Chief Justice Thomas R. Phillips' Response in Opposition to Notice of Nonsuit

    JAMAIL 8% KOLIUS 

ATTORNEYS AT LAW 

ONE ALLEN CENTER 
JOSEPH D. JAMAIL DAHR JAMAIL 

500 DALLAS STREET SUITE 3434 
GUS KOLIUS 

DAVID J. BEBOUT HOUSTON, TEXAS 77002-4793 

JANET PIGNATARO EVANS (713) 651-3000 NAT B. KING 

FRANK M. STAGGS, JR. COUNSEL 
FAX (713) 651-1957 

May 27, 1993 

Hon. Richard E. Windhorst, Jr. BY FEDERAL EXPRESS 
Clerk, U.S. Court of Appeals 
For the Fifth Circuit 
109 U. S. Court of Appeals Courthouse 
600 Camp Street 
New Orleans, Louisiana 70130 

  

Re: League of United Latin American Citizens, et al., Plaintiffs-Appellees, v. 
Attorney General of Texas, et al., Defendants-Appellants; Cause No. 90-8014 
in the United States Court of Appeals for the Fifth Circuit. 

Dear Mr. Windhorst: 

Enclosed for filing is the original and eight copies of Chief Justice Thomas R. 
Phillips’ Response in Opposition to Notice of Nonsuit. 

Please stamp the additional copy of this letter with the clerk’s file stamp showing 
date and time of filing, and return same to us in the enclosed envelope. 

Thank you for your assistance. 

Yours very truly, 

;jmg 
\lulac\1377 

CC; All Counsel of Record - 
Federal Express or hand delivery 

Chief Justice Thomas R. Phillips - 
Federal Express  



UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiff-Appellees, 

VS. NO. 90-8014 

ATTORNEY GENERAL 
OF TEXAS, et al., 

Defendants-Appellants. LO
R 

LO
R 

LO
N 

UI
 

LO
R 

LO
R 

OR
 

LO
R 

LO
R 

CHIEF JUSTICE THOMAS R. PHILLIPS’ 
RESPONSE IN OPPOSITION TO NOTICE OF NONSUIT 
  

  

TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE FIFTH 
CIRCUIT: 

NOW COMES Defendant Chief Justice Thomas R. Phillips, Chief Justice of the 

Supreme Court of Texas and Chair of the Texas Judicial Districts Board, filing this 

Response in Opposition to Notice of Nonsuit, and would respectfully show the Court as 

follows: 

¥ On or about May 24, 1993, Plaintiffs and Plaintiff-Intervenors filed a 

Notice of Nonsuit of the Texas Judicial Districts Board ("the Board") as a party to this 

lawsuit on the basis that it was "an unnecessary party to this litigation." Notice at p11. 

to, Chief Justice Thomas R. Phillips responds to this Notice in his official 

capacity as ex officio Chair of the Texas Judicial Districts Board, and speaks only for 

himself, as Plaintiffs named him in their Complaint. 

THIS NOTICE OF NONSUIT IS ILLEGAL PURSUANT TO RULE 41 OF THE 
FEDERAL RULES OF CIVIL PROCEDURE. 
  

  

3 Plaintiffs and Plaintiff-Intervenors cannot dismiss the Chief Justice, if that 

is what they are trying to do by this nonsuit, without order of the court. Rule 41 (a)(1) 

of the Federal Rules of Civil Procedure clearly states that an action may be dismissed by 

plaintiff without order of the court only 

\lulac\1376 

 



  

"by (i) filing a notice of dismissal at any time before service 
by the adverse party of an answer or of a motion for 
summary judgment, whichever first occurs, or (ii) by filing a 
stipulation of dismissal signed by all parties who have 
appeared in this action." 

To begin with, First Defendant Chief Justice Thomas R. Phillips, in his capacity as Chair 

of the Texas Judicial District Board, has not only answered in this cause, but was allow 

to address this Court at the en banc hearing on May, 24, 1993. Secondly, Plaintiffs and 

Plaintiff-Intervenors Notice was not signed by all parties who have appeared in this 

action -- only by Plaintiff, Plaintiff-Intervenor Houston Lawyers Association, and 

Plaintiff-Intervenor Jessie Oliver. 

4. Plaintiffs and Plaintiff-Intervenors therefore have no standing to file a 

notice of nonsuit in the cause because they have not complied with Rule 41 (a)2) of the 

Federal Rules of Civil Procedure, which clearly states that "[e]xcept as provided in 

paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the 

plaintiff’s instance save upon order of the court or upon such terms and condition as the 

court deems proper." 

WHEREFORE, PREMISES CONSIDERED, Chief Justice Thomas R. Phillips 

respectfully prays that this Court strike Plaintiffs’ and Plaintiff-Intervenors’ Notice of 

Nonsuit, and for other relief to which the Chief Justice may be entitled. 

\lulac\1376 2 

 



Respectfully submitted, 

Jamail & Kolius 

500 Dallas Street, Suite 3434 
Houston, Texas 77002-4793 
(713) 651-3000 
Telecopy: (713) 651-1957 

INDEPENDENT COUNSEL FOR 
DEFENDANT THOMAS R. 
PHILLIPS, CHIEF JUSTICE OF THE 
SUPREME COURT OF TEXAS AND 
CHAIR OF THE JUDICIAL 
DISTRICTS BOARD 

CERTIFICATE OF SERVICE 
  

I certify that on the 27th day of May, 1993, I sent a copy of the foregoing 
document by Federal Express to each of the following: 

Hon. Dan Morales 
Attorney General 
Price Daniel, Sr. Building 
Austin, Texas 78701 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas 
Suite 800 
Dallas, Texas 75225 

Ms. Cherrilyn A. Ifill 
NAACP Legal Defense & Educational 
Fund, Inc. 

99 Hudson Street, 17th Floor 
New York, New York 10013 

Mr. Rolando Rios 
Suite 1024, Milam Building 
115 E. Travis Street 
San Antonio, Texas 78205 

\lulac\1376 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
1717 Main Street 

Suite 2800 

Dallas, Texas 75201 

Ms. Seagal W. Wheatly 
Wheatly & Sharpe 
Suite 1650, Frost Bank Tower 
100 West Houston 
San Antonio, Texas 78205 

Mr. E. Brice Cunningham 
777 South R. L. Thornton Frway. 
Suite 121 
Dallas, Texas 75203 

Ms. Jessica Dunsay Silver 
Department of Justice 
P. O. Box 66078 
Washington, D.C. 20035-6078  



Ms. Gabrielle K. McDonald 
7800 N. Mopac 
Suite 215 

Austin, Texas 78750 

Mr. Edward B. Cloutman, III 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 
3500 NCNB Center 
P. O. Box 4744 
Houston, Texas 77210-4744 

\lulac\1376 

Mr. Tom Maness 

Jefferson County Courthouse 
Beaumont, Texas 77701 

Russell W. Miller 

3300 Texas Commerce Tower 

Houston, Texas 77002