Brief of Amici Curiae Opposing Joint Motion to Remand for Rehearing on Effectuation of Settlement

    9 
LiopDELL SAPP ZIVLEY HILL & LABOON, 

A REGISTERED LIMITED LIABILITY PARTNERSHIP 
INCLUDING PROFESSIONAL CORPORATIONS 

ATTORNEYS 
3400 TEXAS COMMERCE TOWER 

7200 LAVACA 
1200 TEXAS COMMERCE TOWER 

HOUSTON, TEXAS 77002 

2200 ROSS AVENUE SUITE 80 (713) 226-1200 
o 

DALLAS, TEXAS 75201 
TELEX 76-2616 AUSTIN, TEXAS 78701 (214) 220-4800 TELECOPIER (713) 223-3717 (512) 404-2000 

TELECOPIER (214) 220-4899 
TELECOPIER (512) 404-2099 

May 19, 1993 

VIA FEDERAL EXPRE 

Mr. Richard E. Windhorst, Jr., Clerk 
United States Court of 
Appeals for the Fifth Circuit 

600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Re: No. 90-8014; League of United Latin American Citizens (LULAC), et al. v. The Attorney General of the State of Texas, et al.; In the United States Court of Appeals for the Fifth Circuit 

Dear Mr. Windhorst: 

Enclosed is the original and twenty copies of the Brief of Amici Curiae Texans for Judicial Election Reform and Robert W. Calvert, Joe R. Greenhill and John L. Hill Opposing Joint Motion to Remand for Hearing on Effectuation of Settlement for filing in the above- referenced matter. Please file the original and nineteen copies and file-stamp one copy and return it to me in the enclosed self-addressed and metered envelope. 

If you have any questions or comments, please call me at (512) 404-2017. Thank you for your assistance. 

Yours truly, 

Kamela Bridges 
Far tha | SPOS 
A wr uae 4 kd fad 

KB/cb 

Enclosures  



  

* 

Mr. Richard E. Windhorst, Jr. 

May 19, 1993 

Page 2 

ce! William L. Garrett 

Rolando Rios 
Sherrilyn A. Ifill 

Gabrielle K. McDonald 
Edward B. Cloutman, III 

Robert H. Mow, Jr. 

Walter L. Irvin 

Susan Finkelstein 

Renea Hicks 
Seagal V. Wheatley 

J. Eugene Clements 
E. Brice Cunningham 

Tom Maness 

Joseph D. Jamail 

Jessica Dunsay Silver 

(cmrrr #P 857 904 377) 

(cmrrr #P 857 904 378) 

(cmrrr #P 857 904 379) 

(cmrrr #P 857 904 380) 

(cmrrr #P 857 904 381) 

(cmrrr #P 857 904 382) 

(cmrrr #P 857 904 383) 
(cmrrr #P 857 904 384) 

(cmrrr #P 857 904 385) 

(cmrrr #P 857 904 386) 

(cmrrr #P 857 904 387) 

(cmrrr #P 857 904 388) 

(cmrrr #P 857 904 389) 

(cmrrr #P 857 904 390) 

(cmrrr #P 857 904 391) 

 



  

   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, 

V. 

THE ATTORNEY GENERAL OF THE STATE OF TEXAS, et al. 

Defendants-Appellants 

  

On Remand 

from the United States Supreme Court 

  

BRIEF OF AMICI CURIAE 

TEXANS FOR JUDICIAL ELECTION REFORM 

AND 

ROBERT W. CALVERT, JOE R. GREENHILL AND JOHN L. HILL 

OPPOSING JOINT MOTION TO REMAND 

FOR HEARING ON EFFECTUATION OF SETTLEMENT 

  

Robert W. Calvert 
919 Congress Avenue 
Austin, Texas 78701 

Russell W. Miller (512) 478-2773 

LIDDELL, SAPP, ZIVLEY, HILL 

& LaBOON, L.L.P. Joe R. Greenhill 

3300 Texas Commerce Tower 98 San Jacinto Blvd. 

Houston, Texas 77002 Austin, Texas 78701 

(713) 226-1199 (512) 322-2500 

ATTORNEYS FOR AMICUS CURIAE, Joha L. Hill, Jr. 

TEXANS FOR JUDICIAL ELECTION 3400 Texas Commerce Tower 

REFORM Houston, Texas 77002 

(713) 226-1230 

 



  

   
No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULACQC), et al. 

Plaintiffs-Appellees, 

v. 

THE ATTORNEY GENERAL OF THE STATE OF TEXAS, et al. 

Defendants-Appellants 

  

BRIEF OF AMICI CURIAE 

OPPOSING JOINT MOTION TO REMAND 

FOR HEARING ON EFFECTUATION OF SETTLEMENT 
  

TO THE HONORABLE COURT OF APPEALS: 

Texans for Judicial Election Reform, together with former Texas Supreme Court 

Chief Justices Joe R. Greenhill, Robert W. Calvert and John L. Hill, Amici Curiae, file this 

brief in accordance with Fed. R. App. Proc. 29 and Local Rule 29 of the Fifth Circuit. 

INTRODUCTION 
  

The Texas Attorney General and the Plaintiffs have agreed among themselves to 

settle this case, and have asked this Court to remand it to the district court in order to 

effectuate their settlement. Amici Curiae respectfully submit that this Court should deny 

 



    

their request. The proposed Settlement Agreement clearly and directly violates Article V, 

Sections 7 and 7a, of the Texas Constitution. 

The Texas Attorney General cannot avoid the valid restrictions imposed upon him 

by the Texas Constitution, even if his plan is endorsed by some of the state’s legislators and 

statewide ollie oilers. Neither this Court nor the district court may allow the Texas 

Attorney General, or any other state officials, to accomplish by decree or consent that which 

the Texas Constitution expressly forbids them from accomplishing by statute. 

STATEMENT OF THE ISSUE 

The Texas Constitution expressly prohibits the Settlement Agreement proposed 

jointly by the Texas Attorney General and the plaintiffs. Tex. Consr. art. V, §8 7, 7a. There 

is no reason for this Court to remand this case to the district court for the purposes of 

effectuating a Settlement Agreement that is illegal under the state’s constitution. 

ARGUMENT 

I. The Proposed Settlement Agreement Violates the Texas Constitution. 

The Settlement Agreement jointly proposed by the Texas Attorney General and the 

plaintiffs provides that: "The at-large election system for the affected courts will be replaced 

by a phased-in plan in which each affected county will be divided into electoral subdistricts. 

... The plan entails electoral subdistricts which are smaller than a county, except for those 

  

district courts not changed by this order." See Exhibit "A", a copy of the proposed 

Settlement Agreement, at p. 2. The Settlement Agreement also provides that: "all 

 



candidates must reside in the county, but not necessarily the electoral subdistricts from 

which they seek election." Settlement Agreement, p. 3. 

In stark contrast to that arrangement, the Texas Constitution provides that: 

Sec. 7. The State shall be divided into judicial districts, with each 
district having one or more Judges as may be provided by law or by this 
Constitution. Each District Judge shall be elected by the qualified voters at 
a General Election and shall be a citizen of the United States and of this 
State, . .., who has resided in the district in which he was elected for two (2) 
years next preceding his election, and who shall reside in his district during 
his term of office .... 

Sec. 7a... 

(i) The legislature, the Judicial Districts Board, or the Legislative 
Redistricting Board may not redistrict the judicial districts to provide for any 
judicial district smaller in size than an entire county except as provided by this 
section. Judicial districts smaller in size than the entire county may be 
created subsequent to a general election where a majority of the persons 
voting on the proposition adopt the proposition "to allow the division of 

County into judicial districts composed of parts of 

County." No redistricting plan may be proposed or adopted by the legislature, 
the Judicial Districts Board, or the Legislative Redistricting Board in 
anticipation of a future action by the voters of any county. 

    

Tex. Const. art. V, 88 7, 7a (blanks in original). Clearly, the Texas Constitution prohibits 

the arrangement contemplated in the Settlement Agreement. 

The Texas Attorney General cannot avoid the prohibitions of the Texas Constitution, 

even though he has obtained the endorsement of certain legislators and state-wide office- 

holders. Any amendment or modification to the Texas Constitution requires a two-thirds 

vote in both the Texas House of Representatives and Texas Senate, together with public 

notice, and the majority vote of the state’s citizens. Tex. Const. art. XVII, § 1. Obviously, 

the Attorney General has not met those requirements. As reported in the Joint Motion to 

Remand for Hearing on Effectuation of Settlement, only a bare majority of the state’s  



    

representatives -- not two-thirds -- approved the modifications proposed by the Attorney 

General. A bare majority of the members of a Senate subcommittee also reported approval 

of the proposed modifications, but the Senate has not voted on the report. 

Even if both Houses of the Texas Legislature had approved the Settlement 

Agreement by the required two-thirds vote, and the governor had signed it, the Settlement 

Agreement still could not be effective. The citizens have not voted on the proposed 

modifications, and the Attorney General’s plan would deny them that opportunity. 

In Overton v. City of Austin, 748 F.2d 941, 956-57 (5th Cir. 1984), another case which 

this Court has considered under the Voting Rights Act (the "Act"), the plaintiffs and public- 

official defendants submitted to the district court a joint settlement agreement that would 

have changed the method by which the city elected councilmembers. The method proposed 

in the settlement agreement was inconsistent with the city’s home rule charter. This Court 

held that the district court’s refusal to approve the settlement agreement was not error, 

explaining: 

The court here is being asked to effectuate a substantive result which the 
parties wholly lack the jurisdictional power to bring about by themselves. 
Thus, more is necessarily involved than merely ascertaining whether the 
parties have consented to an ultimate result which is not of itself illegal, 

unreasonable or unfair. Absent a properly grounded judicial determination 

that the present charter provisions are illegal, the consent of the parties 

provides an insufficient basis on which to judicially ordain a different system 
of council election and composition. 
  

  

Overton, 748 F.2d at 956-57 (emphasis added). 

This Court’s reasoning in Overton applies squarely to this case. As long as the 

relevant provisions of the Texas Constitution do not vioiaie the Act, the provisions of ilie 

Settlement Agreement are illegal. 

 



  

   
In Judge Bunton’s opinion, that eventually has led to this appeal, the district court 

expressly acknowledged that the Act did not necessarily require sub-county election districts. 

See League of United Latin American Citizens v. Mattox, et al, No. MO-88-CA-154, 

Memorandum Opinion, p. 6 (November 8, 1989)("Single member districts may or may not 

be the answer if we are to continue to have partisan elections."). Furthermore, even if 

Judge Bunton’s opinion could be wildly interpreted to strike down Texas’ constitutional 

prohibition against sub-county districts for judicial elections, this Court has ruled that: 

the State of Texas Should not be under an injunction or order of this Court 
to effect changes in its system of selecting judges until this Court has finally 
disposed of this appeal on the merits and the mandate has issued. Any other 
orders to the contrary are hereby modified accordingly. 

Order Modifying Stay, League of United Lat American Citizens v. Clements, No. 90-8014 

(5th Cir., March 28, 1990). A divided panel of this Court recently upheld the district court’s 

finding that Texas’ present system of electing judges violates the Act, but the panel did not 

find that the Act required sub-county elections. This Court then vacated the divided-panel 
  

opinion, and set this case for en banc consideration. Accordingly, the Court certainly has 

not determined that the Act requires Texas to elect judges by sub-county districts. 

CONCLUSION   

The Settlement Agreement is illegal under the Texas Constitution. The district court 

could not enter an Order effectuating the Settlement Agreement without holding that the 

United States Constitution requires sub-county judicial elections, thereby nullifying the 

contrary provisions of the Texas Constitution. Such a ruling almost certainly would result 

 



    
in an appeal, bouncing the issue immediately back to this Court. Such a procedural loop 

would not serve any legitimate purpose. 

This Court would best serve the interests of justice by considering the substantive 

issues that are now before it. It should deny the Joint Motion for Remand for Hearing on 

Effectuation of Settlement. 

Respectfully submitted, 

LIDDELL, SAPP, Z1V1EY, HILL 
& LABOON, L.L.P. 

Fy Le 
i ed Ay J 7, A . // 

By: gr. ol 
  

Russell W. Miller 

Texas Bar No. 14112300 

3300 Texas Commerce Tower 

Houston, Texas 77002 

(713) 226-1199 

(713) 223-3717 Telecopier 

ATTORNEYS FOR AMICUS CURIAE, 
TEXANS FOR JUDICIAL ELECTION 
REFORM 

Eto nln 
  

Robert W. Calvert 
Texas Bar No. 03671000 
919 Congress Avenue 
Austin, Texas 78701 

(713) 478-2773 

 



    

  

“Jee R. Greenhill 
Texas Bar No. 00000023 
1600 San Jacinto Center 

08 San Jacinto Blvd. 
Austin, Texas 77001 

(512) 322-2500 

LL WN TELL, 
J [John TL. Hill, Jr. 

z : / / 
4 

; ’ / 
7s / 

A 

  

Texas Bar No. 00000027 

3300 Texas Commerce Tower 
Houston, Texas 77002 

(713) 226-1230 

 



      
CERTIFICATE OF SERVICE 

I certify that this 20th day of May, 1993, I sent a copy of the foregoing document by 
certified mail, return receipt requested, to each of the following: William L. Garrett, 
Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75226, 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., 3301 Elm Street, Dallas, Texas 75226-1637; Robert H. Mow, 

Jr., 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., 201 N. St. Mary’s, Suite 600, San Antonio, 

Texas 78205; Renea Hicks, Special Assistant Attorney General, P. O. Box 12584, Capitol 

Station, Austin, Texas 78711-2548; Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher 

& Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205; J. Eugene Clements, 

Porter & Clements, 3500 NCNB Center, 700 Louisiana Street, Houston, Texas 77002-2730; 

E. Brice Cunningham, 777 South R. L. Thornton Frwy., Suite 121, Dallas, Texas 75203; 

Jessica Dunsay Silver, Department of Justice, P. O. Box 66078, Washington, D.C. 20035- 
6078; Tom Maness, Jefferson County Courthouse, Beaumont, Texas 77701; and Joseph D. 
Jamail, Jamail & Kolius, 3434 One Allen Center, 500 Dallas Street, Houston, Texas 77002- 

Nearvala Budase 
Kamela Bridges 
  

 



  

FINAL 

  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND ODESSA DIVISION 

LEAGUE OF UNITED LATIN 

AMERICAN CITIZENS (LULAC) 
COUNCIL #4434, et al., 

Plaintiffs, 

- HOUSTON LAWYERS 
ASSOCIATION, et al., 

Plaintiff-Intervenors 

Civil Action No. 
VS. MO-88-CA-154 

ATTORNEY GENERAL 

OF TEXAS, et al., 

Defendants 

SHAROLYN WOOD AND 
HAROLD F. ENTZ, 

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Settlement Agreement 
  

Plaintiffs and Plaintiff-Intervenors and the State of Texas, by the Governor of 
Texas, the Lieutenant Governor of Texas, the Speaker of the Texas House of 
Representatives, the Secretary of State, and the Attorney General of Texas, enter into the 
following Settlement Agreement. 

The case has been pending since July 11, 1988. It was tried in September of 1989, 
and since that time has been argued three times before the Court of Appeals for the 
Fifth Circuit, and once before the United States Supreme Court. 

The case is presently set for oral argument before the Fifth Circuit, en banc, for 
the week of May 24, 1993. 

Given the protracted litigation, the costs thereof and the importance of the issues 
to voting rights of all citizens, the parties have reached an agreement that will settle this 
litigation. 

Judicial Selection: Settlement Agreement 
Page 1 
March 24, 1993 

>= EXHIBIT A 

 



   

  

Support for judicial campaign and ethics reform is recommended by the parties 
to this Agreement. Among the proposals that should receive consideration are 
limitations on individual campaign contributions; strict limitations on PAC campaign 
contributions; maximum spending limits per election; additional disclosure 
requirements for judicial candidates and contributors; and tougher enforcement so that 
violators will face severe sanctions. 

Preconditions 

1. This Agreement is conditioned upon and shall not take effect unless it receives 
majority approval of both houses of the Texas Legislature. Failure of the Texas 
Legislature to approve this Agreement renders the Agreement null and void, and in 
such event, the Agreement is inadmissible for all purposes. 

2. Upon approval by a majority of both houses of the Texas Legislature, the 
parties to this Agreement shall collectively notify the Court and move the Court for 
adoption and implementation. 

3. The Plaintiffs and Plaintiff-Intervenors, through their respective counsel, agree 
to assist the State of Texas in preclearing, under Section 5 of the Voting Rights Act, 42 
U.S.C. §1973c, the provisions of this Agreement with the United States Department of 
Justice. 

4. The Plaintiffs and Plaintiff-Intervenors are prevailing parties within the 
meaning of the federal attorney's fees statute, 42 U.S.C. §1988 and 42 U.S.C. §1973(L). 

5. The parties to this Agreement recognize that the Texas Legislature's approval 
of the Agreement enhances the likelihood of its implementation by clarifying the public 
policy and interests of the State of Texas. The parties urge the Texas Legislature to 
promptly approve this Agreement. 

Agreements 
  

1. The at-large election system for the affected courts will be replaced by a 
phased-in plan in which each affected county will be divided into electoral subdistricts. 
Each county will be designated a District Number and each election unit--State 
Representative District, Justice of the Peace Precinct, or County Commissioner Precinct-- 
shall be designated a Subdistrict Place Number. The plan entails electoral subdistricts 
which are smaller than a county, except for those district courts not changed by this 
order. The plan uses existing State Representative District, Justice of the Peace Precinct, 

Judicial Selection: Settlement Agreement 
Page 2 

March 24, 1993 

 



   

  

or County Commissioner Precinct Lines. All election subdistricts used in this plan are 
based on geographic boundaries as they existed on January 1, 1993. 

2. Except for those courts not expressly covered by this Agreement, the State of 
Texas agrees to eliminate the existing at-large system of electing district judges in 
Dallas, Harris, Bexar, Tarrant, Travis, Jefferson, Midland, Ector, and Lubbock Counties, 
in the manner detailed in the Appendix to this Agreement. In Harris, Dallas, Bexar, and 
Jefferson Counties, state district judges will be elected from subdistricts comprised of 
Texas House of Representative Districts; in Tarrant and Travis Counties, state district 
judges will be elected from subdistricts comprised of Justice of the Peace Precincts; and 
in Lubbock, Midland, and Ector Counties, state district judges will be elected from 
subdistricts comprised of County Commissioner Precincts. The electoral scheme for 
some district courts, including those courts currently occupied by Defendant-Intervenor 
F. Harold Entz (the 194th District Court in Dallas County) and by Defendant-Intervenor 
Sharolyn Wood (the 127th District Court in Harris County), are not affected by this Plan 
and continue to be elected at-large. 

3. Each electoral subdistrict will elect one or more district judges as set out in the 
Appendix. Only those voters residing within their respective electoral subdistrict will 
be allowed to vote for their respective district judges. 

4. For the party primaries: elections shall be by place and by majority vote; if no 
candidate receives a majority of votes case, then the position will be filled by a run-off 
election between the two candidates receiving the highest number of votes case for that 
position, all as provided by existing state law. For the general elections, election shall 
be by plurality vote, as provided by existing state law. 

5. Consistent with the Texas Constitution, all candidates must reside in the 
county, but not necessarily the electoral subdistrict from which they seek election. All 
district judges must reside in the county from which they were elected for the entirety 
of their term. If any district judge no longer resides in his/her county, a vacancy shall 
be declared, and the post filled in accordance with state law. 

6. The electoral subdistricts created under this agreement are for the purpose of 
election of state district judges only. No change in jurisdiction or venue rules is made 
oy this Agreement. Consistent with Art. 5 of the Texas Constitution, this Agreement 
will not disturb the existing district lines of the present judicial districts, except to the 
extent that it creates electoral subdistricts within the aforementioned counties for the 
purposes of electing district judges only. 

Judicial Selection: Settlement Agreement 
Page 3 

March 24, 1993 

 



    
7. In the interim before all state district judges in the affected counties are elected 

under this new sub-districting plan, state district judges now in office shall continue to 
hold their elective position until the expiration of their respective terms. 

8. In the interim before all state district judges in the affected counties are elected 
under this new sub-districting plan, state district judges elected to a court for which a 
subject-matter preference is statutorily provided, shall continue to hear cases in 
accordance with that preference until the expiration of their respective terms. 

9. There shall be no right of recusal of judges, based solely upon their election 
under this plan. 

10. The Appendix to this Agreement is part of this Agreement as if fully set forth 
at length herein. 

This Settlement Agreement is entered into among the parties listed below on 
March 24, 1993. 

Judicial Selection: Settlement Agreement 
Page 4 
March 24, 1993 

 



    
   

    

   

  

  

  

COUNSEL OF RECORD: APPROVED: 

¥) Ren V4) poh L (2 7.75 
DAN MORALES ANN W. RICHARDS 
Attorney General Governor 
State of Texas State of Te 

  

    

4 - 

WILLIAM L. GARRETT — BOB BULLOCK N 
ROLANDO L. RIOS Lieutenant Governor | 
Attorneys for Plaintiffs State of Texas 

A ing LA Citta. 
  

  

Rtn, 
EDWARD B. CLOUTMAN, IIIV/jRev=">"" ESE.LANEY — 
E. BRICE CUNNINGHAM by ail Speaker 
Attorneys for Dallas County Texas House of Representatives 
Plaintiff-Intervenors State of Texas 

   
  

IN 
“SHERRILYN A. IFILL 
GABRIELLE K. McDONALD 
Attorneys for Harris County 
Plaintiff-Intervenors 

  

Judicial Selection: Settlement Agreement 
Page 5 

March 24, 1993