Judge Entz's Opposition to Joint Motion to Remand

    - 
J i 

* HUGHES & LUCE, L.L.P ® 
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May 13, 1993 

VIA FEDERAL EXPRESS 
AIRBILL NO. 6197438032    

  

     

Mr. Richard Windhorst, Jr., Clerk 

New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens, Council 
No. 4434, et al. v. Entz, et al.; No. 90-8014 

Dear Mr. Windhorst: 

Enclosed .,are an original and 20 copies of Judge Entz's 
Opposition to Joint Motion €0 Remand for filing in the 
above-referenced matter and for presentation to the en banc 
Court. 

Please return a file-stamped copy to me in the enclosed 
self-addressed prepaid postage envelope. By copy Of ‘this 
letter, and in accordance with the Rules, copies of the 
enclosed document have been forwarded to counsel of record. 

Please contact me at the above number if you have any 
questions. Thank you for your assistance in this matter. 

DCG/pai 

ery truly yours, 

oA L Lok 
David C. Godbey 

Enclosures 

cc: William L. Garrett (Via Certified Mail RRR) 
lando L. Rios (Via Certified Mail RRR) 

herrilyn A. Ifill (Via Certified Mail RRR) 
Gabrielle K. McDonald (Via Certified Mail RRR) 
Edward B. Cloutman, III (Via Certified Mail RRR) 
E. Brice Cunningham (Via Certified Mail RRR) 
Renea Hicks (Via Certified Mail RRR) 
J. Eugene Clements (Via Certified Mail RRR) 
Seagal V. Wheatley 
Thomas Rugg 

Walter L. Irvin 

James George 

 



  

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

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

Plaintiffs-Appellees, 

Vv. 

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

Defendants-Appellants. 

  

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND 

  

Robert H. Mow, Jr., P.C. 
David C. Godbey 
Bobby M. Rubarts 

OF HUGHES & LUCE, L.L.P. 

1717 Main Street 
Suite 2800 
Dallas, Texas 75201 

(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

May 13, 1993 

 



  

TABLE OF CONTENTS 

TABLE OF CONTENTS «5 i» » ‘0. o 0.» ‘si iwi 8s" #0 2» 

1. INTRODUCTION iv vie 0 0: 0 0" wie win us .¢ io o's 

II. UNDER FEDERAL LAW THE SURRENDER AGREEMENT 

111, 

CANNOT PREVENT THIS COURT FROM HEARING THE 

MERITS OF JUDGE ENTZ'S APPEAL. . . . . . . . = 

A. The Supreme Court's Opinion in Local 93 

Prohibits a "Settlement" that Purports 

to Resolve the Claims of a Nonconsenting 

Third Party it 

B. The Opinions of This and Other Circuits 

Have Also Held that the Agreement of Two 

Parties Cannot Dispose of the Bights and 

Claims of a Third Party cH ei a 

C. Local S93 Requires Denying the Motion to 

Remand. ‘ Aa 

UNDER STATE LAW THE SURRENDER AGREEMENT CANNOT 

PREVENT THIS COURT FROM HEARING THE MERITS OF 

JUDGE ENTZ'S APPEAL. IE Cs ER 

A. State Policy Precludes the Attorney 

General from Unilaterally Asserting 

the huthorisy to Settle Redistricting 

Cases 

B. The Agreement Was Ultra Vires and Void. 

1. The Surrender Agreement Violates 

the Texas Constitution 

2 The Attorney General Does Not 
Have Authority to Amend the 
Texas Constitution . 

3. The Attorney General Does Not 

Have the Authority to Settle a Case 

Contrary to the Express Instructions 

of His Clients 

Page 

11 

11 

14 

15 

17 

21 

 



  

C. The Senate Never Approved the Surrender 

Agreement, So It Fails Due to the 

Non-Occurrence of a Condition Precedent . . . 21 

CONCLUSION. vv a sim va 0 ws » oiraiie wo ssiinidn os a inis 24 

CERTIFICATE OF SERVICE. ., sv + ¢ o so 8 8s + si s nie oo io 25 

 



  

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

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

Plaintiffs-Appellees, 

Vv, 

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

Defendants-Appellants. 

  

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND 

Appellant Dallas County District Judge F. Harold Entz 

("Judge Entz") opposes Appellees' and the Attorney General's 

Motion to Remand, for the following reasons: 

I. INTRODUCTION 

The Joint Motion is one more step in the collusive and 

partisan-motivated efforts of the Attorney General of the 

State of Texas and plaintiffs-appellees (collectively, 

"Movants") to change the way Texas selects its district 

judges. Movants seek to effectuate their scheme while 

avoiding the tedious requirements of amending the Texas 

Constitution or waiting for a ruling from this Court that the 

existing system of electing judges in fact violates federal 

law. Judge Entz intervened in part precisely because he 

feared such a collusive "non-defense" by the Attorney General; 

fortunately, due to Judge Entz's and Judge Wood's 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 1 

 



  

intervention, the Attorney General's plan to capitulate will 

not succeed. Both federal and Texas law preclude the Attorney 

General's surrender from interfering with Judge Entz's and 

Judge Wood's continued prosecution of this appeal. 

The instant motion to remand is part of an ongoing 

pattern, dating back to the Attorney General's and plaintiffs’ 

joint motion for an interim plan, in which the Attorney 

General first tried to surrender to plaintiffs in the district 

court. That pattern continued through the Attorney General's 

failure to defend this Court's en banc ruling before the 

Supreme Court, on up through his failure to defend the State's 

system before this Court and, instead, surrendering to 

plaintiffs in the so-called "Settlement Agreement,” dated 

March 24, 1993. [Because the ‘sgresnsnt cannot accomplish a 

settlement absent the agreement of all parties, Judge Entz 

will hereinafter cite that instrument as the "Surrender 

Agreement."] 

In any other kind of case, the Court might well consider 

sanctions if two parties moved to dismiss a third party's 

appeal, supported by nothing more than the agreement of the 

moving parties. The Movants apparently want their request for 

the same result to be taken seriously here, even though they 

cite but one inapplicable case for their position. Judge Entz 

is troubled that Movants either filed their motion knowing 

there was no legal support for their position, or else are 

trying to sandbag Judge Entz by holding whatever authority 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 2 

 



they can muster for a reply brief; in the latter event, Judge 

Entz will seek leave to file a short surreply to the extent 

needed. 

Before the Attorney General acted to defend the State in 

this Court, Judge Entz and Judge Wood first perfected their 

appeals, first requested a stay of the district court's 

interim plan remodelling Texas' judiciary, and first requested 

expediting appeal; they alone defended this Court's ruling 

before the Supreme Court; and they finally stand alone before 

this Court defending the State's system of electing judges. 

It is no wonder that the Attorney General and plaintiffs would 

like to prevent this Court from hearing Judge Entz and Judge 

Wood defend the State on the merits. The instant Motion 

amounts to nothing more than a ‘motion to dismiss Judge Entz's 

and Judge Wood's independently perfected appeals on the 

grounds that the Attorney General and plaintiffs have struck a 

deal. Notwithstanding Movants' wishful thinking, the Federal 

Rules of Civil and Appellate Procedure also apply to Voting 

Rights Act cases and do not permit the Surrender Agreement to 

muzzle those voices that seek to defend the method of judicial 

selection in Texas. 

II. UNDER FEDERAL LAW THE SURRENDER AGREEMENT CANNOT PREVENT 

THIS COURT FROM HEARING THE MERITS OF JUDGE ENTZ'S APPEAL 

A. The Supreme Court's Opinion in Local 93 
Prohibits a "Settlement" that Purports to iv : Stain ” y t] Third Par 

Federal procedural law prevents the Movants from silencing 

Judge Entz through the Surrender Agreement. The starting 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE -3  



  

point for analyzing the impact of the Surrender Agreement on 

Judge Entz's appeal must be the Supreme Court's opinion in 

Local Number 93, International Association of Firefighters v. 

City of Cleveland, 478 U.S. 501 (1986). The Supreme Court 

there approved entry of a consent decree over the objection of 

  

an intervenor, but did so in terms and for reasons that make 

clear that the Surrender Agreement cannot prevent Judge Entz 

from prosecuting his appeal. Because Local 93 is dispositive, 

Judge Entz will address the facts in some detail. 

Minority firefighters sued Cleveland under Title VII 

claiming discrimination in promotion of minorities. Id. at 

504-05. Local 93, which represented a majority of Cleveland's 

firefighters, intervened as a party plaintiff, although it did 

not truly seek any affirmative relief from the city, but only 

a perpetuation of the status quo. Id. at 506-07. The 

original plaintiffs and the city ultimately reached a 

settlement agreement under which additional promotion slots 

would be created and made available to minority firefighters; 

the settlement did not take away any slots that were 

previously available generally to qualified applicants. I8. 

at 508-10. "The decree imposed no legal duties or obligations 

on. Local 93.% 14. at 511. 

Local 93 objected, essentially on the basis that it did 

not agree with the proposed consent decree. Id. "Apart from 

thus expressing its opinion as to the wisdom and necessity of 

the proposed consent decree, the Union still failed to assert 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 4 

 



  

any legal claims against either the [plaintiffs] or the 

City." 1d. The district court approved the consent decree 

over Local 93's objection, and retained jurisdiction to hear 

further challenges. “[Tlhe District Court's retention of 

jurisdiction leaves it open for [Local 93] to press whatever 

other claims it might have before that court.” Id. at 513 

n.5. The case went to the Supreme Court on the sole question 

of whether the substantive terms of the consent decree were 

permissible under Title VII; it did not directly raise the 

issue of whether the union's refusal to consent alone could 

block entry of the decree. 1d. 

The merits of the Title VII issue are not pertinent here, 

other than to note that the Court placed great weight on the 

statutory policy favoring settlement embodied in Title VII. 

1d. at 515-16. In concluding its opinion, the Court addressed 

the impact of the union's refusal to consent: 

It has never been supposed that one party -- whether an 

original party, a party that was joined later, or an 

intervenor -- could preclude other parties from settling 

their own disputes and thereby withdrawing from 

litigation. 

Of course, parties who choose to resolve litigation 

through settlement may not dispose of the claims of a 

third party, and a fortiori may not impose duties or 

obligations on a third party, without that party's 

agreement. A court's approval of a consent decree between 

some of the parties therefore cannot dispose of the valid 

claims of nonconsenting intervenors: if properly raised, 

these claims remain and may be litigated by the 

intervenor. [citing Wheeler v. American Home Products 

Corp., 563 F.2d 1233 (5th Cir. 1977).] And, of course, a 

court may not enter a consent decree that imposes 

obligations on a party that did not consent to the 

decree. However, the consent decree entered here does not 

bind Local 93 to do or not to do anything. 

  

  

  

  

  

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 5 

 



  

Moreover, the consent decree does not purport to resolve 

any claims the Union might have under the Fourteenth 

Amendment. Indeed, despite the efforts of the District 

Judge to persuade it to do so, the Union failed to raise 

any substantive claims. Whether it is now too late to 

raise such claims, or -- if not -- whether the Union's 

claims have merit are questions that must be presented in 

the first instance to the District Court, which has 

retained jurisdiction to hear such challenges. The only 

issue before us is whether § 706(g) barred the District 

Court from approving this consent decree. 

Id. at 528-30 (citations omitted, emphasis added). Local 93 

thus stands for two complementary propositions: (1) A 

nonconsenting party cannot force other parties to continue 

fighting; and (2) settling parties cannot force 5 

nonconsenting party to give up his or her rights. 

B. The Opinions of This and Other Circuits Have 
Also Held that the Agreement of Two Parties Cannot 
Dispose of the Rights and Claims of a Third Party 
  

The principles Local 093 affirms are supported by other 

opinions of this Court, both before and after Local 093. In 

Black Association of New Orleans Fire Fighters v. City of New 
  

Qrleans, 853 F.2d. 347, 352 n.15 (5th Cir. 1988), this Court 

noted in dicta that "a consent decree may not be issued if it 

affects third parties who do not agree to it . . . ." In 

Harris v. Amoco Production Co., 768 F.2d 669, 675 (5th Cir. 
  

1585), cert. denied, 475 U.S... 1011 (1986), this Court held 

that the EEOC as plaintiff-intervenor was entitled to continue 

suit against the defendant employer even after the original 

plaintiff employees had settled. 

In United States v. City of Miami, 664 F.2d 435 (5th Cir. 

1981) (en banc) (per curiam), this Court held that parties 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 6 

 



  

could not by consent decree stipulate away the rights of a 

nonconsenting party. As Judge Gee stated in concurring for 

eleven Judges of this Court: "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 from the viewer's eye, it is 

at first hard to recognize." Id, at 451 (Gee, J., concurring 

and dissenting). 

Finally, in Wheeler v. American Home Products Corp., 582 
  

F.2d 891 (5th Cir. 1977), the Court reversed a district court 

order dismissing the claims of an intervenor on the basis of a 

settlement between the original parties, noting that "[O]nce 

intervention has been allowed; the original parties nay not 

stipulate away the rights of the intervenor.” 1d. at 896 

(quoting 3B Moore's Federal Practice (24 ed.) 24-671, 672). 

The Supreme Court cited Wheeler with approval on this point in 

Local 93. Local 93, 478 U.S. at 529 {citing uncorrected 

version of the opinion). Cf. Sheffield v, Itawamba County 

Boar rvi , 439 F.24 35, 36. (5th Cir. 1971) (Court 

refused to give effect to a settlement of a voting rights 

class action, noting that "having instituted a public lawsuit 

to secure rectification for a constitutional wrong of wide 

dimension, [the parties] cannot privately determine its 

destiny."). Judge Entz also notes that his understanding of 

Local 93 has been adopted by other Circuits. See United 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 7 

 



  

States v., City of Chicago, 978 F.2d 325, 330 (7th Cir. 1992); 
  

Chernin v. Lyng, 874 F.2d 501, 508 (8th Cir. 1989); United 

States v. State of Oregon, 913 F.2d4 576, 582 n.4 {Sth Cir. 
  

1990), cert. denied, 111 :S. Ct. 2889 (1991). Cf. Douglas 

Laycock, Consent Decrees Without Consent: The Rights of 

Nonconsenting Third Parties, 1987 U. Chi. Legal F. 103 

(discussing issue in context of affected persons who are not 

  

parties to lawsuit). 

Movants' have only questionable support for their claim, 

contrary to the above cited authority, that the Surrender 

Agreement can prevent the Court from hearing Judge Entz's 

appeal. The only case or legal authority cited in the joint 

motion to remand is this Court's one-paragraph opinion in 

hisom v. Edwards, 970 F.2d 1408 (5th Cir.) (on remand), app. 

dizm'd, "975 F.2d 1092. (5th Cir. 1992). See Joint Motion at 

l.. Movants claim they are simply following the precedent 

established in that opinion. They apparently did not read all 

four sentences of the opinion or they would have noticed that 

the Court recited that the Joint motion to Remand in Chisom 

was "filed by all parties." Chisom, 970 F.24- at 1409 

(emphasis added). Not to belabor the obvious, but Judge Entz 

and Judge Wood did not join in the instant motion to remand. 

Chisom is inapplicable to these facts. 

C. Local 93_Regquires Denying the Motion to Remand 
  

In applying the principles of Local 93 to this case, the 

Court should note pertinent differences between the two 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 8 

 



cases. First, the settlement in Local 93 was a "positive sum" 

settlement; in other words, instead of re-slicing the same 

pie, the settlement provided for a larger pie, so that the 

minority firefighters could get more without taking away from 

the majority firefighters. Here, the proposed settlement is a 

"zero sum" game; what the Attorney General tries to give up in 

the Surrender Agreement -- Texas' system of judicial selection 

-- is exactly what Judge Entz is fighting to protect. Thus, 

unlike Local 93, the Surrender Agreement purports to negotiate 

away the subject matter of Judge Entz's claims in the lawsuit. 

Second, the procedural posture of the two cases differs. 

Judge Entz intervened as a party defendant and has urged a 

variety of defenses to plaintiffs' claims, rather than 

purporting to intervene as a plaintiff. His relaiine® dn this 

case, then, are defenses rather than affirmative causes of 

action. Judge Entz has already urged his position on the 

merits in the trial court and, indeed, in this Court and the 

Supreme Court; he perfected this appeal in order to have his 

position adjudicated on the merits and his positions are ripe 

for determination by this Court at this time. The union 1in 

Local 93, in contrast, had yet to urge its claims on the 
  

merits, $f any, in'- the .adistrict court. Finally, the 

settlement in Local 93 was reached in the trial court before 

any adjudication on the merits; here the Surrender Agreement 

was struck after trial in the district court and after Judge 

Entz perfected the appeal. 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 9  



  

Applying the principles of Local 93 to this case yields 

three conclusions. First, Judge Entz cannot by withholding 

his consent force the Attorney General to continue the 

Attorney General's appeal; as far as federal law is concerned, 

the Attorney General can surrender if he wishes. 478 U.S. at 

528-29 ("It has never been supposed that one party . . . could 

preclude other parties from settling their own disputes and 

thereby withdrawing from litigation."). Note that state law 

may not so hold. See infra Part III. Second, and on the 

other hand, the Surrender Agreement cannot take effect without 

Judge Entz's consent because it purports to resolve the 

subject matter of Judge Entz's claims. Id. at 529 ("[Plarties 

who choose to, resolve litigation through settlement may not 

dispose of the claims of a third pazrity."). Lastly, the 

Surrender Agreement cannot prevent this Court from ruling on 

the merits of Judge Entz's appeal. Id. at 530 ("[W]lhether the 

Union's claims have merit are questions that must be presented 

in the first instance to the District Court."). Having 

presented his claims in the first instance to the district 

court, and having perfected his appeal, Local 093 entitles 

Judge Entz to a ruling on the merits by this Court. 

That being the case, the Court's disposition of the motion 

to remand is clear. Because the Attorney General wants to 

quit and because Judge Entz cannot force him to appeal, the 

Court should grant the Joint Motion to the extent of 

dismissing the Attorney General from this appeal. Second, 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 10 

 



  

because the Surrender Agreement cannot dispose of Judge Entz's 

claims absent Judge Entz's consent, the Court should not 

remand for consideration of the proposed "settlement." Third, 

because Judge Entz is entitled to a hearing on his claims, the 

Court should rule on the merits. Then, as appropriate, the 

Court can reverse and render, or affirm and remand for 

consideration of the Surrender Agreement. 

III. UNDER STATE LAW THE SURRENDER AGREEMENT CANNOT PREVENT 
THIS COURT FROM HEARING THE MERITS OF JUDGE ENTZ'S APPEAL 

Aside from the federal law issues barring the remand that 

Movants request, state law prohibits the Attorney General from 

attempting to silence Judge Entz before this Court. First, 

under Texas law, the Attorney General has no authority to 

prevent Judge “Entz from supporting the existing system, even 

if the Attorney General is empowered to surrender. Second, 

although the Attorney General may have the discretion in 

general to settle a lawsuit, the Attorney General does not 

have the power to amend the Texas Constitution through a 

contrived approval procedure. Finally, under plain contract 

law, the Surrender Agreement is null because of failure of a 

condition precedent, since it was never approved by the Senate. 

A. State Policy Precludes the Attorney 
General from Unilaterally Asserting the 
Authority to Settle Redistricting Cases 

Through the Joint Motion, the Attorney General in effect 

asserts the right to prevent any third party from contesting 

the district court's findings of a violation of section 2 of 

the Voting Rights Act. That assertion 1s contrary to the 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 11 

 



  

policy of the State of Texas, as expressed in Terrazas v. 

Ramirez, 829 S.W.2d 712 (Tex. 1991). In that case, in part, 

the Attorney General had attempted to collude with plaintiffs 

to effect a redistricting of the Texas Senate by filing a 

lawsuit and an agreed settlement concurrently. The agreed 

settlement order was signed by the court the day the suit was 

filed, effectively preventing any third party consideration of 

the settlement. Id. at 715 n.6. 

The Terrazas plurality held that the Attorney General was 

entitled to settle a lawsuit: 

Although the Attorney General appears to have acted 

throughout this litigation only on behalf of the state 

defendants and not for himself, he had the authority, 

certainly for his clients and even on his own, to suggest 

possible remedies after the district court rendered an 

interlocutory summary judgment holding Senate ‘Bill 31 

unconstitutional. He also had the power to negotiate a 

settlement with the plaintiffs and to execute an agreement 
with them. To hold that he did not would be to give him 

less authority than any party or any other attorney 

participating in the case. 

The real issue, however, is not whether the Attorney 

General had the power to do what he did in this case, but 

what the effect of his action was. As he conceded at oral 

argument, he certainly had no power to effectuate a valid 

reapportionment of senatorial districts himself; that 

could be done only by judgment of the district court. The 

settlement agreement may have been a valid agreement 

between plaintiffs and the state defendants. It alone 

could not, however, support rendition of a judgment 

without evidence and without other interested parties 

being encouraged to intervene in the litigation. 

Terrazas, 829 S.W.2d at 722 (plurality). 

Terrazas thus stands for at least two propositions. 

First, like any lawyer representing his or her clients, the 

Attorney General can settle a case on behalf of those clients, 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 12 

 



  

albeit, the settlement in Terrazas was authorized only after a 

finding that the challenged statute was unconstitutional. 

Second, the Attorney General cannot by his settlement prevent 

other parties or intervenors from challenging the settlement 

or contesting the case. 

Although the Attorney General is prepared to undergo a 

hearing on the Surrender Agreement in the district court, that 

is not the analogous procedure dictated by Terrazas. The evil 

Terrazas sought to rectify was unilateral action by the 

Attorney General preventing third parties from being heard in 

the trial court, where the cases at issue were then pending, 

and then on appeal. The Texas Supreme Court held that the 

Attorney General and the plaintiffs could not through their 

agreement silence third parties and intervenors. Here, the 

merits of the appeal are pending in this Court, proceedings in 

the trial court having been stayed for years. Again, the 

Attorney General and plaintiffs are attempting through their 

agreement to prevent the Court from hearing Judge Entz's and 

Judge Wood's defense of Texas' system of judicial selection. 

Under Terrazas, simply as a matter of state law constraints on 

the power of the Texas Attorney General, the Attorney General 

does not have the authority to attempt to silence Judge Entz. 

The Attorney General swore an oath to protect and defend 

the laws and the constitution of the State of Texas. Judge 

Entz and the Attorney General disagree about whether that oath 

means what it .says and whether the Attorney General must 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 13 

 



  

defend the state before this Court. See infra Part III.B. 

Although, some authority suggests that the Attorney General 

could acquiesce in the trial court's ruling and decide not to 

appeal, Bullock v. Texas Skating Association, 583 S.W.2d 888 

(Tex. Civ. App. -- Austin 1978, writ ref'd n.r.e.) (Attorney 

General has discretion not to appeal lower court finding of 

invalidity of statute), it is unclear whether Bullock v. Texas 

Skating would apply to a finding that part of the Texas 

Constitution is invalid. Regardless, even if the Attorney 

General is not compelled to defend the Constitution on appeal, 

lock wv in certainly does not stand for the 

proposition that the Attorney General, in the performance of 

his oath, can prevent other parties from defending the Texas 

Cohstitationt For this reason, also, the Court Should deny 

the Joint Motion to Remand. 

B. The Agreement Was Ultra Vires and Void 
  

Aside from the fact that the Attorney General cannot by 

his agreement prevent Judge Entz and Judge Wood from being 

heard, the Joint Motion should be denied for the further 

reason that the Surrender Agreement is ultra vires and void. 

First, the Surrender Agreement would result in a judicial 

amendment to the Texas Constitution. The Texas Constitution 

prohibits the terms of the Surrender Agreement, and their 

adoption would constitute an amendment. The Attorney General 

does not have the authority to amend the Texas Constitution by 

his agreement. Second, the Attorney General cannot settle a 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 14 

 



lawsuit contrary to the instructions of his client, and any 

such purported settlement is ultra vires and void. 

1. The Surrender Agreement Violates the Texas 
  

Constitution. -- The Surrender Agreement calls for judges to 

be elected from electoral districts smaller than a county, 

with primary jurisdiction to remain county-wide. That 

violates article V, sections 7 and/or 7a of the Texas 

Constitution. Section 7a requires that judicial districts be 

no smaller than a county, absent a vote of the residents of 

that county approving the subdivision. The electoral 

subdistricts violate section 7a because they constitute 

districts smaller than a county. 

The Movants no doubt intend to argue that the Surrender 

Agreement does not violate section 7a because the Judicial 

district at issue is the area of primary jurisdiction, which 

remains county-wide and thus complies with section 7a, 

regardless that the "electoral districts" are smaller than a 

county. Although Judge Entz believes that argument smacks of 

word games, it would not save the Surrender Agreement even if 

correct. In avoiding the Scylla of section 7a, Movants 

encounter the Charybdis of section 7. 

Section 7 requires that all the qualified voters in the 

judicial district elect the district judge. If the judicial 

district is characterized as county-wide to avoid violating 

section 7a, then the electoral subdistricts violate section 

7. Section 7 presently requires that "[e]Jach district judge 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE .15  



  

shall be elected by the qualified voters at a General Election 

" Tex. Const. art. V, § 7 (Vernon Supp. 1993). In 

context, "qualified voters" means the persons in the judicial 

district who are qualified to vote. This is made clear by the 

legislative history of section 7. 

The current language was adopted by amendment in 1985. 

The predecessor language stated that "[f]Jor each district 

there shall be elected by the qualified voters thereof, at a 

General Election, a judge . .  . ." Tex, Const. art. Vv, § 7 

(Vernon 1955) (emphasis added). The term "thereof" clearly 

indicates that "qualified voters" means the voters of the 

judicial district. The conference committee on S.J.R. 14, the 

constitutional amendment resolution, changed this language. 

The conEeTence committee report indicates that the purpose of 

the language change was simply to "clean-up language." A copy 

of that report is attached to this Opposition as Exhibit "A." 

The predecessor language clearly requires all voters in the 

district be able to vote for the judge and the language change 

was intended only to "clean-up," and not work substantive 

change; thus, the current language also should be read to 

require all voters in the district vote for district judge. 

Two other virtues support this reading. First, it is a 

natural, common sense reading of section 7. Second, as Judge 

Entz argues in his brief on the merits, such a reading is 

required by the federal constitution, which would prohibit a 

disenfranchisement. See Judge Entz's Reply Brief at 12-14. 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 16 

 



  

Thus, the Surrender Agreement violates either section 7 or 

section 7a of the Texas Constitution. 

o., The Attorney General Does Not Have Authority to Amend 
  

the Texas Constitution. -- Because the Joint Motion provides 

no authority or argument for why it is valid, Judge Entz must 

speculate about why the Attorney General believes he has the 

authority to sign away the Texas Constitution. The Attorney 

General has elsewhere invoked Terrazas and the Supremacy 

Clause as authority for his negotiating and signing the 

Surrender Agreement. Neither argument works. The Surrender 

Agreement effectively amends the Texas Constitution, as shown 

above. In asserting his authority to enter into the Surrender 

Agreement, the Attorney General is claiming no less than the 
Fl 

Ld 

authority to amend the Texas Constitution, in concert with any 

convenient group of plaintiffs. 

As an aside, Judge Entz must note that the provisions of 

the Surrender Agreement calling for the signature of the 

Governor, various state officers, and majority approval of 

both houses of the Texas Legislature are nothing more than a 

charade and window dressing. If, as he claims, the Attorney 

General has the authority to agree to a change in the Texas 

Constitution, then those additional signatures and approvals 

are pure fluff and a public relations gimmick. If he does 

not, then the additional approvals add nothing, because they 

still do not comply with the constitutional requirements for 

an amendment. The Texas Constitution requires a 2/3 vote in 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 17 

 



  

both houses of the Legislature, together with «citizen 

approval, precisely to prevent this kind of collusive 

political deal by the party that happens to enjoy a simple 

majority in the Legislature at the moment. Constitutions 

require a certain inertia provided by the hurdles of 

supermajority thresholds in the Legislature and the check of 

citizen approval. The Surrender Agreement has not passed 

either hurdle. 

Terrazas does not give the Attorney General the power to 

amend the Texas Constitution by his agreement. At issue in 

Terrazas was a settlement agreement to change a state 

statute. 829 .S.W.24 at 721-22 (plurality). The plurality 

opinion nowhere indicates that the Attorney General can 

acquiesce in an attack on the Texas Constitution. Four 

justices plainly wrote that the Attorney General cannot assume 

powers the Texas Constitution places elsewhere. Id. at 727 

(Gonzalez, Je concurring); id. at 731-34 (Cornyn, J. 

concurring); id. at 753 (Hightower, J., dissenting, joined by 

Gammage, J.). Because the Texas Constitution explicitly 

creates procedures for amending the Constitution and does not 

grant that authority to the Attorney General, the four 

concurring and dissenting Justices would not approve of the 

Surrender Agreement. Chief Justice Phillips, a member of the 

Terrazas plurality, has shown by his actions in this case that 

he apparently disagrees with the Attorney General's assertion 

of such authority. 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 18 

 



  

An attack on the constitution, as here, implicates 

different issues than the attack on the state statute in 

Terrazas. For one thing, if the Legislature thinks the 

Attorney General wrongly abandoned a statute, it can reenact 

the statute. Amending the Constitution (if proper procedures 

are followed) is another matter altogether. Thus Terrazas 

does not authorize a "settlement" that amends the Texas 

Constitution. 

This view of Terrazas is confirmed by Public Utility 

mmission Vv , 754. S.W.24 121 (Tex. 1988). The Court 

there stated that "[wlhile the Attorney General has the right 

and duty to represent the state agencies, he has no 

constitutional or statutory authority to exercise powers that 
hd : 

belong to the Legislature . . . ." 1d. at 125 (emphasis in 

original). The Texas Constitution plainly grants the 

Legislature the power to amend the Texas Constitution, by 2/3 

vote followed by voter approval. §See Tex. Const. art. XVII, 

§ 1. (Vernon “Supp. 1983). By purporting to approve the 

Surrender Agreement and thereby amend the Texas Constitution, 

the Attorney General was trying to exercise powers that belong 

to the Legislature and thus he exceeded his authority under 

PUC v, Cofer. This holding -of PUC v, Cofer is consistent with 

Judge Entz's understanding of Terrazas, which nowhere purports 

to overrule PUC v, Cofer. 

Nor can the Attorney General hide behind the Supremacy 

Clause. He has elsewhere stated that he can ignore his 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 19 

 



  

obligation to defend the Texas Constitution because he is also 

obligated to follow federal law. Because the Texas 

Constitution violates the Voting Rights Act, he argues, he has 

no obligation to protect and defend the Texas Constitution. 

The flaw in that specious argument is that it assumes its 

conclusion. Yes, if the Texas Constitution violated federal 

law, federal law would prevail under the Supremacy Clause. 

That is a substantial "if," however. Surely an obligation to 

defend the Texas Constitution requires some obligation to find 

out whether it does in fact violate federal law, or at 

minimum, not stand in the way of other parties who want to 

find an authoritative answer to that question. 

The scope of the authority the Attorney General claims 

here 1is stinbering. Does he. require a lower court ruling 

before he can surrender and accomplish an amendment? Does he 

require a lawsuit to be filed? Does he even require a demand 

letter? Perhaps, under the Attorney General's view, he could 

sue the State and claim a statute is unconstitutional and, 

under PUC v. Cofer, he could also defend against himself and 

settle; that would dispense with the need even for a friendly 

plaintiff in order for the Attorney General to amend the Texas 

Constitution. Judge Entz respectfully submits that the 

Attorney General's oath and obligations under the Texas 

Constitution should have some meaning. 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 20 

 



  

3. The Attorney General Does Not Have the Authority to 
  

Settle a Case Contrary to the Express Instructions of His 
  

Clients. -- Judge Entz also adopts and incorporates by 

reference the arguments of Judge Wood and Chief Justice 

Phillips that the Attorney General, when acting as the 

mandatory lawyer for other state officials, still has the duty 

to represent his clients. See Terrazas, 829 S.W.2d at 722 

(noting Attorney General was acting on behalf of his state 

defendant-clients and had the same rights as any other 

attorney); PUC v. Cofer, 754 S.W.2d4 at 125 (noting that the 

Attorney General as mandated lawyer for the state is still 

required to conduct that representation in accordance with the 

wishes of his clients). Because the Attorney General's 

Surrender Agreement contravenes the express instructions of 

his clients, it is ultra vires and void. Judge Entz notes 

that the Surrender Agreement and the Joint Motion do not even 

purport to be made on behalf of all of the Attorney General's 

clients in this action, highlighting the ultra vires nature of 

the capitulation. 

C. The Senate Never Approved the Surrender Agreement, So 

It Fails Due to the Non-Occurrence of a Condition Precedent 
  

The Surrender Agreement requires as a condition precedent 

the "majority approval of both houses of the Texas 

Legislature.” Surrender Agreement at 2. Exhibit A to the 

Joint Motion reflects approval by only a committee of the 

Texas Senate. Admittedly, that committee was the Committee of 

the Whole, but that is not the same as approval by the 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 21 

 



  

Senate. As Judge Entz will discuss below, this is more than 

just hair splitting. Because the Senate never approved the 

Surrender Agreement, it is ineffective on its own terms and 

cannot be the basis of a remand. 

The Texas Senate has adopted rules that govern its 

actions. Copies of the pertinent provisions are attached to 

this Opposition as Exhibit "B." Consideration of resolutions 

by the Senate is provided in Rules 5.08 through 5.13. Various 

provisions in the Senate rules permit eleven Senators (32/3, 

rounded up) to block consideration of a bill or resolution by 

the Senate. For example, Rule 5.02 requires 2/3 of the Senate 

as a quorum. Also, Rule 5.13 requires a 2/3 vote to consider 

8 bill out of regular order; it is the practice of the Texas 

Senate that the regular calendar always contains as its first 

item a "blocking bill,” the only purpose of which is to 

require that consideration of any other bill take place only 

by a 2/3 vote under Rule 5.13. 

According to published reports, the Senate was unable to 

consider the Surrender Agreement because the 2/3 votes in 

support of it were lacking. The legislative compromise 

reached was that the resolution endorsing the Surrender 

Agreement would be referred to the Committee of the Whole, 

which referral does not require a 2/3 vote. See Exhibit "C" 

(news reports). The procedures governing the activities of 

the Committee of the Whole are set forth in Rules 

13.01-13.05. This background information is provided simply 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 22 

 



  

so the Court may understand why these events took place, and 

is not required for the substance of this argument: Exhibit A 

to the Joint Motion plainly reflects a vote in the Committee 

of the Whole to report the resolution to the full Senate, and 

not a vote by the Senate itself. Moreover, Exhibit A lacks 

the 2/3 support that would later be required to prevent a 

minority's blocking the full Senate from consideration of the 

resolution. 

Two points merit consideration. First, Senators may, for 

a variety of reasons, vote to send a bill out of committee to 

the full Senate without intending to vote for the bill or 

resolution if it ever comes before the Senate. For example, a 

Senator might simply desire that a vote by the Senate killing 

the bill or resolution take place. In any event, tha votes 

recorded in Exhibit "A" to the Joint Motion are not votes in 

favor of the resolution per se, but are technically just votes 

to report the resolution out of the Committee to the Senate. 

Second, as shown on its face, the Committee vote is not a 

Senate vote. In comparison, Exhibit B to the Joint Motion in 

fact represents a true action by the House. 

The procedure Movants concocted for "approval" of the 

Surrender Agreement was - created out of whole cloth. 

Admittedly, the parties to the Surrender Agreement certainly 

could have drafted it to require only some indication of 

support by a majority of the Senators, but they did not. 

Instead, the agreement required approval by the Senate. It 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 23 

 



  

did not get that approval. Cf. Terrazas, supra, 829 S.W.2d at 

734 (Cornyn, J., concurring) ("Any official act attempted by a 

separate meeting of Senators not convened in a regular or 

special session is a nullity.") (citing Op. Tex. Att'y Gen. 

No. O-7061, at 9 (1946)). The Movants' cavalier disregard for 

the Senate Rules is not surprising, given their cavalier 

disregard for the procedures for amending the Texas 

Constitution. Nonetheless, having made their agreement and 

agreed upon Senate approval as a condition precedent, they are 

stuck with the consequences. Absent Senate approval, they now 

have no agreement. 

CONCLUSION 

In essence, the Motion seeks to undo Judge Entz's and 

Judge Wood's Y intervention, after this Court en banc has 

affirmed their standing and they have participated in the 

defense of this case to the Supreme Court and back again. It 

is too late for the Attorney General to slam the courthouse 

door in Judge Entz's face -- Judge Entz walked through that 

door years ago and has been seated at the defense counsel 

table ever since. 

Therefore, for the reasons stated, Judge Entz requests 

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

dismiss the Attorney General's appeal in accordance with the 

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

this appeal, reverse the decision of the District Court and 

render judgment in favor of the defendants. 

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 24 

 



  

Respectfully submitted, 

sell 
ie 

  

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 

OF HUGHES & LUCE, L.L.P. 
1717 Main Street 
Suite 2800 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

RTIF F VICE 

I certify that I served two copies of the foregoing brief 

by certified mail, return receipt requested, on William L. 

Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, 

Dallas, Texas 75225; Rolando Rios, Milam Building, 115 E. 

Travis Street, Suite 1024, San Antonio, Texas 78205; Sherrilyn 

A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 

Hudson Street, leth Floor, New York, New York 10013; 

Gabrielle K. McDonald, Walker & Satterthwaite, 7800 N. Mopac, 

Suite 215, Austin, Texas 78759; Edward B. Cloutman, 111, 

Cloutman, Albright & Bower, 3301 Elm Street, Dallas, Texas 

75226-1637; Renea Hicks, Office of the Attorney General, P.O. 

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

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

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

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

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 25 

 



  

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

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

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

77002-4793 in accordance with the Federal Rules of Appellate 

Procedure this 13th day of May, 1993. 

Dod by   

JUDGE ENTZ'S OPPOSITION TO JOINT MOTION TO REMAND -- PAGE 26 

 



SIDE-BY-SIDE 

SENATE VERSION 

BALES) 

HOUSE VERSION CONFERENCE REPORT 
  

SECTION 1. 

  

Adds a new Section 7a to Article V 
of the Texas Constitution, creating 

the Judicial Districts Board. The 
members of the board are the Chief 
Justice, the presiding judge of the 
Court of Criminal Appeals, the pre- 
siding judge of each of the adminis- 
trative judicial districts, the Presi- 

dent of the Texas Judicial Countil, 

the Chairman of the House Judiciary 
Committee and the Senate Jurispru- 

dence Committee, and one attorney 

selected by the Governor. The Board 
18 authorized to reapportion judicial 
districts by majority vote during 
legislative interims, except during 
an interim immediately follcwing a 
legislative reapportionment. 

Within three years of each federal 
census, the Board is to convene to 
reapportion judicial districts on a 
statewide basis, unless the Legisla- 

ture has already acted. If thé Board 

fails to redistrict, the task is 
pssed on to the Legislative Redistrict- 
ing Board. 

In addition to statewide reapportion- 
ment, the Board may reapportion with 
respect to specific judicial districts 
whenever necessary. Any reapportion- 
ment order adopted by the Board must 
be approved by the Legislature before 
1t becomes effective. 

  

The house version removes the 

"chairman of the Jurisprudence 
Committee of the Senate and the 
chairman of the Committee on the 
Judiciary of the House of Repre- 
sentives . (Subsection (b)) 

The house version removes the 
reference to "parts of a 
county" (Subsection (f)). 

The house version removes the 

Senate amendment which neutral- 

ized the Legislative directive, 
(Subsection (f)). 

The house version removes the 

reference to "parts of a county." 
(subsection (h)). 

New subsection (i): Allows 

counties to vote in a general 
election on the proposition & 
districts containing parts of 
a county. 

  

 



SIDE-BY-SIDE ANALYSIS OF S.J.I. 14 

  

    

  
      

  

SENATE VERSTON HOUSE VERSIGN CONFERENCE REPORT 

SECTION 2. Temporary provision applicable Same as senate 
State divided into Court of Appeals 

to the initial term ot the Board ; 
districts. (V,6) 

member appointed by the Governor. 

SECTION 3. No similar provision. No similar provision. District Court districts, clean-up 

language (V,7) 
| 

SECTION 4. No similar provision. No similar provision. District Court jurisdiction (V,8) 

3ECTION 5. No similar provision No similar provision County Court jurisdiction (V,16) A 

SECTION 6. No similar prcvision No similar provisicn® County Court terms. (V,17) 

SECTION 7. No similar provision No similar provision Justice of the Peace jurisdiction. 

(v,19). 

SECTION 8. No similar prcvision. No similar provision. Court Administration and rule-making 

authority. Leaves most power to the 

Legislature: Supreme Court can adopt 

administrative and procedural rules 

not inconsistent with law, and that 

Legislature can delegate rule-making in 

' other areas. Court of Criminal A; peals 
given rule-making power. 

SECTION 9. No similar provision. No similar provision. REPEALS: Const. Art. V: 
sec. 14. "Judicial districts ad 

time of holding court fixed 
by ordinance." 

  

sec. l6a. "Judges of statutory 
courts with probate -“uris- 
dictiohj dssignment.” 

g ~ 3 esis » % . . 

suc: 22. handing jurisdicti n of S$ 
County Courts” 

 



  

18] 

SIDE-BY=S1DL ANALYSIS S.J. R. 

HOUSE VERSTON 

  

SENATE VERSION 

TION 9. (cont.) 

TION 17. Temporary provision. 

TION 11. No similar provision. 

Same provision. 

No similar provision. 

CONFERENCE REPORT 

  
  

sae. 25. "rules of court.” 

Same provision. 

Calls for 1985 ballot submission, and 

restates question to be submitted to 
include tourt administration. 

¥ 

      

  
  

 



  

SENATE RULES   
adopted by 

73rd LEGISLATURE 

February 10, 1993 

  

EXHIBIT 

  

 



  

  

PRESIDING OFFICER TO ASSUME CHAIR 

Rule 5.01. The presiding officer shall take the chair at the hour to 
which the Senate last adjoumed. (Former Rule 9) 

QUORUM 

Rule 5.02. Two-thirds of all the Senators elected shall constitute a 
quorum, but a smaller number may adjourn or recess from day to day and 
compel the attendance of absent members (Constitution, Article III, Section 10). 
In case a less number shall convene, the members present may send the 

17 

i 

: 

Rule 4.08 

Editorial Note 

This rule is one of several first adopted in 1911 to 
prevent the Lieutenant Governor or any Senator occupying 
the chair temporarily and the Senators opposing a measure 

from killing it by dilatory tactics. 

PUNISHMENT FOR MISCONDUCT 

Rule 4.09. The Senate may punish any member for disorderly conduct 
and, with the consent of two-thirds of the elected members, may expel a 
member, but not a second time for the same offense. (Former Rule 61) 

BRIBERY 

2 Rule 4.10. Any member who shall receive or offer a bribe or who 
shall suffer his or her vote to be influenced by promise or preferment of reward 
shall on conviction be expelled. (Former Rule 63) (Also see Section 36.02, 

Texas Penal Code.) : 

ARTICLE V 
SENATE PROCEDURAL RULES 

(ORDER OF BUSINESS) 

Y 

4 

 



Rule 5.02 

  

Sergeant-at-Arms or any other person or persons for any or all absent members. 
(Former Rules 1 and 2) 

Editorial Note 

The exact text of Section 10 of Article III of the State 
Constitution is as follows: 

"Two-thirds of each House shall constitute a quorum 
to do business, but a smaller number may adjourn from day 
to day, and compel the attendance of absent members, in 
such manner and under such penalties as each House may 
provide.” 

Notes of Rulings 

Twenty members of the Senate constitute a quorum 
when only 30 members have qualified (35 SJ. 2 C.S. 23, 32 
(1917)). 

A point of order that no quorum is present does not 
deter continued transaction of business by Senate if in fact 
a quorum is known by the presiding officer to be present and 
he so announces (50 S.J. Reg. 417 (1947)). 

The raising of a point of order that no quorum is 
present justifies an order by the presiding officer that the roll 
be called to ascertain the presence or absence of a quorum 
(50 SJ. Reg. 417 (1947)). 

Under Senate Rule No. 5.02... a motion to recess 
(or adjourn) until a later time on the same day is a proper 
motion (61 SJ. Reg. 945 (1969)). 

A quorum of the Senate is present when 21 members 
answer the roll call (61 SJ. Reg. 954 (1969)).  



Rule 5.02 

  

There is a quorum of the Senate present when the last 
roll call taken by the Secretary shows that a quorum was 
present (61 S.J. Reg. 1926 (1969)). 

The attendance of absentees may be enforced only on 
order of Senators present (48 S.J. Reg. 355 (1943)). 

The attendance of absentees may be enforced although 
a quorum is present (48 S.J. Reg. 508 (1943)). 

ABSENCES 

Rule 5.03. No member shall absent himself or herself from the 

sessions of the Senate without leave unless the member be sick or unable to 

attend. (Former Rule 3) 

Editorial Note 

Rule 16.06, Subdivision (7), provides that a vote of 

two-thirds of the members present shall be required "to 
excuse absentees." The main effect of granting leave to an 

3 absent member is that he is recorded "absent-excused” oh all 
votes taken instead of "absent." 

CALL OF THE SENATE 

Rule 5.04. It shall be in order to move a call of the Senate at any time 
to secure, to maintain, or to secure and maintain a quorum for the following   purposes: 

(1) for the consideration of a specific bill, resolution, or other 

measure; 

(2) for a definite period of time or for the consideration of any 

particular class of bills. 

19 

“
A
N
E
 

 



  

Rule 5.04 

  

A motion for a call of the Senate is not debatable (61 

SJ. Reg. 1759 (1969)). 

ROLL CALL 

Rule 5.05. Upon every roll call the names of the members shall be 
called alphabetically by sumame, except when two or more have the same 
surname, in which case the name of the county shall be added. (Former Rule 4) 

PRAYER BY CHAPLAIN 

Rule 5.06. When there is a quorum present, prayer shall be offered by 
the Chaplain or other person designated by the President of the Senate. (Former 

Rule 10) 

READING OF JOURNAL 

Rule 5.07. After the prayer, the journal of the preceding day shall be 
read and corrected, if necessary. (Former Rule 10) 

MORNING CALL 

Rule 5.08. The President then shall call: 

(1) for reports from select committees; 

: (2) for Senate bills and resolutions and House bills and 
resolutions on first reading and referral to committee; 

(3) for the introduction and consideration of resolutions; 

(4) for messages and executive communications; 

(5) for motions to print on minority reports; 

(6) for other motions not provided herein, including but not 
limited to motions to set a bill for special order, to reconsider, to print and not 

22 

  

 



  

  

  

Rule 5.08 

  

print bills, to rerefer bills, to concur in House amendments to Senate bills, to not concur in House amendments to Senate bills, to request the appointment of conference committees, and to adopt conference committee reports. 

This concludes the morning call, which the President shall announce . to the Senate. 

It shall not be in order, during the morning call, to move to take up a bill or resolution out of its regular order, and the presiding officer shall not recognize any Senator for the purpose of making any such motion or making a motion to suspend this rule. (Former Rule 11) 

Editorial Note 

A motion to set a bill for a special order may be made 
under Item (6) of this rule, and motions to reconsider, to 
print or not print bills, and to re-refer bills may properly be 
made under Item (6) of the morning call. 

ORDER OF CONSIDERING BILLS AND RESOLUTIONS 

Rule 5.09. At the conclusion of the morning call, the Senate shall proceed to consider business on the President’s table, which shall be disposed of in the following order: 

(1) special orders: 

(2) unfinished business; 

(3) Senate Joint Resolutions; 

(4) Senate Resolutions: 

(5) Senate Concurrent Resolutions; 

23 

 



  

Rule 5.12 
  

SUSPENSION OF THE REGULAR ORDER OF BUSINESS 

28 

  

Editorial Notes 

On the very important matter of the order of 

considering each of the several bills reported from 

committees, the rules of the Senate were silent until Senate 

Rule 5.12 was amended on June 6, 1947, to provide that bills 

be placed on the calendars of Senate and House bills on the 

President’s table in the order in which the committee reports 

on the bills are submitted by the respective chairmen from 

the floor. Bills are listed for consideration on third reading 

in the order in which they have been passed by the Senate to 

engrossment or to third reading. 

The Senate Agenda is prepared daily and lists the bills 
in their order of consideration. 

Notes of Rulings 

~ A bill may not be considered by the Senate which has 

not been reported from a committee (44 SJ. Reg. 713 

(1935)). 

A report of a committee on a bill may be received 

only, and the question of its adoption is not voted on by the 

Senate (42 SJ. 1 C.S. 748 (1931)). 

Rule 5.13. No bill, joint resolution, or resolution affecting state policy 

may be considered out of its regular calendar order unless the regular order is 

suspended by a vote of two-thirds of the members present. (Former Rule 14.2) 

INTENT CALENDAR 

Rule 5.14. (a) During a regular session of the Legislature, any 

member who desires to suspend the regular order of business and take up a bill, 

joint resolution, or resolution out of its regular order shall give written notice of 

  

V 
¥ 
Ls 

: 
X



    

Rule 12.10 

  

shall be taken on any conference committee report in the absence of such 
analysis, except by an affirmative vote of two-thirds of the members present, 
with the yeas and nays thereon to be recorded in the journal. (Farmer Rule 
96(i)) 

ENFORCEMENT BY PRESIDENT 

Rule 12.11. The President of the Senate shall rule out of order any 
conference committee report which is in violation of any of the provisions and 
limitations contained in these rules. (Former Rule 96(j)) 

ARTICLE XIII 
COMMITTEE OF THE WHOLE SENATE 

RESOLVE INTO COMMITTEE OF THE 
WHOLE SENATE 

Rule 13.01. It shall be in order for the Senate at any time after bills 
and resolutions have been called to resolve itself into a Committee of the Whole 
Senate. (Former Rule 97) . 

Editorial Note 

A motion to resolve the Senate into a Committee of 
the Whole immediately requires only a majority vote, 
inasmuch as it is equivalent to a motion to recess (43 SJ. 
Reg. 1559 (1933)). 

CHAIR OF COMMITTEE OF THE 
WHOLE SENATE 

Rule 13.02. In forming a Committee of the Whole Senate, the 
President shall leave the chair and shall appoint a chair to preside in committee. 
(Former Rule 98) 

98 

  

5 
3 

: | 
] 

Ed 
3 :      



   

  

Rule 13.03 

  

RIGHT OF LIEUTENANT GOVERNOR TO DEBATE AND VOTE IN COMMITTEE 
OF THE WHOLE SENATE 

Rule 13.03. When in Committee of the Whole Senate, the President shall have the right to debate and vote on all questions. (Constitution, Article IV, Section 16) (Former Rule 99) 

PROCEDURE IN COMMITTEE OF THE 
WHOLE SENATE 

Rule 13.04. The rules of the Senate, as far as applicable, shall be observed in Committee of the Whole Senate. (Former Rule 100) 

DEBATE AND AMENDMENTS 

the report, the bill shall again be subject to be debated and amended or committed before a question to engross it be taken. (Former Rule 101) 

Editorial Note 

No journal is kept by the Journal Clerk of the proceedings of the Senate when in Committee of the Whole. 

99 

   



9TH STORY of Level 1 printed in FULL format. 

Copyright 1993 The Dallas Morning News 

THE DALLAS MORNING NEWS 

March 30, 1993, Tuesday, STATE EDITION 

SECTION: NEWS; Pg. 1A 

LENGTH: 1196 words 

HEADLINE: Republicans leave Senate to block suit’s settlement; 

GOP opposes ratifying judicial selection method 

BYLINE: Terrence Stutz, Christy Hoppe, Austin Bureau of The Dallas Morning 

News 

DATELINE: AUSTIN 

KEYWORD: 93 

BODY 

Republicans, in a maneuver recalling the "Killer Bees’ 

incident of 1979, skipped out of the Senate Monday to block action on a 

proposed settlement ,of a judicial selection lawsuit against the state. 

As the Senate was preparing to convene Monday morning, several GOP 

senators went into a closed-door caucus after learning that Democrats 

were ready to pass a resolution supporting a judicial selection plan 

opposed by Republicans. 

Moments later, after a roll call was taken, Lt. Gov. Bob Bullock 

announced that the 31-member Senate could not convene because it lacked 

a quorum -- at least 21 senators. All but two of the Senate’s 13 

Republicans and one Democrat were absent. 

"I think we have got a stalemate between the Democrats and the 

Republicans over judicial re-districting,’ Mr. Bullock said afterward. 

"Emotions are running very high on both sides of the issue. ’ 

Mr. Bullock said the Senate is "on the verge’ of a political 

standoff similar to the much-publicized "Killer Bees’ episode, when 

12 Democratic senators hid out for five days to kill a presidential 

primary bill pushed by supporters of John Connally and Ronald Reagan. 

"It is something I really didn’t want,’ he said of the partisan 

stalemate. 

"I think this is a bad sign. I feel badly about it. ’ 

EXHIBIT 
Republicans said they are prepared to do whatever it takes to 

prevent action on the resolution, which would ratify a judicial "oe IK 

selection settlement worked out by Attorney General Dan Morales. 

LEXIS-NEXIS €= LEXIS-NEXIS = LEXIS-NEXIS €= 
Services of Mead Data Central, Inc. 

   



® » PAGE 3 

THE DALLAS MORNING NEWS, March 3D, 1993 

  

"We are not going to go for this, period,’ said Sen. David Sibley, 

R-Waco, insisting that Republicans did not intend to keep the Senate 

from meeting Monday. 

"We were in caucus trying to decide what to do, and they 

adjourned. ’ 

However, Mr. Sibley called the Democratic proposal "another deal 

done in the dark hours. ’ 

He said Democrats were ready to skirt Senate rules and act on the 

judicial resolution by majority rather than the normal two-thirds vote. 

With 18 members, Democrats can muster a majority of the chamber, 

but some Republicans are needed to get a two-thirds majority. 

The resolution would ratify a court settlement changing the method 

of electing state district judges in nine urban counties. Under the 

proposal, most judges would be elected in small districts within 

counties rather than countywide. 

The settlement was worked out in the wake of court rulings that 

found that the existing countywide system discriminates against blacks 

and Hispanics. 

Blacks and Hispanics make up 37 percent of the population in Texas 

but only 13 percent of the judges. 

Republicans oppose the Morales settlement, contending that the 

Legislature instead should consider a merit selection system in which 

judges are appointed by the governor, then face regular retention 

elections. 

GOP senators said they were considering their options for Tuesday, 

whether to again prevent a quorum or to filibuster the measure. 

Under Senate tradition, any senator can filibuster -- or 

continuously speak against a bill -- as long as he or she can hold the 

floor. 

"I am not going to rule out anything,’ Mr. Sibley said. 

However, there was movement among Democrats Monday evening to pull 

the resolution off the Senate floor and send it back to committee so 

the chamber can work on other legislation while the two parties try to 

resolve their differences. 

Sens. Rodney Ellis, D-Houston, and Steve Carriker, D-Roby, sponsors 

of the resolution, voiced disappointment over the Republican blockade. 

"This has nothing to do with party. It has everything to do with 

race,’ Mr. Ellis said. "It is a fairly simple issue, whether or not in 

1993 we believe that the Texas judiciary ought to be integrated and 

ought to be reflective of all people in Texas. 

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THE DALLAS MORNING NEWS, March 30, 1993 

  

PAGE 4 

  

"The Texas judiciary is the last bastion of while male domination 
in the public sector in Texas, and I think it is time we go about the 
business of changing that. ’ 

Mr. Carriker said he did not believe Republicans would ever support 

the resolution. 

But he raised the possibility of a majority of senators signing a 

document indicating they support the settlement that would avoid a 

Senate vote on the issue. 

"We'll see whether it is necessary to press ahead in the Senate. I 

would hope it is not,’ he said. 

Sen. Florence Shapiro of Plano was one of two Republicans on the 

Senate floor for the quorum call. The other was Chris Harris of 

Arlington. 

Ms. Shapiro said she would have joined the Republicans except that 

she had several constituents from Kaufman County who were visiting the 

Senate chamber and were scheduled to receive a resolution. 

Ms. Shapiro said Republicans are united against the concept of 

district election of judges. 

"This is one of those stands I am confident that we are in the 

right on,’ she said. "I think you are going to see a lot of politics 

played out in the next several days. ’ 

Meanwhile, Texas Supreme Court Chief Justice Tom Phillips confirmed 

Monday that he has retained outside counsel to represent him in the 

judicial selection case, which is before the 5th U.S. Circuit Court of 

Appeals. 

Justice Phillips, a defendant in the suit, will be represented 

before the 5th Circuit by well-known Houston lawyer Joe Jamail. 

"I felt I would be better served by having my own attorney from 

this point on,’ the Republican chief justice said, noting that Mr. 

Morales did not not consult him about the proposed settlement. 

Although 11 of the Republican senators did not show up for the 

quorum call Monday, four had excused absences and were out of town. 

In the House, the proposed settlement of the judicial lawsuit 

sparked a vote by the Republican Caucus and in the Judicial Affairs 

Committee where a resolution urging Mr. Morales to settle the suit 

narrowly passed, 6-5. Six Democrats voted for the resolution, but two 

Democrats joined three Republicans to oppose it. 

Committee Chairwoman Senfronia Thompson, D-Houston, said the 

resolution would be substituted on the House floor by a stronger 

resolution that endorses Mr. Morales’ proposed settlement. 

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THE DALLAS MORNING NEWS, March 30, 1993 
    

The resolution was immediately condemned by the 58-member House 

Republican Caucus, which voted unanimously to oppose it. 

Ms. Thompson criticized that vote, saying, "I think it’s just 

another demonstration that they want to hold on to the last bastion of 

segregation in the judicial system. ’ 

However, House GOP Caucus Chairman Tom Craddick of Midland denied 

Republican members would try to avoid the vote by boycotting the House, 

like Republicans did in the Senate. 

"We think (Mr. Morales) ought to be over there fighting to uphold 

the Legislature’s position in the 5th Circuit and not go around it and 

do what he wants to do,’ said Mr. Craddick. "Besides, our group as a 

whole does not feel like the plan laid out is a reasonable plan. ’ 

A 58-vote bloc would not defeat the resolution. But if the 

redistricting of the judicial system must be done through a constitutional 

amendment, the Republicans could exert considerable 

clout. A constitutional amendment requires a two-thirds vote of both 

houses. 

Staff writer Sylvia Moreno contributed to this report. 

GRAPHIC: PHOTO: Lt. Gov. Bob Bullock discusses GOP senators’ action Monday 

that prevented voting on a resolution supporting a judicial selection plan 

opposed by Republicdns. (AP) ; LOCATION: .NR(C). : 

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2ND STORY of Level 1 printed in FULL format. 

PAGE 6 

  

Copyright 1993 The Dallas Morning News 

THE DALLAS MORNING NEWS 

March 31, 1993, Wednesday, STATE EDITION 

SECTION: NEWS; Pg. 29A 

LENGTH: 945 words 

HEADLINE: Senators strike truce after one-day standoff 

BYLINE: Terrence Stutz, Anne Marie Kilday, Staff Writers of The Dallas Morning 

News 

DATELINE: AUSTIN 

KEYWORD: 93 

BODY 

Senate Democrats struck a temporary truce with Republicans 

on Tuesday, putting off action on a judicial election proposal that 

prompted GOP senators to boycott the chamber. 

Democratic sponsors of a resolution calling for settlement of the 

state’s judicial selection lawsuit agreed to send the measure back to 

committee on Tuesday, ending a day-old standoff with Republicans. 

GOP senators on Monday met in a closed-door caucus just as the 

Senate was preparing to meet. The action left the chamber without a 

quorum and it was forced to adjourn for the day. Thirteen of the 

senators are Republicans; 18 are Democrats. 

Republicans said they were trying to head off a Democratic effort 

to approve a settlement in the judicial selection case. The agreement, 

worked out by Attorney General Dan Morales, is bitterly opposed by 

Republicans. 

"We do not want to lock down the progress of the Senate on all 

kinds of legislation over a single issue,’ explained Sen. Steve 

Carriker, D-Roby, after he moved to send his resolution back to 

committee Tuesday. 

Mr. Carriker said the measure would be heard by the Senate meeting 

as a committee of the whole on Thursday. 

But Mr. Morales said Tuesday that lawmakers should proceed 

cautiously in considering the measure. 

"In terms of any time sensitivity there is no need for the Senate EXHIBIT 
or the House to pass this thing today,’ the attorney general said in 

Washington, where he attended several meetings. 
"7.2! 

  

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PAGE 7 

  

Mr. Morales said the state has until the week of May 24, when the 

state’s appeal of the judicial selection case is scheduled before the 

5th U.S. Circuit Court of Appeals in New Orleans. 

"There is no need for the Legislature to act with any degree of 

haste,’ Mr. Morales said. 

"This will amount to the biggest change we’ve seen structurally in 

our judicial system, perhaps ever. We ought not make those decisions in 

a haphazard way. ’ 

A spokesman for Lt. Gov. Bob Bullock said the Senate will press 

ahead on the issue. 

"It is the intention of the Senate to consider the resolution on 

Thursday in an effort to bring about a settlement as soon as possible,’ 

said spokesman Sydney Rubin. "Gov. Bullock believes the state of Texas 

has been in the courts on this issue for far too long. ’ 

Mr. Morales said he supports the terms of the proposed settlement 

because it would give minorities better representation in the state 

judiciary. 

The settlement would change the method of electing state district 

judges in nine urban counties, including Dallas and Tarrant counties. 

Under the proposal, most judges would be elected in small, 

single-member districts within counties rather that countywide. 

The settlement was worked out in the wake of court rulings that 

found the current, countywide system discriminates against blacks and 

Hispanics. 

Mr. Morales said it is "unacceptable’ that out of 59 state district 

judges in Harris County, only two are African-American. 

"We believe it is imperative that we give the minority community a 

real sense that they have a stake, a real personal stake, in our system 

of justice,’ the attorney general said. 

"Because of some high profile prosecutions that have ethic or 

racial overtones, I think it is very, very important that we don’t see 

in Dallas or Houston anything similar to what occurred in Los Angeles 

last year. ’ 

Republicans insist that Mr. Morales’ plan is not the answer to the 

problem. They have continued to call for a new system under which 

judges would be appointed instead of elected. 

"This is not the way to do business,’ said Sen. Jerry Patterson, 

R-Pasadena. 

Mr. Patterson took issue with arguments that judges should be 

elected from districts, just as legislators are. 

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THE DALLAS MORNING NEWS, March 31, 1993 

"A legislator cannot take your life or your property or enjoin you 

from doing something,’ he said. "A legislator can’t do those things, 

but a judge has life and death authority over a citizen, and that is a 

fundamental difference. ’ 

But Sen. Rodney Ellis, D-Houston, one of the sponsors of the Senate 

resolution supporting Mr. Morales, said any new plan must address race. 

"The crux of the matter of the lawsuit is racial discrimination -- 

no way to tiptoe around that,’ he said. "If there is an appointive 

system, we must have clear language about seats being guaranteed for 

minorities. '’ 

Mr. Ellis also said he does not believe Texans are ready to give up 

their right to elect judges. 

Meanwhile, the idea of having Democrats sign a document indicating 

that they support the Morales plan seemed to be gaining support on 

Tuesday. By signing such a letter of support, Democrats could avoid a 

floor fight with Republicans, who have indicated they may filibuster or 

prevent a quorum. 

As a condition of settlement of the lawsuit, Mr. Morales has said 

that a majority in both houses of the Legislature must endorse the 

proposal. 

"There is a question about the majority will,’ Mr. Bullock said. 

"How is that expressed? Does it have to be by resolution? What about 

the majority of them signing something? ’ 

Mr. Carriker said a letter signed by a majority of the Senate might 

work. 

"I think General Morales might be just as comfortable with that as 

with official action of the Senate,’ he said. 

The senator also said he is optimistic that the resolution can be 

sent back to the Senate floor by next week. 

"I'm not sure what the Republicans will do,’ he added. "They have 

been adhering very strongly to old policies that have prevented 

minorities from achieving electoral parity in the courts. 

"They look a lot like George Wallace standing in the doorway of the 

university barring the black students. ’ 

GRAPHIC: PHOTO(S): State Sen. Bill Sims, D-San Angelo (left) talks with Sen. 

Mike Moncrief, D-Fort Worth, (center) and Sen. David Sibley, R-Waco, Tuesday in 

Senate chambers in Austin. The Senate returned to business as usual Tuesday 

after early adjournment Monday because it lacked a quorum. (Associated Press) 

NOTES: A shorter version of this article appeared in the Home Final edition on 

page 36A. 

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