Response to Appellant Entz's Motion for Establishment of Expedited Briefing Schedule

    THE ATTORYEY GENERAL 
OF TEXAS 

January 25, 1990 
AIM MM ATTOX 

ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
Gilbert Ganucheau, Clerk 
Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

  

Re: LULAC v. Mattox, No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced matter are the 
original and three copies of a Response to Appellant Entz's Motion for 
Establishment of Expedited Briefing Schedule. 

Sincerely, 

Special Assistant Attorney General 

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

cc: Counsel of Record 

S12/16:3=2100 SUPREME COURT BUILDING AUSTIN, TEXAN 78711-2518  



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. on

 
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RESPONSE TO APPELLANT ENTZ'S MOTION FOR ESTABLISHMENT 
OF EXPEDITED BRIEFING SCHEDULE 

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

responds as follows to the motion to establish a briefing schedule: 

1. The Attorney General does not oppose the motion; 

however, he does assume that the schedule can be established in a 

manner that does not interfere with the state law certification which 

he sought in a motion filed on January 25, 1990. Failure to definitively 

resolve the merits of the state law issue raised through the 

certification motion prior to addressing the merits of this case 

threatens to undo whatever benefits might ensue from granting the 

briefing schedule motion. 

2. While not opposing the motion, the Attorney General also 

is anxious that it not occur under a possible misapprehension of the = 

state of the law in this area. Judge Entz's motion assumes at two 

different points that the Texas Legislature is disabled from developing 

-a legislative remedial plan addressing the violations found by the 

district court on November 8, 1989, without taking the route of a state 

constitutional amendment. This proposition is far from self-evident. 

 



  

First, the proposition assumes that, even in the absence of the 

district court's November 8th liability determination, some potential 

changes in the method of selecting state district judges in Texas (such 

as elections from smaller than countywide districts) would require a 

state constitutional amendment before they could be implemented. 

Treating for the nonce the first assumption as valid, there is a second 

assumption behind the proposition -- the assumption that such a 

legislative remedial plan would have to go the constitutional 

amendment route before submission to the Department of Justice and, 

after that, to the district court. Extant authority can be read as 

making it unnecessary to take that route in the circumstances of this 

case. See Wise v. Lipscomb, 437 U.S. 535 (1978); Burns v. 

Richardson, 384 U.S. 73 (1966). It is at least possible to read these 

cases as holding that, without taking the state constitutional 

amendment route that would be required under state law, a state 

legislature can submit a valid remedial plan to which a federal court 

must give deference if the federal court already has found a violation of 

vote dilution prohibitions. 

The issue is a difficult and delicate one, too much so to be 

implicitly decided through the establishment of something as 

mundane as a briefing schedule. The Attorney General is not prepared 

to agree at this point at any rate that the state legislature must go the 

constitutional amendment route before it can submit a valid remedial 

plan to address the violations found by the district court. 

3. The discussion of mootness in Judge Entz's motion also 

assumes too much. While legislative action certainly may moot a voting 

rights case, see, e.g., Allen v. Johnson, 413 F.2d 1218 (5th Cir. 1969), 

2. 

 



  

it is not accurate to posit as a legal fact of life that they necessarily do 

so. It is not difficult to envision a state remedial plan, whether it has 

taken the constitutional amendment route or not, which detonates 

automatically upon a final judicial disposition of the voting rights case 

which results in a finding that the challenged electoral system does 

not violate federal law after all. That is, there can be provisional 

legislative remedies. 

CONCLUSION 
  

Expedition seems appropriate in this case. In establishing the 

briefing schedule, however, the Attorney General urges the Court to 

keep the foregoing matters in mind. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

  

EH 

Cdsie. rol, 
RENEA HICKS Ee 
Special Assistant Attorney General 

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 

 



  

CERTIFICATE OF SERVICE 

I certify that on this 25th day of January, 1990, I sent a copy of 
the foregoing document by first class United States mail, postage 
prepaid (or overnight courier if indicated by *) to each of the 
following: William L. Garrett, Garrett, Thompson & Chang, 8300 
Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest 
Voter Registration & Education Project, 201 N. St. Mary's, Suite 521, 
San Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense and 
Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, New 
York 10013; Gabrielle K. McDonald, 301 Congress Avenue, Suite 2050, 
Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, Baab & 
Cloutman, P.C., 33C1 Elm Street, Dallas, Texas 75226-1637; .I. Eugene 
Clements, Porter & Clements, 700 Louisiana, Suite 3500, Houston, 
Texas 77002-2730; Robert H. Mow, dJr., Hughes & Luce, 2800 
Momentum Place, 1717 Main Street, Dallas, Texas 75201*; John L. 
Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002; and Seagal V. Wheatley, Oppenheimer, 
Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San 
Antonio, Texas 78205. 

[dai Lee). 
  

Renea Hicks