GRAVES, DOUGHERTY, HEARON & MOODY 

2300 NCNB Tower 

515 Congress Avenue 

Post Office Box 98 
Austin, Texas 78767 
(512) 480-5600 

ed 
R/ James Gegrge, ; 
skate Bar qo. 07810000 

Jonn M. Harmon 
State Bar No. 09020775 
Margaret H. Taylor 
State Bar No. 19712970 

  

INDEPENDENT COUNSEL FOR DEFENDANTS-APPELLANTS 

CERTIFICATE OF SERVICE 

By my signature below, I do hereby certify to the Court that 

two true and correct copies of this document and any attachments 

have been served on all counsel of record by United States Mail 

this nv day of February, 1990. 

Ft 

  

lz ets) 
K. i George, rd / v 

F:\jmharmon\10752.1\certify.mot 

 



GRAVES, DOUGHERTY, HEARON & MOODY 

2300 NCNB TOWER 

POST OFFICE BOX 98 

AUSTIN, TEXAS 78767 

Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational Fund 
inc. 

99 Hudson Street, 16th Floor 
New York, New York 10013 

Heohlishlihodbad band dlandin is oh 

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