Reply to Response to Motion to Certify or Disqualify Counsel

    Tir ATTORIEY EI MKRAL 

On TIE AS 

JIM RIATTOX 
ATTORNEY GENERAL 

February 28, 1990 

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 cause are the original and 

three copies of a Reply to Response to Motion to Certify or Disqualify 

Counsel. 

Sincerely, 

oy ben Wich, 
Renea Hicks 

Special Assistant Attorney General 

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

cc: Counsel of Record 

SI12/A463=2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548 

 



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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REPLY TO RESPONSE TO MOTION TO 
CERTIFY OR DISQUALIFY COUNSEL 

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

as follows to the Response to Motion to Certify State Law Question or, 

Alternatively, to Disqualify Counsel, which was filed by self-designated 

independent counsel for eight of the thirteen members of the state Judicial 

Districts Board ("Chapman, et al.) who were official-capacity state defendants 

in the district court: 

1, Chapman, et al., concede that they are before this Court only as 

officials of the State of Texas and that they expect the State of Texas to pay 

any attorney fees occasioned by their unauthorized retention of private 

counsel over the objections of the Texas Attorney General. Such payment is 

not authorized. General Appropriations Act, 71st Leg., Art. V, § 41 at V-69 

(no agency of the state government may expend appropriated funds "to . . 

defend itself against any legal action without the consent of the Attorney 

General"). 

The concession also highlights one of the several reasons why the 

federal courts must defer to state law in determining who is authorized to 

represent the state and its officials -- and here no one has disputed the fact  



  

that they are one and the same.! Compulsory exposure of the state to 

additional financial liability is not the business of federal courts. Under our 

federal structure, states retain the authority to choose the extent of 

resources they want to devote to the defense of lawsuits against them; they, 

not the federal courts, choose how many lawyers to assign to a case or 

whether to appeal a case. The argument by Chapman, et al., as well as the 

other state officials seeking to have this Court aid them in their efforts to 

skirt state law reduces to this irony: Federal courts may compel states to 

resist federal encroachments. The position, of course, is insupportable. 

2. Supreme Court authority at least implicitly recognizes the 

insupportability of the argument; it explicitly refutes the bald assertion by 

Chapman, et al., that the authority of independent counsel to represent the 

state through its officials is not governed by state law: 

The allocation of authority among state officers to 
represent the State . . . is, of course, wholly a matter 
of state concern. 

New York v. Uplinger, 467 U.S. 246, 247-48 n.1 (1984) (emphasis added). 

Focusing, as Chapman, et al., have done, on the Court's undoubted power to 

determine who may represent whom is focusing on a matter not even in 

dispute. The Attorney General is invoking that very authority through the 

motions under consideration. The real focus must be on the legal standard 

which governs the Court's exercise of that authority. The Supreme Court 

has directed that, in the context of representation of the state, state law 

provides the standard. Moreover, the standard here is clear. See, e.g., 

  

1 Will v. Michigan Department of State Police, 109 S.Ct. 2304, 2311 (1989); Karcher v. 
May, 108 S.Ct. 389, 393 (1987); Diamond v. Charles, 476 U.S. 54, 57 n.2 (1986); Kentucky v. 

Graham, 473 U.S. 159, 165-66 (1985). 

 



  

United States v. Texas, 680 F.2d 356, 368 n.16 (5th Cir. 1982) (the 

Attorney General has the exclusive right to represent state agencies).? 

3. Chapman, et al., ignore the dilemma posed by their 

irreconcilable arguments that: (a) certification is inappropriate here 

because the Texas Supreme Court's answer to the question "may"? not be 

determinative of this case; and (b) the Attorney General faces a "serious 

conflict of interest” impeding representation of the views of some defendant 

state officials. If the conflict is as serious as depicted, then the 

representation question obviously "may" be determinative of the outcome of 

this case. Otherwise, what is all the fuss about? Chapman, et al., cannot 

have it both ways. Either the conflict does not exist (and, therefore, their 

retention of "independent counsel" is unwarranted), or it threatens the 

case's outcome (and, therefore, is appropriate for certification, assuming the 

matter is not already definitively settled in the Attorney General's favor). 

Either way, the Attorney General's motion must be granted. 

The dilemma itself arises from a mistaken underlying assumption. 

The state is indisputably the real defendant here. The very essence of the 

Attorney General's duty is to present the state's position here, not the 

widely disparate views of its many interested officials, with their myriad 

policy views on the way the state judiciary should be configured.# There 

  

. The Attorney General's request for certification to the Supreme Court of Texas is 
pertinent only if the Court feels that clarity is lacking. 

3 See TEX. R. APP. P. 114(a). Chapman, et al., inexplicably convert the operative word to 
"must" in their certification discussion. 

4 They could insure their own views by intervening in their personal capacity or seeking 
the Attorney General's permission to file amicus curiae briefs through the same "independent 
counsel" who simply ignored state constitutional law in elbowing their way into this Court 
purportedly on behalf of state officials. 

 



simply is no conflict. The state's position before this Court must be 

indivisible. 

CONCLUSION 
  

Even though the merits of this case have been unaffected by the 

matters at issue here, the silent usurpation of the Attorney General's 

constitutional authority that has thus far been countenanced is not harmless. 

Under Supreme Court law and clear authority from both this Court and the 

Supreme Court of Texas, the Court's actions in permitting continuing daily 

derogations of the Attorney General's authority by Chapman, et al., and 

others is beyond the boundaries set for federal courts by our federal system. 

Each day of the excursion beyond federalism's bounds compounds the harm. 

The Attorney General, on behalf of the State of Texas, urges the Court to 

promptly grant his motion to certify or disqualify. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Co 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

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

  

5 Besides, even accepting for argument's sake that the state's position is irrelevant and 
only each nominal defendant's view is relevant, the Attorney General faces no legally 
cognizable conflict of interest. A review of the briefs on file with the Court will demonstrate 
that the real issues in this case are being fully litigated by the Attorney General on the state's 
behalf. There is a sense that the conventional wisdom is otherwise but, with all due respect, the 
conventional wisdom on this matter is ludicrously misguided. 

we  



  

CERTIFICATE OF SERVICE 

I certify that on this 28th day of February, 1990, I sent a copy of the 
foregoing document by first class United States mail, postage prepaid 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., 3301 Elm Street, 
Dallas, Texas 75226-1637; J. Eugene Clements, Porter & Clements, 700 
Louisiana, Suite 3500, Houston, Texas 77002-2730; Robert H. Mow, Jr., 
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; Walter L. Irvin, 5787 South 
Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; James 
George, Jr., Graves, Dougherty, Hearon & Moody, P.O. Box 98, Austin, Texas 
78767; Paul Strohl, 100 Founders Square, 900 Jackson Street, Dallas, Texas 
75202; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 

see eels, ents oS 
  

m nea Hicks 

 



JIM MATTOX 
ATTORNEY GENERAL 
P. 0. BOX 12548 
AUSTIN, TEXAS 

78711-2548 

Sherrilyn A. Ifill 
NAACP Legal Def. & Educ. Fund, Inc. 
99 Hudson St., 16th Floor 
New York City, NY 10013