Motion to Strike

    rrr 

THe ATTORNEY GEXERAL 

OF TEXAS 

JiM MATTOX January 6, 1990 
ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
Gilbert Ganucheau 

ATT'N: Eileen Boudin 
Clerk, Fifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

  

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

Dear Ms. Boudin: 

Enclosed for filing in the above-referenced matter are the 
original and three copies of the Texas Attorney General's Motion to 
Strike. 

Sincerely, 
1 > N 

Renea Hicks 
Special Assistant Attorney General 

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

cc: Counsel of Record 

512/463 = 2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548  



  

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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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MOTION TO STRIKE 

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

hereby moves the Court to strike the Notice of Designation of 

Independent Counsel and the Emergency Application for Stay which 

were filed on January 5, 1990, by John L. Hill, Jr., purporting to be 

"independent counsel for defendant George S. Bayoud, Jr., Secretary of 

State." The grounds follow: 

1. The named defendants in the district court are the 

Attorney General of Texas, the Secretary of State of Texas, and the 

members of the Texas Judicial Districts Board, including the Chief 

Justice of the Supreme Court of Texas and the Presiding Judge of the 

Court of Criminal Appeals of Texas. They are defendants only in their 

official capacities. Since the inception of the case, they have been 

represented by the Attorney General of Texas. 

2. On January 5, 1990, without filing a motion to substitute 

counsel, John L. Hill, Jr., filed two pleadings with the district court 

purporting to act as "independent counsel for defendant George S. 

Bayoud, Jr., Secretary of State.” One was a Notice of Appeal and the 

other was a Notice of Designation of Independent Counsel, essentially 

 



  

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identical to the one filed the same day with this Court. The Notice of 

Appeal is ineffective to give this Court jurisdiction because it was filed 

before disposition by the district court of a timely-filed Rule 59(e) 

motion to alter the judgment of January 2, 1990. See FRAP 4(a)(4). 

Simultaneously with the filing of the instant motion to strike, the 

Attorney General is filing a motion to strike the two district court 

filings. 

3. For the reasons set forth below in paragraph 4 and its 

referenced attachments, the accuracy of the allegations in part II of 

the "independent counsel's" attempted designation of counsel is 

irrelevant to the merits of this motion; nonetheless, the Court should 

be aware that the allegations are inaccurate. They prematurely posit 

an unbridgeable schism concerning legal strategies between an 

appointed state official (the Secretary of State) and an elected state 

official (the Attorney General) who is the state's chief legal officer. 

The district court's ruling on the pending Rule 59(e) motion is 

anticipated on Tuesday, January 9th. Until that ruling, a notice of 

appeal of the January 2, 1990, judgment is a nugatory act. The only 

other ruling that could have been appealed thus far is the district 

court's liability decision of November 8, 1989. The Attorney General 

filed a Notice of Appeal of that ruling on December 22, 1989. 

Similarly, the appropriateness of seeking an emergency stay and the 

precise timing of it falls well within the discretionary ambit of the 

state's chief legal officer, especially while the district court still has 

before it motions which might result in fundamental alterations of the 

judgment as to which a stay might be sought. The dispute prematurely 

raised by the "independent counsel" at this point boils down to a 

0. 

 



  

disagreement between a state official and the state's lawyer over the 

precise day (within a possible range of less than a week) for filing an 

emergency stay application with this Court. Surely, the state's legal 

officer is under no compulsion to accede to such detailed direction 

from a non-lawyer, appointed state official in an area lying peculiarly 

within the Attorney General's expertise or else be compelled by a 

federal court to relinquish over his protest the constitutional powers 

conferred upon him by the people of the state.” 

4. The Attorney General of Texas is the only state official 

authorized to represent the real party in interest in this case -- the 

state -- in this Court. The "independent counsel" does not purport to 

represent the Secretary of State in his personal capacity (in part, 

because the Secretary of State is not a party in that capacity), and he 

does not purport to have received authorization from the Attorney 

General to act as outside counsel for the Secretary of State. Given 

such circumstances, only the Attorney General speaks for the state 

and its state officials in the court. Attached to this motion is a motion 

to strike and its supporting memorandum, filed today with the district 

court. They discuss in detail the legal bases for striking the 

"independent counsel's" pleadings and are incorporated herein. 

Based upon the foregoing matters, the Attorney General of Texas 

on behalf of the State of Texas urges the Court to grant this motion. 

  

* 

The Attorney General has not refused to seek a stay of the district court's 
January 2nd judgment. Whether to do so must await the district court's decision on 
Tuesday. The attempted appearance by Mr. Hill unnecessarily presents this Court with 
a super-heated battle concerning the fundamental allocation of power under the Texas 
Constitution over a point as insignificant as whether an emergency stay application 
should have been presented here on Wednesday the 3rd instead of Tuesday the Sth. It is 
premature to conclude that anything more momentous is presented by what the 
"independent counsel” has done. 

“3. 

 



  

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Ca ey 
“RENEA HICKS 
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 6th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier 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; and John L. 
Hill, Jr. Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002. a 

  

Renea Hicks