Judge Wood's Opposition to "Joint Motion to Remand for Hearing on Effectuation of Settlement"

    PorRTER & CLEMENTS 
A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

ATTORNEYS AT LAW 
  MAILING ADDRESS: 

700 LOUISIANA, SUITE 3500 

9 P.O. BOX 4744 
EVELYN V. KEYES HOUSTON, TEXAS 77002-2730 

HOUSTON, TX 77210-4744 (713) 226-0620 
  

TELECOPIER (713) 228-1331 

TELEPHONE (713) 226-0600 

May 18, 1993 

Mr. Richard Windhorst, Clerk VIA FEDERAL EXPRESS 

United States Court of Appeals 

for the Fifth Circuit 

100 U.S. Court of Appeals Courthouse . > 

600 Camp Street ny ST —— 
New Orleans, Louisiana 70130 ; 

    

Re: No. 90-8014 and No.\90-9003; League of United Latin American Citizens, 

Council No. 4434, et ahk,_Plaintiffs-Respondents, v. William P. Clements, 

Governor of the State of Texas; etal, Defendants, Judge Sharol ood, etc., 

Defendant-Appellant; In the United States Court of Appeals Tor the Fifth Circuit 

Dear Mr. Windhorst: 

Enclosed is the original and twenty copies of Judge Wood’s Opposition to "Joint Motion 
to Remand for Hearing on Effectation of Settlement." 

Please verify filing of this document by placing your file mark in the margin of the extra 

copy provided herewith and return to me for my records. 

All parties are being served with copies of this document by first class United States 
mail, postage prepaid. 

Very truly yours, 

  

EVK:taw 

enclosures 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 

NO. 90-9003 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, et al.. 

Plaintiffs-Respondents, 

Versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 
OF TEXAS, et al., 

Defendants, 

JUDGE SHAROLYN WOOD, ETC., 

Detendant-Appellant. 

  

Appeal from the United States District Court 

for the Western District of Texas 

Midland Division 

  

JUDGE WOOD’S OPPOSITION TO 
"JOINT MOTION TO REMAND FOR HEARING 

ON EFFECTUATION OF SETTLEMENT" 

  

PORTER & CLEMENTS, L.L.P. 

J. Eugene Clements 

Evelyn V. Keyes 

700 Louisiana, Ste. 3500 

Houston, Texas 77002-2730 

(713) 226-0600 

ATTORNEYS FOR APPELLANT/INTERVENOR/ 
DEFENDANT JUDGE WOOD 

 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 

NO. 90-9003 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, et al., 

Plaintiffs-Respondents, 

Versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 
OF TEXAS, et al., 

Defendants, 

JUDGE SHAROLYN WOOD, ETC., 

Defendant-Appellant. 

  

Appeal from the United States District Court 

for the Western District of Texas 

Midland Division 

  

JUDGE WOOD’S OPPOSITION TO 
"JOINT MOTION TO REMAND FOR HEARING 

ON EFFECTUATION OF SETTLEMENT" 

  

TO THE HONORABLE UNITED STATES COURT OF APPEALS: 

Defendant-Intervenor Appellant Harris County District Judge Sharolyn Wood ("Judge 

Wood") files her Opposition to Purported "Joint Motion to Remand for Hearing on Effectuation 

of Settlement" to show the Court the following:  



ATTORNEY GENERAL MORALES HAS PROVOKED A CONSTITUTIONAL 
CRISIS BY PURPORTING TO "SETTLE" THIS CASE. 

I Attorney General Dan Morales has provoked a constitutional crisis by purporting 

to "settle" this critical litigation in conflict with directly applicable provisions of constitutional, 

statutory, and common law, in collusion with the Plaintiffs, and against the interests of Texas. 

Judge Wood does not welcome this crisis, but she does not shrink from it. Now that it is upon 

us, it must be addressed and resolved. That is the task of this Court, which by Attorney General 

Morales’s and the Plaintiffs’ "Joint Motion" is being invited to make itself a party to a political 

ploy by the executive branch of the Texas government and certain members of the legislative 

branch that would profoundly alter the checks and balances of state government, wrest 

constitutional powers from the Texas Legislature and the people, and repose them instead in 

partisan interest groups, self-interested state officials, and the federal courts. 

a Judge Wood has made known to the Court her opposition to every aspect of what 

Attorney General Morales is doing in purporting to "settle" this litigation and the threat she 

believes his actions pose to representative government, to the separation of powers doctrine, to 

numerous provisions of the United States Constitution, the Texas Constitution, and Texas law, 

and, finally, to the integrity of the office of the Attorney General, of the Texas Legislature and 

of the federal courts, all of which Attorney General Morales and the Plaintiffs seek to involve 

in their "settlement" activities. Judge Wood has argued, and she again argues, that Attorney 

General Morales, a named Defendant in this litigation, should be realigned as a plaintiff to 

reflect his true interests; that he should be disqualified as counsel for the State, whose interests 

he refuses to defend and is actively attempting to subvert; and that her own intervention and that  



  

of Judge Entz should be extended as necessary to permit them to make all necessary arguments 

in defense of the State from this point on. 

3. Judge Wood’s arguments are fully developed in (1) her "Motion to Realign the 

Parties and, If Necessary, to Modify Intervention of Defendant-Appellant Judge Sharolyn 

Wood," (2) her Brief in Support of Motion to Realign the Parties, (3) her Supplemental Letter 

Brief (filed April 2, 1993), (4) her Reply to Attorney General’s Response in Opposition to 

Motion to Realign and to Modify Interventions of Judges Entz and Wood, and (5) her Motion 

to Disqualify Attorney General Morales as Counsel for the State of Texas. Her arguments are 

supported by the exhibits attached to those filings. Judge Wood hereby incorporates both the 

foregoing filings and their exhibits by this reference. She would add only the following remarks 

specific to the Attorney General's and the Plaintiffs’ purported "Joint Motion." 

4. The "Joint Motion" which Texas Attorney General Morales and the Plaintiffs have 

filed in this case is not a true joint motion. It does not reflect the agreement of the 

Defendant/Intervenors, Judge Wood and Judge Entz. It does not reflect the agreement of any 

of the named State Defendants other than Attorney General Morales himself.! It is solely a 

collusive agreement reached between Attorney General Morales and the Plaintiffs to avoid 

litigation of the vital legal issues at stake in this important case and to illegally change Texas’ 

judicial election system. Judge Wood was not consulted about the purported Joint Motion. Her 

  

1 Governor Richards and the other Democratic officials, who signed the "Settlement 
Agreement," except for the Secretary of State, are not parties. The Governor is not a party 
because her predecessor, Governor Clements, was non-suited in January 1989, when he 
requested independent counsel. The Attorney General’s attempt to rename this case LULAC v. 
Richards, see Exhibit "B", is apparently designed to give credence to the Governor’s 
participation in this attempted "settlement," as are the appended signatures of other non-party 
Democratic officials. 

 



  

input was neither solicited nor permitted. Her interests as well as those of the State Defendants, 

Defendant/Intervenor Judge Entz, and the elected state district judges in the target counties, have 

been repudiated by Attorney General Morales, who has claimed throughout this litigation to 

represent her in her official capacity. And she does not consent to this attempt to skirt the law. 

II. ATTORNEY GENERAL AND THE PLAINTIFFS DID NOT SEEK THIS 
INTERLOCUTORY APPEAL AND THEY SHOULD NOT BE ALLOWED TO 
SCUTTLE IT. 

5. This is an interlocutory appeal under 28 U.S.C. § 1292(b) from the district court’s 

opinion of November 1989, finding a violation of the Voting Rights Act in the target counties. 

It 1s interlocutory because a Voting Rights Act case is not a final judgment until the court has 

imposed a remedy for a proved violation of the Act. This interlocutory appeal was taken from 

the merits of the finding of liability, not from the remedy. Such interlocutory appeals are 

extraordinary remedies granted only when the district judge himself is "of the opinion that such 

order involves a controlling question of law as to which there is substantial ground for difference 

of opinion and that an immediate appeal from the order may materially advance the ultimate 

termination of the litigation." 28 U.S.C. § 1292(b). 

6. In this case, the controlling question of law, as the Supreme Court itself has 

stated, is "whether a vote dilution violation may be found or remedied" when the result will be 

to force a state to restructure its judiciary to maximize minority voting rights instead of 

structuring it to meet state purposes of fairness, impartial justice, and efficiency. See Houston 

Lawyers Association v. Attorney General of Texas, 111 S. Ct. 2376, 2381 (1991). This is 

clearly an extremely important legal issue of constitutional dimensions, and the Supreme Court 

itself has enjoined upon this Court the duty of addressing it. 

 



  

7. The Texas Attorney General did not seek this interlocutory appeal—Judge Wood 

did, and Judge Entz joined her. Instead of joining Judge Wood in her petition for interlocutory 

appeal, the Texas Attorney General at that time, Jim Mattox, assisted by the same Assistant 

Attorneys General who have briefed and argued this case from the beginning, "settled" the case 

ex parte with the Plaintiffs and the trial court, without any oral hearing and without notice to 

Defendant-Intervenors Judges Wood and Entz. At the specific request of the Texas Attorney 

General and the Plaintiffs, Judge Bunton enjoined all district judge elections in the target 

counties on the last day for filing for the 1990 elections and imposed the "Interim Plan" devised 

by the Plaintiffs and the Texas Attorney General. That "Interim Plan" was essentially the same 

subdistricting proposal the Texas Attorney General and the Plaintiffs are again seeking to impose 

on Texas by way of "settlement." Judge Bunton changed nothing material in the Attorney 

General's and the Plaintiffs’ partisan sub-districting judicial election scheme except to make it 

non-partisan, causing them to appeal from the injunction on the last day for doing so and to seek 

a stay of his order. Judges Wood and Entz had already sought and obtained an emergency stay 

of Judge Bunton’s injunction and the imposition of his "Interim Plan," in addition to the 

interlocutory appeal. Attorney General Morales and the Plaintiffs are now seeking to have the 

stay lifted without any judicial determination of the critical legal issues posed by the 

interlocutory appeal so that the trial court can "effectuate" their purportedly new "settlement." 

8. The Attorney General did not seek the interlocutory appeal on the merits of J udge 

Bunton’s decision which Judges Wood and Entz obtained. He should not now be allowed to 

abort that appeal through a remand of this case to the very court from whose judgment the 

interlocutory appeal was granted and whose injunction has been stayed pending that appeal. 

 



  

9. If, indeed, this Court concludes (a) that Texas’ state district judge election system 

dilutes the votes of minorities in violation of the Voting Rights Act and (b) that such a statutory 

right can be remedied consistent with the United States Constitution, then it will be time to 

consider a remedy. At that point it will be appropriate for this Court to remand this case—not 

to allow the Plaintiffs and Attorney General Morales to impose their subdistricting scheme on 

Texas, as they hope. but to allow the Texas legislature time to pass the necessary legislation to 

bring Texas law into compliance with federal law. See Wise v. Lipscomb, 437 U.S. 535, 540, 

98 S. Ct. 2493, 2497 (1975). The idea that the Texas Attorney General, in collusion with 

private plaintiff interest groups, can hopscotch the law is repugnant to the core principles of 

democratic government. 

II. ATTORNEY GENERAL MORALES’S AND THE PLAINTIFFS’ "SETTLEMENT 
AGREEMENT" IS UNCONSTITUTIONAL. 

10. As with the original scheme to "settle" this case the new "Settlement Agreement" 

assigns district judges at the Plaintiffs’ and the Attorney General’s pleasure to justice of the 

peace precincts, commissioners’ districts, or legislative districts, which have already been 

gerrymandered on partisan lines, making state district judge benches tools of partisan political 

patronage. That patronage would be dispensed in some counties, including Harris and Dallas 

Counties, by state legislators whose own retirement plans are based on the salaries of the state 

district judges they would select. The "Settlement Agreement" also strips voters in the affected 

counties of their constitutional right to elect all trial judges with primary plenary jurisdiction 

over them. In Harris County, for example, voters would be allowed to elect only 11 of the 59 

judges who serve them as criminal, civil and family judges, and Attorney General Morales and 

the Plaintiffs would select which judges would be assigned to which districts and which type of 

 



  

bench each legislative district would be allowed to vote for. The "Settlement Agreement" 

insulates district judges within politically and racially crafted enclaves where they can never be 

voted out of office so long as they please the political concerns of their constituents, thus 

politicizing the judiciary on partisan and racial lines. 

II. For the reasons set forth above, the "Settlement Agreement" Attorney General 

Morales and the Plaintiffs would have this Court endorse and enforce violates the principle of 

equal protection of the law guaranteed by Article 1 § 3 of the Texas Constitution and in the 

Fourteenth Amendment to the United States Constitution; it violates the principle of due process 

of law guaranteed by Article 1 § 19 of the Texas Constitution and the Fourteenth Amendment 

of the United States Constitution; and it violates the principle of equal voting rights guaranteed 

by Article 1 § 19 of the Texas Constitution and the Fifteenth Amendment to the United States 

Constitution. 

12. The involvement of state legislators in controlling the judicial benches created by 

the "Settlement Agreement" also violates the separation of powers doctrine guaranteed by Article 

2 § 1 of the Texas Constitution and by the United States Constitution. And the attempt to 

involve the federal judiciary in "effectuating” such an illegal plan further violates that doctrine. 

13. In addition, the "Settlement Agreement" violates Article 5 §§ 7 and 7a of the 

Texas Constitution, which prohibit the creation of judicial subdistricts without the majority vote 

of the citizens of the affected counties.? 

  

* The trial court itself found that §§ 7 and 7a did not violate the Voting Rights Act and 
that, therefore, the Texas Constitution would have to be amended to replace Texas’ judicial 
election system. Memorandum Opinion of November 8, 1989, at 4. 

7 

 



14. And because the imposition of the "Settlement Agreement" on Texas as its law 

would be "effectuated" without the consent of the people and would deprive them of fundamental 

liberties guaranteed by their own Texas Constitution and by the United States Constitution, the 

"Settlement Agreement" violates both the Guaranty Clause, Article 4 § 4 of the United State 

Constitution, which guarantees to the people a republican form of government, and the Tenth 

Amendment to the United States Constitution, which guarantees to the people—and not to private 

partisan interest groups and self-interested state officials—the right to structure their own 

government. 

13. Attorney General Morales and the Plaintiffs are well aware of the Constitutional 

and other legal problems with their "Settlement Agreement," since they have been raised many 

times in filings in this litigation. It can only be assumed that in their arrogance of power they 

do not care to hear the voices of dissent. 

IV. "SETTLEMENT" OF THIS LAWSUIT WOULD PERPETUATE LITIGATION, 
NOT END IT. 

16. The Attorney General and the Plaintiffs who are parties to the "Joint Motion" 

claim that they "desire to effect a settlement of the issues raised by the complaint and subsequent 

proceedings without the necessity for further litigation." "Joint Motion" at { 1. By this they 

mean that they wish to avoid judicial resolution of the legal issues the Plaintiffs themselves have 

raised by bringing this suit and instead to surrender judgment and restructure the Texas judiciary 

through the federal courts’ enforcement of their "settlement" without any final judicial 

determination of any Section 2 violation.’ 

  

3 This surrender of judgment includes surrender of judgment on the merits so that the Plaintiffs may 
obtain their attorney’s fees under 42 U.S.C. § 1988. which awards attorneys’ tees to prevailing Section 

8  



  

[7. The legal issues on this interlocutory appeal of the greatest importance to this case 

and many others yet Attorney General Morales and the Plaintiffs would scuttle this appeal 

precisely because the legal issues are well-developed and will be resolved by this Court if they 

do not manage to abort these legal proceedings. Nor is this the only litigation that will be 

affected by this Court’s en banc decision, as both this Court and the "settling" parties are aware. 

18. When this Court scheduled oral argument in this case on remand from the 

Supreme Court in September 1991, it stayed proceedings in Rangel v. Attorney General and 

Secretary of State of Texas, No. 89-2868, in the Fifth Circuit Court of Appeals, pending final 

disposition of this interlocutory appeal. Rangel is a separate case brought by essentially the 

same plaintiff groups against the Thirteenth Court of Appeals in Corpus Christi. If this appeal 

is aborted the same issues will have to be decided in Rangel—unless, of course, that case too 

is "settled" without any judicial determination on the merits. Similarly, while this case has 

been awaiting en banc review, essentially the same plaintiff groups brought suit in the United 

States District Court in Laredo against other selected state appellate judges, specifically including 

those in Harris and Dallas Counties. LULAC v. State of Texas, Civil Action No. L-93-26. The 

plaintiffs have on many occasions stated their intent to bring suit one by one against all possible 

elected judges in Texas, targeting separate court levels and separate counties. 

19. The idea that litigation over Texas’ judicial benches can be brought to a halt by 

aborting the one case that has reached the point where the critical legal issues involved in 

  

2 plaintiffs. The Plaintiffs are even now improperly seeking their "prevailing plaintiffs" fees in the 
district court. See Plaintiffs’ Motion for Interim Attorney Fees, tiled March 11, 1993, in the United 
States District Court for the Western District of Texas, and attached as Exhibit 6 to J udge Wood’s Motion 
to Realign. 

* There are no intervenors in Rangel to protest the actions of the Texas Attorney General. 

9 

 



  

expanding the Voting Rights Act to cover the judiciary are fully developed and briefed for the 

en banc court is absurd. If these issues are not decided in this case, the floodgates will be open 

to piecemeal litigation and "settlement" of Section 2 cases involving all the benches in Texas. 

Attorney General Morales and the Plaintiffs know that, since they are parties to the cited 

litigation and to the threatened litigation. Therefore, their statement that they desire to avert 

further litigation is not credible except insofar as it references this specific litigation—which no 

one doubts they are eager to terminate. 

20. Moreover, the "settlement" Attorney General Morales and the Plaintiffs have 

crafted would itself engender years of litigation. The "Settlement Agreement" is illegal and 

unconstitutional for at least all of the reasons set out above; and the Attorney General’s and the 

Plaintiffs’ collusive attempt to use the Texas Legislature and the federal courts to replace Texas’ 

constitutional judicial election system with their own partisan political scheme is illegal and 

unconstitutional for all of the reasons set out in Judge Wood’s Motion to Disqualify at §{ 26-38. 

The whole "settlement" scheme therefore cannot serve the purpose of terminating litigation. 

IV. DEFENDANT/INTERVENOR JUDGE WOOD HAS A RIGHT TO CONTINUE 
THIS APPEAL REGARDLESS OF WHAT ATTORNEY GENERAL MORALES 
DOES. 

21. Attorney General Morales has attempted to surrender judgment to the Plaintiffs 

and to restructure the Texas judiciary as he and they agree. These activities profoundly affect 

Judge Wood, who is a sitting district judge and a voter in one of the affected counties. Each 

of the rights stripped from the people of Texas by this collusive "Settlement Agreement" is 

stripped from her personally. Each right or liberty that is violated is her right. And she does 

not consent. 

10 

 



  

22. Attorney General Morales and the Plaintiffs appear to think that they can 

collusively "settle" this suit and declare the legal issues moot, depriving Judge Wood of standing 

and leaving her no basis to continue this litigation. They are wrong. First, this Court has 

expressly determined that Judge Wood has standing to pursue this litigation. LULAC v. 

Clements, 923 F.2d 365, 367 n. 1 (5th Cir. 1991). Second, neither federal law nor Texas law 

permits the Texas Attorney General to ignore the law and the rights of non-consenting parties 

in settling a lawsuit. See Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984); Terrazas v. 

Ramirez, 829 S.W.2d 712 (Tex. 1991). Judge Wood has discussed Overton and Terrazas in her 

other filings, which are incorporated by reference, and she will not do so again here. However, 

she would also call the Court’s attention to its en banc decision in United States v. City of 

Miami, 664 F.2d 435 (1981). 

23. In City of Miami, a Title VII employment discrimination suit, the Court was asked 

to examine the circumstances under which a court could enter a consent decree in a multiparty 

suit in which some, but not all, of the litigants agreed to the decree. The Court was unable to 

reach a majority opinion. However, five judges concurred in an opinion written by Judge Rubin 

which concluded "that a decree disposing of some of the issues between some of the parties may 

be based on the consent of the parties who are affected by it but that, to the extent the decree 

affects other parties or other issues, its validity must be tested by the same standards that are 

applicable in any other adversary proceeding." Id. at 436. Those five judges concluded, 

A party potentially prejudiced by a decree has a right to a judicial 
determination of the merits of its objection. The party is prejudiced if the decree 
would alter its ... rights.... Those who seek affirmative remedial goals that 
would adversely affect other parties must demonstrate the propriety of such relief. 

Id. at 447. 

11 

 



  

24. In addition to the five judge opinion in City of Miami, eleven judges joined in an 

opinion concurring in part and dissenting in part. Those eleven judges observed, 

An appellant is before us complaining that it has had no day in court—has 
never been set for trial or had notice of a setting—but has been judged away. 
This error is so large and palpable that, like an elephant standing three inches 
form the viewer's eye, it is at first hard to recognize... 

And while it is well and very well to extol the virtues of concluding Title 
VII litigation by consent, as do our brethren—a sentiment in which we 
concur—we think it quite another to approve ramming a settlement between two 
consenting parties down the throat of a third and protesting one, leaving it bound 
without trial to an agreement to which it did not subscribe... 

We think it evident that what has been done below is to infringe the 
collective bargaining rights of the FOP and its members without either its consent 
or a trial, to subject it to a potential contempt order, and to enjoin it publicly 
from doing various reprehensible and illegal things that no one proved it had ever 
done or so much as thought of doing. 

It seems elementary that one made a party to a lawsuit is entitled to his 
day in court before permanent relief is granted against him over his protest. This 
the FOP has not had. 

Id. at 451-452. 

25. The "settlement" crafted by Attorney General Morales and the Plaintiffs 

profoundly prejudices Judge Wood by drastically altering her rights as they are bound up with 

Texas’ constitutional judicial election system, in which she is an elected official, and by altering 

those rights in a manner violative of law. It specifically denies her the due process which City 

of Miami guarantees to all litigants. Therefore, this case cannot be "settled" without Judge 

Wood's consent, nor can it be "settled" on the terms proposed by Attorney General Morales and 

the Plaintiffs. 

26. Attorney General Morales and the Plaintiffs palpably hope to persuade the Court 

that the concerns of the en banc court in City of Miami regarding non-consenting parties will be 

satisfied by the perfunctory hearing they intend to stage on their "Settlement Agreement" in the 

 



trial court. That is nonsense, since the deprivation of the right of Judges Wood and Entz to a 

hearing in the Western District of Texas is not what is at issue, and no such hearing can meet 

their objections to the "settlement" or restore to them the rights which this "settlement" strips 

from them. 

27. What is primarily at issue is the legal question posed by the Supreme Court, 

"whether a vote dilution violation may be found or remedied" in Texas state district judge 

elections. This is a legal issue of direct and profound importance to J udges Wood and Entz, the 

elected Texas judiciary, the people of Texas, many legal cases already pending in federal court 

and many which are threatened. Attorney General Morales and the Plaintiffs would deprive the 

non-consenting parties and the public of a judicial determination of that critical legal question. 

Nor is that all. 

28. The surrender of judgment crafted by Attorney General Morales and the Plaintiffs 

would radically restructure the Texas judiciary in the affected counties in violation of all the laws 

referenced above without any final judicial determination of any illegality in the system so 

peremptorily replaced. Judges Wood and Entz and the non-party sitting state district judges and 

voters in the nine Texas counties are profoundly affected by this surrender of judgment, to which 

they do not consent. The State of Texas, whom Attorney General Morales is supposed to 

defend, is likewise profoundly affected by the "settlement"; but the Attorney General has 

expressly and repeatedly refused to defend its interests, holding them "indefensible." 

29. By contrast, the consenting parties to the "settlement," Attorney General Morales 

and the Plaintiff interest groups, are not affected by the "settlement" at all, except insofar as the 

individual Plaintiffs are affected as voters only. The "Settlement Agreement” Attorney General  



Morales and the Plaintiffs plan to impose on Texas is, therefore, offensive to justice, since it 

deeply prejudices the non-consenting parties to this lawsuit and the public interest without 

affecting those who have crafted this "settlement" and "consent" to it. This Court has never 

allowed non-settling parties to a lawsuit of the greatest public importance to be deprived of a 

judicial determination of the merits of litigation that profoundly and prejudicially affects their 

personal rights. It should not do so now. 

30. Since City of Miami was decided, the United States Supreme Court has likewise 

held that a person’s rights may not be adjudicated away by consent decree in a proceeding to 

which he has not been made a party, like the district judges in Texas who have not intervened 

or whose intervention has been denied. Martin v. Wilks, 109 S.Ct. 2180, 2186 (1989). It has 

also held that a consent decree (or "settlement agreement") may not dispose of the rights of a 

party who, like Judges Wood and Entz, does not consent to it; nor may a consent decree (or 

"settlement") be unlawful. Local Number 93, Int’l Ass'n of Firefighter, AFL-CIO C.L.C., 478 

U.S. 501, 106 S.Ct. 3063, 3077-3079(1986). 

31. Ina case in much the same posture as this one, Firefighters v. Stotts, 467 U.S. 

561, 576 n.9, 104 S.Ct. 2576, 2586 n.9 (1984), the Supreme Court addressed the situation 

where settling defendants had obtained a favorable modification to a consent decree in a Title 

VII case over the objections of a non-settling defendant adversely affected by the modification 

and then attempted to walk away from the litigation. The Court stated, "Respondents cannot 

invoke the jurisdiction of a federal court to obtain [a] favorable [ruling] and then insulate that 

ruling from appellate review by claiming they are no longer interested in the matter, particularly 

when the [ruling] continues to have adverse effects on other parties to the litigation." 467 U.S.  



  

at 572, 104 S.Ct. at 2584. The Court also held. "As long as [non-settling] parties have a 

concrete interest in the litigation, the case is not moot." 476 U.S. at 571, 104 S.Ct. at 2584. 

The same points of law apply here. 

32. The order Attorney General Morales and the Plaintiffs seek from this Court, 

remanding their "Settlement Agreement" to the trial court for "effectuation," would violate many 

laws and would have severely prejudicial effects on Judges Wood and Entz and on the people 

of Texas. Texas law, the law of this Circuit, and Supreme Court law all condemn the judicial 

enforcement of any such "settlement" made over the objections of non-consenting parties. 

WHEREFORE, for the foregoing reasons Defendant-Intervenor Appellant Harris County 

District Judge Sharolyn Wood respectfully requests that the Court deny Attorney General Dan 

Morales’s and the Plaintiffs/ Appellees’ "Joint Motion to Remand for Hearing on Effectuation 

of Settlement," that it decide this case on the merits of the interlocutory appeal obtained by 

Judge Wood and Judge Entz, and that it grant Judge Wood such other and further relief in law 

and in equity to which she may show herself justly entitled. 

Respectfully submitted, 

PORTER & CLEMENTS, L.L.P. 

  

By: ) Cine Clo rat LX 

J{ Eugene Clements 
velyn V. Keyes 

700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 
Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

ATTORNEYS FOR APPELLANT/DEFENDANT/ 

INTERVENOR HARRIS COUNTY DISTRICT 

JUDGE SHAROLYN WOOD 

15 

 



  

OF COUNSEL: 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

Telephone: (713) 228-5101 

Facsimile: (713) 223-9133 

16 

 



  

CERTIFICATE OF SERVICE 
  

I certify that on this qt day of May, 1993, a true and correct copy of the foregoing 
document was served by first class United States mail, postage prepaid, addressed as follows: 

William L. Garrett 

Garrett, Thompson & Chang 

8300 Douglas, Suite 800 
Dallas, Texas 75226 

Rolando Rios 

Attorney at Law 

115 E. Travis, Suite 1024 

San Antonio, Texas 78205 

Sherrilyn A. Ifill 

NAACP Legal Defense & 

Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

Gabrielle K. McDonald 

Walker & Satterwaite 

7800 Mopac, Suite 215 

Austin, Texas 78759 

Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

Judith Sanders-Castro 

MALDEF 

140 E. Houston 

San Antonio, Texas 78205 

Robert H. Mow, Jr. 

David Godbey 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Walter L. Irvin 

5787 South Hampton Road 

Suite 210, Lock Box 122 

Dallas, Texas 75232-2255 

Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

405 N. St. Mary’s #910 

San Antonio, Texas 78205 

Renea Hicks 

Special Assistant Attorney General 
P. O. Box 12548 

Capitol Station 

Austin, Texas 78711-2548 

Seagal V. Wheatley 

Wheatley & Sharpe, L.L.P. 
100 West Houston 

Frost Bank Tower, Suite 1200 

San Antonio, Texas 78205 

Ms. Jessica Dunsay Silver 

Department of Justice 

P. O. Box 66078 
Washington, D.C. 20035-6078 

Mr. Joseph D. Jamail 

Jamail & Kolius 

One Allen Center 

500 Dallas, Suite 3434 

Houston, Texas 77002 

  

Lola 
EvelNA V. Keyes ro 

7630C:\DOCS\EVK\WO0027001\074 

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