Texas's Response in Opposition to Motions for Divided Argument for Respondents

    State of Texas 

DAN MORALES 
ATTORNEY GENERAL 

March 18, 1991 

VIA FEDERAL EXPRESS 
Hon. William K. Suter, Clerk 
Supreme Court of the United States 
One First Street, N.E. 
Washington, D.C. 20543 

Re: No. 90-813, Houston Lawyers’ Ass'n v. Attorney General of 
Texas 
No. 90-974, LULAC vu. Attorney General of Texas 

Dear Sir: 

Enclosed are the signed original and ten copies of Texas's 
Response in Opposition to Motions for Divided Argument for 
Respondents, as well as a Proof of Service. 

icks 
Special Assistant Attorney General 

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

cc: Counsel of record 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 
AN EQUAL EMPLOYMENT OPPORTUNITY EMPLOYER  



  

Nos. 90-813 and 90-974 

IN THE 
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1990 

HOUSTON LAWYERS' ASSOCIATION, et al., 
Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 
Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

TEXAS'S RESPONSE IN OPPOSITION TO MOTIONS FOR DIVIDED 
ARGUMENT FOR RESPONDENTS 

In their official capacities as state officials, the Attorney General 

of Texas, the Secretary of State of Texas, the Chief Justice of the 

Supreme Court of Texas, the Presiding Judge of the Court of Criminal 

Appeals of Texas, and the ten other members of the Judicial Districts 

Board of Texas (collectively, "Texas") respond as follows to the two 

pending motions which seek to divide argument for the respondents 

in the above-referenced consolidated cases: 

1; Texas urges the Court not to divide argument in these 

consolidated cases, in which is challenged the system for electing trial 

. judges. The system was established and is being maintained by the 

Texas Legislature. The respondent state officials, represented by the 

Attorney General of Texas, are parties because of their roles in the 

 



  

administration and enforcement of the state's duly enacted laws for 

the election of Texas trial judges. The two respondent judges did not 

establish the electoral system; other than through the ballot box as 

does every other Texas voter, they have no authority to affect its 

maintenance; and they have no role to play in the challenged system's 

administration and enforcement. 

2. The two respondent judges intervened in this suit only in 

their personal capacities. Neither of them is a class representative; 

they represent their private selves only. Each is represented by 

private counsel, and neither of the private counsel has been cloaked 

with any state authority by any state official. 

Indeed, their standing to be parties in the case, even in their 

personal capacities, is dubious. In the course of unanimously rejecting 

Respondent Wood's belated (and surprising) effort in this very case to 

obtain through court order approximately $400,000 from the 

victorious state for her private attorney's representation of her private 

interests, the en banc Fifth Circuit rather cursorily upheld her 

standing to intervene in her personal capacity. LULAC vu. Clements, 

923 F.2d 365, __ n.1 (5th Cir. 1991) (en banc) (citing the court's 

earlier decision in LULAC v. Clements, 884 F.2d 185, 188 (5th Cir. 

1989), which had held that incumbent judges have no official-capacity 

interest in the case). The Fifth Circuit's holding, according personal- 

capacity standing to incumbent judges in a voting rights case, conflicts 

- with another circuit's denial in a voting rights case of standing to a 

person who sought political office under the challenged electoral 

scheme. Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989). Whether 

the Court would adopt the voting rights standing principle of the Fifth 

2. 

 



  

or the Eighth Circuit is only a matter of conjecture for now; however, 

the conflict between the circuits and the Court's authority to review on 

its own the quasi-jurisdictional question of standing make the 

circumstances here especially compelling for not dividing the 

argument. The Court should not take argument time from the one set 

of public respondents with unquestioned standing and give it to 

private intervenor-respondents whose standing is at best only 

tenuously maintained. 

3. Only two questions involving the role played by Section 2 

of the Voting Rights Act in the election of judges have been presented 

for review in these cases. The first of the two questions also is before 

the Court in the consolidated cases of Chisom v. Roemer, No. 90-757, 

and United States v. Roemer, No. 90-1032, which will immediately 

precede these consolidated Texas cases in oral argument on the 

morning of April 22, 1991. Thus, an hour of argument about Section 

2's relationship to elected judiciaries will have preceded our 

argument. 

4. The disapproving eye which, under its Rule 28.4, the 

Court casts on divided argument should be most piercingly 

disapproving when private parties with no practical role to play in a 

challenged electoral system seek to take argument time from the 

public parties primarily responsible for the challenged system, 

especially when only one interest -- the validity of the current system - 

- - is legitimately at stake for all the respondent parties. Dividing the 

respondents’ argument three ways, as the combined motions would 

have it, would be unthinkably harmful to Texas's position. 

 



  

5. Unfortunately, both the pending motions contain muddled 

and misleading characterizations of the progress of this case. They are 

irrelevant to whether Texas should be able to give its undivided 

attention to arguing the state's case about the state's electoral system; 

however, lest the false signposts mislead the Court (and out of an 

abundance of caution), Texas sets out in the margin a short response 

to the more egregious among the misleading statements.® 

CONCLUSION 
  

That, despite their representation of private interests and 

despite the Attorney General's unbroken appellate success on behalf of 

the state, his co-respondents continue their attack on him even before 

this Court, raises enough serious questions about the role they envision 

themselves playing in responsibly presenting the important issues to 

the Court to deny their motions to fracture the state's oral argument 

time. 

  

: a. Contrary to Respondent Entz's statement, the Attorney General of Texas 
never agreed to "settle" this case. Of necessity, it follows that Respondent Entz's 
perfervid claim that such a settlement would have "destroyed the Texas judicial system" 
also is wrong and misleads the Court. The Attorney General appealed the district 
court's adverse decision before either of the movant intervenors. When the district 
court rejected the former Attorney General's proposed interim plan (covering only one 
set of elections, not all future elections), Texas sought and obtained an emergency stay 
from the Fifth Circuit. 

b. Respondent Wood's elevation of her role through her self-adornment as 
having "principal responsibility” for Harris County issues which she then inaccurately 
describes as playing a "disproportionate role in the evolution" of the case, combined 
with her subtle denigration of the Attorney General of Texas as having only "general 
responsibility” for all ten targeted counties, rewrites the history of this litigation in a 
particularly offensive fashion. 

From the beginning, full responsibility for the defense of this case has rested on 
the Attorney General of Texas. It remains there to this day and has been assumed by the 
new Attorney General, Dan Morales. That the Attorney General has been successful in 
all four written Fifth Circuit opinions 4n this case -- on intervention, on the merits 
before the panel and the en banc court, and on attorney fees -- attests to his having 
borne the responsibility as he was elected to do. It also attests to the emptiness of the 
two private respondents’ continued attacks. 

 



Texas's statewide system of electing trial judges is under attack. 

The two movants and their personal interests play an infinitesimal role 

in the system. The Court's disposition of the case will affect hundreds 

of judges and potential candidates and millions of voters. Texas needs 

all the time available to protect these interests and, therefore, urges 

the Court: (a) to deny the motions to divide respondents’ oral 

argument; and (b) because it is predictable that questions will arise 

about who should argue for respondents if only one is to argue, to 

permit only the Office of the Attorney General of Texas to argue orally 

on behalf of the respondents. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Executive Assistant Attorney 
General 

Cs, nl     

RENEA HICKS* 
Special Assistant Attorney General 

JAVIER GUAJARDO 
Special Assistant Attorney General 

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

(512) 463-2085 

Attorneys for State Respondents 
- * Attorney of Record 

March 18, 1991 -  



  

Nos. 90-813 and 90-974 

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In The 
Supreme Court of the United States 

October Term, 1990 

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HOUSTON LAWYERS' ASSOCIATION, et al., 
Petitioners, 

Vs. 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 
Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

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CERTIFICATE OF SERVICE 
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I, Renea Hicks, a member of the Bar of this Court, hereby certify 

that on this 18th day of March, 1991, a copy of Texas's Response in 

Opposition to Motions for Divided Argument for Respondents in the 

above-entitled consolidated cases was mailed first class United States 

mail, postage prepaid, to each of the following: 

Charles Stephen Ralston 
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(Rep.: Houston Lawyers' Association, Weldon Berry, Alice 
Bonner, Rev. William Lawson, Bennie McGinty, Deloyd Parker, 
and Francis Williams) 

William L. Garrett 
8300 Douglas, Suite 800 
Dallas, Texas 75225 
(Rep.: League of United Latin American Citizens 
(Statewide), LULAC Local Council 4434, LULAC Local Council 
4451, Christina Moreno, Aquilla Watson, Joan Ervin, Matthew W. 
Plummer, Sr., Jim Conley, Volma Overton, Gene Collins, Al 

 



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# Price, Mary Ellen Hicks in her personal capacity, and Rev. James 
Thomas) 

Edward B. Cloutman III 
3301 Elm Street 
Dallas, Texas 75226 
(Rep.: Jesse Oliver, Fred Tinsley, and Joan Winn White) 

Robert H. Mow, Jr. 
Hughes & Luce 
1717 Main, # 2800 
Dallas, Texas 77025 
(Rep.: F. Harold Entz, in his personal capacity) 

Seagal V. Wheatley 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, Texas 78205 
(Rep.: Tom Rickhoff, Susan D. Reed, John J. Specia, Jr., 
Sid L. Harle, Sharon MacRae, and Michael P. Peden, in their 
personal capacities); and 

J. Eugene Clements 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 
(Rep.: Sharolyn P. Wood, in her personal capacity) 

I further certify that all parties required to be served have been 

RENEA HICKS 
Special Assistant Attorney General 

served. 

  

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

Counsel of Record for State 
Respondents