Defendant-Intervenor Judge Wood's Response to Mattox' Statement Concerning Non-Partisan Elections and Supplement

    ‘ 
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PORTER & CLEMENTS 
NCNB CENTER 

  

700 LOUISIANA, SUITE 3500 SS: ATTORNEYS 0 MAILING ADDRE 

  

PARTNERSHIP INCLEDING HOUSTON, TEXAS 77002-2730 P.0.BOX 4744 
PROFESSIONAL CORPORATIONS HOUSTON, TX 77210-4744 

TELEPHONE (713) 226-0600 
J. EUGENE CLEMENTS, P.C. TELECOPIER(713) 228-1331 

PARTNER TELECOPIER(713) 224-4835 W0027/001 
(713) 2268-06806 TELECOPIER(713) 236-9632 

TELEX 775-348 

December 30, 1989 

Ve. 8S. District Clerk 
United States District Court 
200 East Wall Street 

Midland, Texas 79702 

Re: No. MO-88-CA-154 
League of United Latin American Citizens 
(LULAC), et al. v. William Clements, 
Governor of the State of Texas, et al. 
U. 8S. District Court for the Western 
District of Texas, Midland-Odessa Division 

  

  

  

Dear Sir: 

Enclosed for filing in the. above entitled and numbered cause 
is Defendant-Intervenor Harris County District Judge Sharolyn 
Wood's Response to Attorney General Jim Mattox' Statement 
Concerning Non-Partisan Elections and Supplement. Please 
indicate the date of receipt and filing on the margin of the copy 
of this letter enclosed for that purpose and return same to us in 
the enclosed self-addressed stamped envelope. 

By copy of this letter, we are forwarding a copy of the 
above mentioned documents to counsel of record herein as indi- 
cated below. 

Thank you for your courtesy. 

Yours very truly, 

PORTER & CLEMENTS 

ot np Sk 

By 
  

J. Eugene Clements, P.C. 

JEC:dmc 

W0027/05 

Enclosures 

 



  

U. S. District Clerk 
December 30, 1989 
Page 2 

cc: Hon. Lucius Bunton, Judge 
Us. 8S. District: Court 
200 East Wall Street 
Midland, Texas 79702 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N, St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and 

Educational Fund, Inc. 

99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox 
Ms. Mary F. Keller 
Mr. Renea Hicks 
Mr. Javier Guajardo 
P. O. Box 12548, Capitol Station 
Austin, Texas 78701 

Mr. BPdward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

 



  

U. 8. District Clerk 
December 30, 1989 
Page 3 

CC: (Continued) 

Mr. E. Brice Cunningham 
777 So. R. L. Thornton Fwy, Ste. 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

PORTER o: © 

 



  

THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

JIM MATTOX, Attorney General 

§ 
S 
S 

V. S NO. MO-88-CA-154 

S 
S 

of the State of Texas, et al. N 

DEFENDANT-INTERVENOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD'S RESPONSE 
TO ATTORNEY GENERAL MATTOX' STATEMENT 

CONCERNING NON-PARTISAN ELECTIONS AND SUPPLEMENT 

  

  

  

  

Defendant-Intervenor Harris County District Judge Sharolyn 

Wood ("Judge Wood") files this Response to Attorney General 

Mattox' ("Mattox'") Supplement to the Joint Motion for Entry of 

Proposed Interim Plan ("Supplement") and Statement Concerning 

Non-Partisan Elections as an Aspect of an Interim Remedy ("State- 

ment"), and respectfully shows the Court the following: 

1. As the Court must be aware, the LULAC/Mattox Proposed 

Interim Plan ("Plan") has stirred up virtually unanimous 

condemnation by the district judges of Texas who have spoken up 

against it and filed suit against Mattox. See attached Exhibit 

Cmpn Mattox' Supplement is the latest example of his collusion 

with the Plaintiffs against the interest and express desires of 

his own clients, the named State Defendants and state district 

judges. The Supplement is nothing but an attempt by Mattox and 

‘the Plaintiffs to demonstrate that the Proposed Interim 

"Remedial" Plan has the support of the politicians including 

 



  

principally the members of the Legislative Black Caucus 

(erstwhile Plaintiff/Intervenors in this suit, whose intervention 

was stricken on their own motion) and other Democratic members of 

the Texas Legislature. It is instructive that Mattox saw fit to 

spend the limited time available prior to submission date for 

proposed "remedies" lining up political ‘support instead of 

conferring with his clients including the unnamed defendants--the 

district court judges of Texas. 

2. As Judge Wood pointed out in her Objections to the 

Interim Proposed "Remedial" Plan, filed with the Court on 

December 22, 1989, the Plan concocted by the Plaintiffs and 

Mattox, goes far beyond a remedy for any illegal vote dilution 

proved in this case and (1) impacts Anglo and Hispanic voters in 

areas as to which no violation was proved and no request for 

relief was made and (2) attempts to obtain 100% of all relief 

when only half of the sitting judges are up for election. In 

1990 in Harris County, for example, 36 of its 59 district courts 

are up for election. The Plan assigns the 36 district judge 

seats up for election to Harris County's 26 legislative dis- 

tricts, with minority areas being calculatedly assigned two 

"judges and all other areas one. In this most blatantly Bair, 

partisan document, judges up for election in 1992 (among them 

Judge Wood) are spared the impact of the Plaintiffs’ and Mattox’ 

political deal while those incumbents up for election in 1990 

-bear the entire weight of maximum displacement and disruption of 

the system. Double-weighting minority legislative districts, as 

 



the Plan most cynically does, force-feeds 100% of what Mattox and 

the Plaintiffs believe is their entitlement and more into an 

election in which only one-half of the judges are up for 

election, in naked disregard of constitutional and statutory law, 

or indeed of any concern other than pure politics. Were the 

interim Plan made permanent and were sufficient minority 

candidates to offer themselves up for districts currently 

represented by minority legislators, 36 of Harris County's 59 

district judges would be minority, i.e. 61%. Only four of these 

judges would have any substantial judicial experience. Under- 

scoring his political motivation in reaching such a "settlement" 

with the Plaintiffs, Mattox announced his candidacy for Governor 

on the Democratic ticket one day after presenting his and the 

Plaintiffs' Plan to Judge Wood and the press simultaneously as a 

fait accompli. 
  

3. In light of the foregoing, Mattox' representation in 

paragraph 1 of his Statement concerning non-partisan elections is 

either disingenuous or blatently hypocritical: 

In voting rights cases such as this one, federal courts 
are obligated to tailor the remedy (even an interim 
one) to the violation and, in doing so, to respect 
policy choices expressed by the state legislative body. 

Statement at 1. Mattox' and the Plaintiffs' plan goes vastly 

beyond any remedy to the violation found. Thus its "respect" for 

policy choices expressed by the state legislature is .actually 

nothing more than respect for the political support those 

legislators stand to give Mattox in return for increasing their  



  

political power over the judiciary, power which in the past 

legislators did not have. 

4, The LULAC/Mattox plan is, as Judge Wood has pointed 

out, designed to maximally disrupt the judicial election district 

in nine of Texas' most populous counties and to create maximal 

unfairness in the interest of promoting Mattox’ and the 

Plaintiffs' political ambitions.l/ Despite the Plaintiffs’ and 

Mattox' delicacy in referring to the specifics of their Plan, the 

Court cannot fail to notice that it assigns state district judges 

to the legislative districts of the legislators who now rush to 

embrace it, and, in particular, it assigns twice as many judges 

to heavily minority Democratic districts as to other districts, 

thereby injecting heavy Democratic political influence into state 

  

1/ In her Objections to Mattox' and the Plaintiffs' Proposed "Remedial" 

Plan, Judge Wood enumerated many violations of the United States and 

Texas Constitutions and of the laws of the State of Texas and the 

personal interest of its judges and its voters than ran rampant through 

that plan. She would now bring to the Court's attention the statement of 

Mattox' own expert, Rice University Professor Bob Stein, that Mattox’ 

"Remedial" Plan may inherently violate the United States' constitutional 

guaranty of one-man, one-vote in that 

U1€ you look at 10 minority districts and 10 white 

districts, you notice that turn-out rates are incredibly lower 

in minority districts," Stein said. "If that is the case, if 

you are electing 20 judges from 10 districts in districts with 

very low turn-out, every person's vote counts a lot more than 

in the other districts." : 

Stein said he is "not so certain that might not be in 

conflict with the concept of one-person, one-vote, legally and 

ethically." 

"Judicial Redistricting Plan May Be Flawed," The Houston Post, December 21, 
  

1989 at A-38, a copy of which is attached hereto as Exhibit "A." 

 



  

judicial elections. That those favored Democrats now eagerly 

adopt the Plan Mattox and the Plaintiffs hand them is hardly 

surprising, but it in no way indicates any concern for the 

interests of the present judicial election system, which Mattox 

is sworn by statute and the Texas Constitution to uphold, nor any 

concern for the best interests of the state, the voters, or the 

judiciary. To the contrary, Mattox' drumming up support from 

Democratic legislators and attaching that support to his proposed 

interim plan as a "Supplement" is an abject example of the most 

nakedly cynical aphorism there is: "To the victor belongs the 

spoils." 

6 It 1s deeply ironic that, despite the Plaintiffs’ 

insistence throughout this litigation that partisanship was 

irrelevant to minority vote dilution, the Plaintiffs now join 

Mattox in overtly fighting for the very spoils the genuine 

Defendants argued throughout this case that the Plaintiffs were 

covertly seeking: partisan influence over mini-districts drawn to 

maximize special-interest political influence over judges at any 

cost to the constitutional and statutory rights of the judges and 

voters of the state of Texas. In this regard, Judge Wood would 

call to the Court's attention the statement made by Jesse Oliver, 

a named Plaintiff in this cause of action, in an ex parte letter 

to the Court attached to Mattox' Statement, thet he supports 

partisan elections because it ensures attention to partisan 

‘interests (as opposed to the election of impartial judges which 

the Plaintiffs have heretofore maintained was their goal) to-wit: 

 



  

"The preferred candidate of black voters will continue 
to be black, brown or non-minority candidates who 
support those issues which the black voting population 
feels is important to it." 

Should the point not be sufficiently clear, Oliver continues, 

It is well known that the drop-off in minority voting 
and run-off elections is historically large and in the 
past has been sufficient to cause minority candidates 
[to] lose elections with the field was reduced to one 
non-minority candidate and the non-minority voters 
voted as a bloc to elect the non-minority candidate.... 
Such elections would only allow for the 'continued 
inability of black voters to elect the candidate of 
their choice. 

Id. In other words, what the Plaintiffs themselves really seek 

in this case is to force the Court, against the wishes of the 

vast majority of Texas voters and in disregard of their rights , 

to impose on the target counties mini-judicial districts drawn on 

racial lines which insure Democratic majorities so that black 

Democratic candidates who will "represent" the interests of the 

black community cannot fail to win election. 

7. The plaintiffs' claim that they have a right to elect 

black Democrats to ensure the representation of black interests 

in the judiciary is exactly the type of claim that the Supreme 

Court found invalid in Whitcomb v. Chavis, 403 U.S. 124 (1971), 
  

. as Judge Wood pointed out in her Post-Trial Brief at 34-39, in 

opposition to the Plaintiffs' claim that partisanship is ir- 

relevant to a vote dilution claim. it is doubly ironic that 

Mattox, along with the Plaintiffs, now seeks to clothe himself in 

the authority of Whitcomb as somehow offering support for his 
  

"Remedial" Plan. See Statement at 3. Had Mattox read Whitcomb, 
  

he would have discovered that while Whitcomb recognizes the role 
  

 



  

of partisanship in the election of "representatives" (which is 

what Mattox and the Plaintiffs want it to do), it refuses to 

label as discrimination against minorities losses which are 

actually attributable to Democrats running at-large in counties 

with Republican majorities and to force the creation of mini- 

districts to "correct" for such partisanship. Mattox then 

compounds the irony by accusing Harris County's Judges in the 

press of rascism--a charge that not even the Plaintiffs' alleged 

at trial. 

8. In the context set out above, Mattox' "Supplement" and 

his disingenuous Statement in support of partisan elections as 

opposed to non-partisan elections constitute a clear breach of 

his ethical and statutory duties to the named Defendants and the 

state district judges whom he used to--but no longer does-- claim 

to represent, i.e. those judges whose wishes he has never seen 

fit to consult. That breach of fiduciary duty is all the more 

egregious since until the Court rendered its memorandum opinion 

Mattox vigorously asserted his sole right to represent the state 

district Judges in their official capacity and his professed 

intention to defend the system established by Texas' 

Constitution and statutes. For example, in Defendant's Response 

to Motions to Intervene by Dallas County Piaintis-Tntervencrs 

and Travis County Defendant-Intervenors, dated February 7, 1989, 

-the Attorney General, as counsel for the original State 

Defendants, stated: 

"[Tlhe defendants do not oppose the motion for inter- 
vention bv the Travis County Defendant-Intervenors in 

 



  

their individual capacities. The Attorney General of 
Texas already represents the interests of sitting state 
district judges in their official capacities, cf. Order 
of January 27, 1989, denying Midland County's interven- 
tion at 5 (Texas Attorney General represents the 
interests of the State of Texas); however, such judges 
have not heretofore been represented in their indivi- 
dual capacities. 2/ 

Similarly, in Defendants' Response to Motion to Intervene by 

Harris County Defendant-Intervenor Wood and Midland County's 

Request for Reconsideration of Order Denying Intervention, Mattox 

stated: 

Putting aside the inaccurate, ill-informed representa- 
tions about such matters as whether there is substan- 
tial opposition to the Plaintiffs' suit, the Defendants 
do not oppose Judge Wood's intervention in her indi- 
vidual, or personal, capacity. 

®e oo 

As the Court recognized in its Order denying Midland 
County's Motion to Intervene, the Attorney General 
represents the interests of the State of Texas in this 
matter. The office of district judge is a state 
office, not a. county office. Under state law, the 

Attorney General is the authorized attorney for the 
state and its offices in civil litigation. See, e.g., 
Charles Scribner's Sons v. Marrs, 262 SW, 7122, 127 
(Tex. 1924); Brady v. Brooks, 89 S.W. 1052, 1056-57 

(Tex. 1905); Bullock v. Texas Skating Association, 583 
S.W.2d 888 (Tex. Civ. App.--Austin 1979, writ ref'd 
n.r.e.); see also United States v. Texas, 680 F.2d 356, 

368, -n.=16 (Sth Cir. 1982). By comparison, when a 
state district judge is sued in federal court in a 
personal capacity for actions associated with judicial 
activity, the judge has the option of seeking represen- 
tation from the Attorney General or from private 
counsel. See, e.g., Texas Government Code § 402.024 (a) 
(State District Judges). 

  

  

  

  

  

  

  

2/ The Court had previously denied Midland County permission to intervene as 

a Defendant on the grounds that the county lacked a protectable interest 

in the litigation and that whatever interest the county did have was 

adequately protected by the Texas Attorney General "absent allegations of 

(Footnote Cont'd) 

 



  

As a result of these representations, the Court was affirmatively 

misled by the Texas Attorney General into denying Midland 

County's Motion for Reconsideration and into permitting the 

intervention of district judges from Dallas County, Travis 

County, and Harris County "in their individual capacity" only. 

Order signed and entered March 1, 1989, -2/ 

In response to a threat from the Plaintiffs to seek 

attorney's fees from district judges allowed to intervene in 

their individual capacities and the response from the Attorney 

General that it would not consider itself liable for attorney's 

fees chargeable to work done because of the {reversions the 

Travis County judges filed a Motion to Modify Order Allowing 

Intervention, seeking to intervene in their official capacities 

only. See Motion filed April 13, 1989 and letter from William L. 

Garrett, attorney. for the Plaintiffs, to Attorneys for all 

Defendant-Intervenors dated March 13, 1989, attached thereto. 

Mattox replied, 

  

(Footnote Cont'd) 

collusion, nonfeasance, or adversity of interest." Order signed and 

entered January 27, 1989. 

3/ The Court refused Midland County's Motion for Reconsideration, in which 

Midland County sought intervention not only on its own behalf but as the 

legal representative of several named district judges in their individual 

and official capacities and submitted that its interests. were not 

adequately represented by the Texas Attorney General. Midland County's 

Request for Reconsideration of Order Denying Intervention, dated 

February 24, 1989; Order signed and entered March 1, 1989, regarding 

various motions to intervene. The Court's Order denying Midland County 

permission to intervene was subsequently upheld by the Fifth Circuit on 

the ground that the district court did not err in finding that Midland 

ff ™ {T Anrnatrs Cant!) 

 



  

In their official, as opposed to their individual (or 
personal), capacities, the Travis County District 
Judges are state officials. Unless he has authorized 
their retention of outside counsel (which he has not), 
the Attorney General of Texas is their legal authorized 
attorney in civil litigation. 

State Defendants' Response to Travis County District Judges’ 

Motion to Modify the Order Allowing Intervention, filed April 24, 

1989. The Attorney General urged that the modification motion be 

denied.: Id. 

Given such a clear statement from the Texas Attorney General 

regarding his sole and absolute right (and duty?) to represent 

all state district judges in their official capacities and his 

refusal to permit judges to retain counsel of their own, the 

Court denied the Travis County judges' motion. Order signed and 

entered April 25, 1989. The Travis County judges thereupon moved 

to strike their own intervention, a motion which the Court 

granted. Motion dated May 2, 1989; Order signed and entered 

May 5, 1989. 

In retrospect, the consistent opposition of Mattox to state 

district Jjudges' attempts to represent their own official 

interests in this case seems to have been designed from the start 

. to mislead the Court and to attempt to control the defense of 

this important litigation. Despite his subterfuge, however, 

Mattox' true interests emerged in the wake of the Court's 

  

(Footnote Cont'd) 

County's interests were adequately represented by the Texas Attorney General. 

LULAC v. Clements, 884 F.2d4 185, 189 (5th Cir. 1989). 
  

 



  

Memorandum Opinion and Order of November 8, 1989, as has been 

well-documented in the press, even as they were withheld from his 

own clients. See Robison, "Mattox, LULAC to hold talks on ways 

to pick district judges," Houston Chronicle, December 16, 1989, 
  

p. 16A at col. 5 ("Attorney General Mattox has always in his 

political life liked the idea of smaller districts, [Special 

Assistant District Attorney Renea] Hicks added."); Borges, 

"Mattox Sounds Warning On Judicial Appointments," Texas Lawyer, 
  

Pecember 4, 1989, at 8, col. 2 ("Stressing that his statements 

reflected his personal opinion and not necessarily those of other 

state leaders, Mattox said Nov. 30 that minorities have now 

proven in a court case that the at-large system dilutes minority 

voting in some counties."); Elder and Hunter, "At-Large Judicial 

System On the Ropes," Texas Lawyer, November 13, 1989, at 11, 
  

col. 1 ("The current system has few defenders, for a variety of 

reasons, Mattox wrote Clements Nov. 9."). Copies of all relevant 

newspaper articles are attached hereto as Exhibit "B." 

Mattox' rush to capitulation without any consultation with 

the Defendant-Intervenors or other state officials or district 

judges is confirmed not only by the outrage at his activities 

" expressed in the press by numerous judges and by Judge Wood's 

pleadings, which clearly indicate Mattox' lack of consultation 

with her and his disregard of her interests, it is also confirmed 

by a suit filed in state district court by State District Judges 

-Ted Poe (Republican) and Charles Hearn (Democrat), charging 

Mattox with conflict of interest and nonfeasance. See Exhibit 

 



  

"A": Warren, "Harris County District Judges reel at news," 

Houston Chronicle, Wednesday, December 20, 1989, at 16A, 
  

" 

cols. 1-6; Halley, "Judicial election plan on table, Mattox 

says," The Houston Post, December 16, 1989, at A24, cols. 1-2; 
  

Hensel, "Judicial redistricting plan may be flawed," The Houston 
  

Post, December 21, 1989, at A-37 -~ A-38; Mason, "Judge bars 

Mattox from role in lawsuit," Houston Chronicle, December 23, 
\ 

1989, at A-17, cols. 1-4. That suit was dismissed only when 

  

Mattox, for the first time, made the representation to the Court 

that he had never represented the State's district judges. 

Significantly, in a hearing in the navdis County state 

district court suit on December 23, 1989, granting a temporary 

restraining order preventing Mattox from representing State 

District Judges Poe and Hearn, Assistant State Attorney General 

Rich Tomlinson, representing Mattox, said: 

Mattox never purported to represent the judges in the 
federal case, and agreed to this settlement on behalf 
of the state as the state's attorney. 

Exhibit "A": Mason, "Judge bars Mattox ...," at cols. 1-2. In 

the same hearing, in flat contradiction to the representation by 

Rich Tomlinson that Mattox never purported to represent the 

judges in the referenced case, | 

Renea Hicks, also representing Mattox at the hearing, 
noted that, ironically, Schneider [attorney for Judges 
Poe and Hearn in the state case] has no authority to 
represent the judges in their official capacity as 
elected officials. 

"Only the attorney general of the state of Texas 
has that authority," Hicks said. 

 



  

County District Judges reel at news," Houston Chronicle, Wednes- 
  

day, December 20, 1989, .at 16A, cols. 1-6; Hailey, "Judicial 

election plan on table, Mattox says," The Houston Post, Decem- 
  

ber 16, 1989, at A24, cols. 1-2; Hensel, "Judicial redistricting 

plan may be flawed," The Houston Post, December 21, 1989, at A-37 
  

- A-38; Mason, "Judge bars Mattox from role in lawsuit," Houston 

Chronicle, December 23, 1989, at A-17, cols. 1-4. That suit was 
} 

  

dismissed only when Mattox, for the first time, made the repre- 

sentation to the Court that he had never represented the State's 

district judges. 

Significantly, in a hearing in the Harris County state 

district court suit on December 23, 1989, granting a temporary 

restraining order preventing Mattox from representing State 

District Judges Poe and Hearn, Assistant State Attorney General 

Rich Tomlinson, representing Mattox, said: 

Mattox never purported to represent the judges in the 
federal case, and agreed to this settlement on behalf 
of the state as the state's attorney. 

Exhibit "A": Mason, "Judge bars Mattox ...," at cols. 1-2. In 

the same hearing, in flat contradiction to the representation by 

Rich Tomlinson that Mattox never purported to represent the 

"judges in the referenced case, 

Renea Hicks, also representing Mattox at the hearing, 
noted that, ironically, Schneider [attorney for Judges 
Poe and Hearn in the state case] has no authority to 
represent the judges in their official capacity. as 
elected officials. 

"Only the attorney general of the state of Texas 
has that authority," Hicks said. 

 



  

Poe noted after the hearing the apparent irony of 
the Attorney General representing judges in their 
official capacity but not as unnamed Defendants in the 
federal lawsuit. 

"The bottom line is the attorney general does not 
represent me," Poe said. 

Id. Judge Poe's comment says it all, This Court must find 

Mattox' post-trial position shocking. in’ light ‘of Mattox' 

pre-trial efforts to prevent judges from being represented by 

other counsel in their official capacity. 

In Judge Wood's view, Mattox has taken a position adverse to 

his clients and is disqualified from representing the State or 

any of its officials, including the district judges, and Judge 

Wood herself. She further believes that Mattox' purported 

representation of the state officials and district judges, 

including herself, under such circumstances, violates the Texas 

Disciplinary Rules of Professional Conduct, specifically rules 

1.02(a) (2) (settling against the wishes of the client) and rule 

1.06 (conflict of interest). Patently, Mattox does not represent 

the State's Governor, Lieutenant Governor, House Speaker, 

Secretary of State, Chief Justice, Administrative Judges or 

district court judges. Who does he represent? 

Judge Wood would also add that the Attorney General®s covert 

and overt activities in this case prove the very "collusion, 

nonfeasance or adversity of interests" deemed by the Fifth 

Circuit and held by this Court to constitute grounds for finding 

-that the Texas Attorney General does not adequately represent the 

interests of Texas' state district judges. See Order entered 

 



January 30, 1988 at 5, denying Midland County's intervention; see 

also Kneeland v. National Colegiate Athletic Ass'n, 806 F.2d 
  

1285, 1288 (5th Cir, 1987) (citing Bush v. Viterna, 740 F.2d 350, 
  

355 (5th Cir... 1984) ). 

In support of her claim that Mattox does not adequately 

represent her in her official capacity as a state district judge, 

and in light of the evidence set forth above ‘that he never 

intended to defend vigorously the present system of electing 

state district judges and that his interests as a Democratic 

candidate for Governor are in direct conflict with his duties as 

counsel for the State and its officials in this case, Judge Wood 

requests that Mattox disqualify himself generally and speci- 

fically as her attorney in her official capacity and permit her 

to retain private counsel to represent both her individual and 

her official interests in this case. A copy of Judge Wood's 

letter to Attorney General Jim Mattox dated December 29, 1989, is 

attached hereto as Exhibit "C". 

WHEREFORE, for the foregoing reasons, Judge Wood respectful- 

ly requests that the Court immediately certify this case for 

interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and that it 

approve no interim or permanent remedy pending appeal, certainly 

not until all parties in interest have been notified that 

Attorney General Mattox is not and has not been representing them  



  

and they are given an opportunity to secure counsel in their 

official and individual capacities and to have effective input 

into a remedy. 

OF COUNSEL: 

PORTER & CLEMENTS 
Evelyn V. Keyes 
3500 NCNB Center 

P.O. Box 4744 
Houston, Texas 

(713) 226-0600 
77210-4744 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 

(713) 228-5105 

77002 

    

Respectfully submitted, 

PORTER & CLEMENTS 

  = 
  

J] Eugene Clements 
3300 NCNB Center 

.O. Box 4744 
Houston, Texas 

(713) 226-0600 

ATTORNEY FOR HARRIS COUNTY 

77210-4744 

DISTRICT JUDGE SHAROLYN WOOD 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the 20" 3ay of December, 1989, a 
true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N, St, Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street 

l6th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

 



  

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

==   
  

J. Eugene Clements 

WO005/06/cdf 

 



      

   

  

   

   
     

   
    

   

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2 to saciifice the state 
i personal gain, 
“Person lly, if I were going into -outhivoiii and | had to have an -torey ai. had a choice between ially Duck and Jim Mattox, | vould he retaining Mr. Duck right ow,” the judge said. 
McSpa:! Coo and several giliers mong His County ; | | Republi. Jude cap for re-election me! ‘ednes ia discuss the proposal 

governorship, 

judiciary 

   

Cy hic determine where ai] of  Incui nt judges live jin aso + M plan is accepted. he id. 

BT - —— LJ 

Mattox is try- - 

The judges discuss 

would not be four o 
Judges facing olf 

_er. 
State District 

other Republic 

words for the attorney vanes. predicted clos if fia o's 
linplemented. 

“The allo ey ge-ier-: js 
to unhold tha 

without a whimper [i . . Rivown only {0 himseil 

Calan] 

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ec. thei orel- | 
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Judge ‘| od Pee, an- i 
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tion, said no deals 
the meeting. Peo also 

we! mile als 
had Iuusi » 

LACT 

Texas Capgtit. tian 
against ail attackers," 
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101 oy 

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** THURSDAY, December 21, 1989 +   

  

  

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Lhe judicial redistricting plan 
agreed upon by Attorney General 
Jim Mattox and plaintiffs in a minor- 
ity voting rights case may violate the 
concept that all votes have equal 
weight, one of Mattox’s own experts 
said Wednesday. 

Rice University political science 
professor Bob Stein said preliminary 
ata he his compiled show that, be- 
cause of Harris County voting nat- 
t2rie, a viciaticn of the one-person, 
~ne voir concent mar La inher=n! 
ii the redis ricting proposal. 

Matte <'s office iired Stein eatlier 
this ear as an exper! witness for a 
federal trial on a lawsuit filed by mi- 
nornty groups challenging the meth- 
od of electing district judgas in Tax- 
as. 

U.S. District Judge Lucius Bunton 
nilec last month in that case, saying 
the countywide system of electing . 

~ judges. violates the U.S. Voting 
Rights Act by diluting minority vot- 
Ing strength. 

~ Mattox announced a proposed le- 
gal settlement Tuesday between his 
office and! the league cf United Lat- 
in American Citizens that would 
elect state district judges in Harris 
and e:ght other counties from legis- 
lative districts. The proposal calls for 
voters in 10 of the 26 legislative dis- 
tricts in !Hairis County to elect two 
judges instead of one. 

These particular districts were 
| chosen because they have large mi- 

nority constituencies, but Stein said 
that in itself presents the problem. 

“If you look at 10 minority dis- 
tricts 2nd 10 while districts, you no- 
tice that turnout rates are incredibly 
lower in minority districts,” Stein 
said. “If that is the case, if you are 
electing 20 judges from 10 districts 
in distiicts with very low turnout, 
every persons vote counts a lol 
more than in the other districts." 

Stein said he is "no! so certain 
thai might not be in confiict with the 
concept of one-person, one- ote, le. 

- gally and ethically.” : 
He :aid he is in the process of 

“making a :ystemalic cor:parisci of 

| 
1 

lox's plan alter outgoing Ll. Gov. 
Bill Llubby sent him a memo asking 
for his opinions. Hobby is scheduled | 
to teach at Rice next year. 

Even if the plan violates the spirit 
of the law, Stein said it probably is 
“a good temporary plan” until a per- 
manent one can be addressed by the 
Legislature. He said if it achieves the 
goals Bunton envisions, the judge 
may “stretch” the parameters of the 
Liie-persoti, one-vole concept, 

The districts that have been 
tapped for two judicial places under | 
the Mattos proposal are Districts 
131, 132. 138, 139, 141, 142, 143, 
146, 147 and 148. Those districts 
are concenlrated in central, east and 
south Houston, 

Only six of the county's 59 district 
judges arc minorities. Three are 
black, and three are Hispanic. 

The Mattox plan will be submitted 
to Bunton on Friday. 

Last month, Bunton ruled that the 
at-large system of electing state dis- 
trict judges in nine counties — Har- 
ris, Dla, Tarrant, Bexar, Travis, 
lefferson. Lubbock. Ector and Mid- 
lan — makes it difficult for blacks 
and Hispanics to be elected. He 
threatened to postpone 1590 judicial 
elections unless the Legislature re- 
vised the system by Jan. 3. : 

Under the interim plan for 1990 
“elections proposed by Mattox and 
supported by 16 of the state's 31 
senators, candidates would not have 
to live in the districts in which they 
run. And although they would be 
elected by district, the judges would 
retain countywide jurisdiction. 

Mattox called the proposed settle- 
ment “the right thing to do." 

However, Harris County judges 
continued Wednesday to blast the 
proposed agreement, which they say 
was made without consulting the - 
judges, who are parties to the law- 
suit. ; 

State District Judge Michael 
McSpadden lambasted Mattox, say- 
ing the 1ttorney general is deluding 
himself into thinking his actions will, 

Please see JUDGES, A-38 

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  EXHIBIT 

Wttox, LULAC to id talks 
on ways to pick district judges 
  

By CLAY ROBISON. 

Houston Chronicle Austin Bureau 
  

AUSTIN — Attorney General Jim 
Mattox and the League of United 
Latin American Citizens will begin 

negotiations Monday on ways to 
select state district judges in Harris 

fin next year’s elections. 
Assistant Attorney General Renea 
Hicks on Friday confirmed that ne- 

gotiations are set to begin, as rumors 
. swirled about U.S. District Judge 
. Lucius Bunton’s ruling against at- 

  

  

~ and eight other urban Texas counties 

  

large Str judge elections in the: 
nine tounjey, : 

Earlier’ Friday, Texas Supreme 
Court Chief ‘Justice Tom Phillips; 
Mike Toomey, Gov. Bill Clements’. 

- chief.of staff; and a number of Harris | 
County judges said they had heard: 
that Mattox had reached af agree-: 
ment with. LULAC. 

Hicks, hoy ever, flatly denied the 
report, grit Mattox had ‘agreed 
only Thursday to begin negotiations 
with. LULAG, a plaintiff in the law- 

.: See'JUDGES on Page 16A. 
Havers AEG . vi 

4 

  

  

Judges 
Continued from Page 1A. 

suit that led to Bunton's decision. 
Bunton's clerk reported Friday 

that no agreement between the 
parties had been filed with the 
judge's office. 

Because Clements didn’t allow the 
Legislature to address the issue dur- 
ing the recent special session on 
workers’ compensation reform, Bun- 
ton has asked parties to submit plans 
for an interim solution for the 1990 
elections. 

Hicks said LULAC has the “upper 
hand at this point” because Bunton 
has “made clear he’s going to order a 
change for 1990.” 

“Attorney General Mattox has al- 
ways in his political life liked the 
idea of smaller districts.” Hicks ad-- 

‘ded. 
In negotiations with the state, LU- 
LAC attorney Rolando Rios of San : 
Antonio said his group will seek state 
‘representative districts used in the 
1990 election of 36 Harris County 
judges. 

Because there are 26 legislative 
districts in Harris County, some dis- 
tricts would have more than one 
district court bench on the ballot. 
LULAC is seeking use of the same 

plan in Dallas, Tarrant and Bexar 
counties; judges in Travis County 
would be elected through use of 
justice of the peace precincts: and 
the remaining counties would use 
county commissioner precincts. 

Hicks said any agreement that the 
state and the plaintiffs may reach on 
an election plan for 1990 wouldn’t 
preclude an appeal of Bunton's or- 
der ; 
Meanwhile. #1: ~: : Pepublico 

asked Bunton to cro on-partic. 
elections. for .district judges in the 
nine counties ‘affected by the lawsuit 
  

~~  e 
1 

~", Ar 
as part of a temporary solution. ig” 

Under Phillips’ plan. which Demo 
cratic Supreme Court Justice Franks 
lin Spears endorsed. Bunton woul 

57 

“enjoin 1990 primary elections for thd} 
affected district judges. Their races 
would be decided in the Novembemns 
1990 general election, with runoffss 
held in December, if necessary. 3 
Delaying elections unti] Novem® 

ber, Phillips said, would give thei 
Legislature and the U.S. 5th Circui 
Court of Appeals “a meaningful op§ 
portunity to exercise their respec 
tive responsibilities in this matter.’g | 

In his submission to Bunton, PhilX 
lips suggested that non-partisam 
elections for 1990 could be held 
countywide or from districts td 
which courts would be assigned an} 
domly. 

Clements. who met with Bupton 
this week to try to buy the state more 
time. in the case. has joined with:Lta 
‘Gov. Bill Hobby and House, Speaker 
‘Gib Lewis in endorsing a plan under; 
.which the: governor would’ -appoing 
“judges and voters would decide peri+ 
odically whether they should remairg 
on the bench.: 

But that plan has little Sipport x 
the. Legislature. - 

Not all state district judges are in 
agreement about how they should i 
selected. 

Jim Barr. a Republican erivingl 
court judge in Houston, said judge 
should continue to be elected 2 
wide to avoid political influence b 
constituents in a small area, such as§ 
the state representative districts. 

“Most of us are not too concerneds 
about whether it is partisan or non-§ 
partisan.” Barr said. as long as ¢lec-8 
tions are countywide. : 1 

Bill Harmon. another Republican 
in a criminal court, slot. said hej 
favors a "merit selection” fysiem of 

Dt an Inng: ge f1ANS a 

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0... LAWYER ® DECEMBER 4, 1989 

  

AG: Voting Rights Quick Fix Has a Hitch 
  

BY WALTER BORGES 
  

Any state action to create an ap- 
pointive system for selecting state 
Judges — the plan now favored by the 
state’s top executive and legislative 

| 

| 

| 
| 

| 

| 

| 
officials — probably will not win fed- 
eral approval, Texas Attorney Gen- | 
eral Jim Mattox said Nov. 30. 

“I see no reason to think that (fed- 
eral officials] would approve an ap- 
pointive system,” Mattox said, - 

system, others aren’t so sure that 
such a change 

judge who last month held 
that at-large election of district 
judges in nine Texas counties dis- 
criminates against minorities in vio- 
lation of the U.S. Voting Rights Act. 

As a state subject to section 5 of the 
| Voting Rights Act, any new judicial 

ing that state officials would have a | 
hard time proving that minorities | 
would have a better chance to be- 
come judges under a gubernatorial | 
appointment plan. 

For the first time, Gov. Bill Cle- 
ments on Nov. 29 joined two previous 

selection plan must gain the pre- 
clearance of the Justice Department. 

Supreme A) 

| pointment-retention election plan, 
supporters — Lt. Gov. William Hobby | 
and House Speaker Gib Lewis — in | 
endorsing an appointive judicial se- 
lection system. 

Clements spokeswoman Rosanna 
said Nov. 30 the governor 

favors an appointment system only 
for district judges. Hobby and Lewis 
have expressed support for a more 
comprehensive apngintment system. 

The plan, first implemented in 
issouri, uses a nominating com- 

mission to select at least three can- 
didates for gubernatorial appoint- | 
ment. Appointed judges must run in 
retention elections at the end of each 
term to determine if they will con- | 
tinue on the bench. 
Although Clements, Hobby and 

Lewis support the change from direct 
election of judges to an appointive | 

but returned home without much 
Sense of how Justice would view the 
Pp 

Stressing that his statements re- 
flected his personal opinion and not 
necessarily those of other state lead- 
ers, Mattox said Nov. 30 that minor- 
ities have now proven in a court case 
that the at-large system dilutes mi- 
nority voting in some counties. 

Lawyers for the minority plaintiffs 
argue that single-member districts, 
or smaller than county-wide electoral 
districts, will lead to increased 
numbers of minority j 

“It would be hard to show that 
Governor Clements’ appointments 
would reflect the same thing that 
would result from an elective pro- 
cess,” Mattox said. 

A recent study by a liberal think 

  fr 

  

  

  

  

      
    

          

  

AG AM MATTOX: ‘‘It would be hard 
to show that Governor Clements’ 
appointments wouid reflect the 
same thing that would resuit from 
an elective process.” 

tank supports Mattox’s conclusions. 

Policy Research Forum, University 
of Texas School of Law professor 
Samuel Issacharoff found that of 36 

| judicial appointments made by Cle- 
| ments between Jan. 20, 1987, and 

Jan. 31, 1989, 33 were white, three 
were Hispanic and none were black. 

was an attorney for the 
plaintiffs in a Mississippi suit that 
led to the establishment of single-   

» 

Mattox Sounds Warning On Judicial Appointments 

  
  

| politics specialist 
! University of Texas at Dallas, also 
i said federal approval of an ap- 

pointive system would be hard to 
| win. 
“I don’t see that anything has 

JUDGE LUCIUS BUNTON: State leaders 
scramble to draft a ‘‘trust-me"”’ 
resolution demonstrating the 
state’s good intentions to meet his 
Jan. 3 deadline. 

Le wi member districts for some district 

Anthony Champagne, a judicial 
i ist who teaches at the 

since sponsors of the merit 

  

  

  
  

CONTINUED ON NEXT PAGE 

  

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CONTINUED FROM PRECEDING PAGE 
  

election plan [an appointment- 
retention election system similar to 
the Missouri plan] said they could 
not get pre-ciearance from the Jus- 
tice Department,” Champagne said. 

the plan to win approval.” 

Clements and the legislative lead- 
| ers also have agreed to seek resolu- 

  

tions from the House and Senate that 
seek to head off Bunton’s threat to 
suspend elections of district judges in 
nine counties uniess the state dem- 
onstrates by Jan. 3 some effort to 
change the existing at-large system. | 

“Judge Bunton probably will not | 
accept from the Legislature a prom- | 
ise of action in the future,” said | 
Mattox, a Democrat seeking to suc- | 
ceed Clements in 1990. 

Although Clements called Nov. 29 
for immediate state action to address 
Bunton’s concerns, the governor 
didn't say what specific action legis- 
lators should take. ! 

The governor's own inaction has | 
blocked amy consideration of legisia- | 
tive remedies during the current 
special session. Clements, who con- 
trols the special session agenda, has 
refused to permit legislators to con- 
sider the issue unless a workers’ 
compensation reform bill is passed. 

Both House and Senate com- 
mittees began consideration of cor- 
rective measures in mid-November 
in anticipation that Clements would 
allow action. 

But the governor's intransigence 
led House Speaker Lewis to call fora | 
“trust-me” resolution Nov. 27 asking | 
Bunton not to follow through on his | 
intention to hait judicial elections in | 
1990. 
Although the ‘“do-nothing, trust- | 

me” ap mes more attrac- | 

| 
| 

| 

| 

| 
i 

i 
| 

[ 
| 
| 

“It’s going to take a new wrinkle in [ 

| 

| 
| 
| 

] 

| 

  
tive to legislators each day of the 
waning session, Texas Supreme 
Court Justice Oscar Mauzy is urging 
swift action. 

“This Legislature could do some- 
thing within 48 hours if the governor | 
opened the call,” Mauzy said Nov. 28 
after urging a House committee to 
consider creating singie-member 
districts for the state's 14 appeals 
courts and two high courts. 

Acknowledging that legislation 
correcting the district court situation 
was stalled by the governor's in- 
action, Mauzy urged the House 
Committee on Judicial Affairs to 
propose an amendment to the Texas 
Constitution establishing single- 
member electoral districts for the 
Supreme Court, Court of Criminal 
Appeals and the 14 courts of appeals. 
The panel has taken no action on any 
amendment. 

Clements has no role in the legis- 
lative process for recommending 
constitutional amendments, Mauzy 
said. That process requires oniy con- 
current resolutions from both the 
Senate and House and subsequent 
approval by voters. 

The governor's inaction notwith- 
standing, legislators have come up 
with plans to address the Bunton 
ruling, which affects judicial elec- 
tions in nine Texas counties. 

Sen. Ted Lyon, D-Rockwall. and 
Rep. Patricia Hill, the Dallas Re- 
publican who chairs the House judi- 
cial affairs committee, are among the 
legisiators filing early propoealis. Hill 
filed a package of two bills and a 
proposed constitutional amendment 
that would rework the selection 8ys- 
tem for district court judges only. 

Lyon’s Senate Joint Resolution 3 
would provide a comprehensive 
overhaul of all three tiers of the state 
courts. Hill proposed non-partisan 
election of the district judges. with | 
vacancies being Sllod hy mvhowas 
torial apgasn: ooo 

DECEMBER 4, 1989 ® TEXAS LAWYER 

ments would be made from a list of 
three candidates submitted by a 15- 
member nominating commission. 

Hill’s package includes: 

governor would appoint four mem- 
bers of each commission and the 
lieutenant governor, House speaker 
and State Bar prsidest would each 
appoint three. e remaining two 
slots would be filled by appointees of 
the state chairs of the two parties 
tallying the most votes in the pre- 
ceding gubernatorial election. The 
commission would submit three 
names to the governor for each va- 
cant bench. 

® House Joint Resolution 7, a 
proposed constitutional amendment 

that would set up the appointment | 
system for vacancies. Lyon's SJR 3 
contains major changes for the top 
two tiers of courts and includes an 
overhaul of the regional adminis 
trative system for district courts. 

Lyon proposed: 
Establishing single-member 

districts for both of the state's high | 
courts, the 14 appellate courts and | 
the district courts. Candidates for 
benches would be required to be 
residents of the districts. 

® Providing for the internal selec | 
tion of the Supreme Court chief jus- 
tice and the Court of Criminal Ap- | 
peals’ presiding judge by an annual 
vote of each court’s members. i 

® Making each Supreme Court 
justice the presiding administrative : 
judge for his or her district, elimi- 
nating the current system of nine 
administrative judicial regions. 

® Permitting the judges of the 
Court of Criminal Appeals to hear 
cases in three-judge panels, except in | 
death penaity cases. Capital cases 
would be heard en banc. =   

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1989 « VOL. 5. NO. 34 © $6.00 » TWO SECTIONS A yer A PUBLICATION OF AMERICAN LAWYER MEDIA. L.P. 

    

       
NOVEMBER 13. 

  

  
  

  
  

  

  

  

BY TED CILWICK 
  

The $59 miilion that Ramon Gar- 
cia convinced a jurv to bestow on nis 
ciients in 1987 was the largest ver- 
dict in the history of Hidalgo County 
— one of a dozen million-dollar jury 
awards Garcia has won. 

In another case four months later, 
he negotiated a $6.7 million settle- 
ment of a wrongful death suit for his 
cilents — a widow and her three 

daughters. 

Racking up substantial judgments 
1s nothing new to the 40-vear-old 
Edinburg plaintiffs’ attorney. who 
has engineered an extraordinary 
number of successes. 

But, while many of those perform- 
ances have turned to gold. others 
have turned to grist for accusations 
and litigation against him by clients 

Al AT Bn, ae 

Ramon Garcia and the 
High Price of Success 

HipaLco CounTY JusTicE™ 
Secona of Two Pans 

  

and business associates. 
After both 1987 million-doliar 

cases, for instance. his clients suec 
him. alleging. among numerous 
things. that he had improperly raised 

nis contingency fee at the eieventh 

hour. 
Perhaps the only common thread 

in the Garcia paradox 1s money: 
winning it. investing it, fighting over 

  

BR
AD
 
DO
HE
RT
Y 

  
LITIGATION 
BATTLEGROUND: 
Garcia vehemently 
denies allegations 
he sought to use 

| his financial 
backing of an 
Edinburg funeral 

| home as a way to. 
solicit clients for 
wrongful-death 
suits. 

it with clients and an ex-law partner, 
donating large amounts of it to judi- 

cial candidates. 
And Garcia. who has uniformly 

denied recurring accusations of un- 
ethical conduct. can point to this 
bottom iine: Except for an occasional 
pav-out to quietly settle a case 
against him. no critic has succeeded 
in inflicting on him the sizeable 

judgments ne wins for others. 

Moreover. his public disciplinary 
record 1s unblemished, Bar officials 
said. In fact. he 1s in his second three- 
vear term as a member of the local 
Bar grievance committee in deep 

South Texas. 
Garcia's enigmatic career as one of 

South Texas most successful plain- 
tiff s lawvers 1s a tale of a string of 
victories punctuated by bitter con- 
  

SEE RAMON GARCIA, PAGE 13 

  

At-Large Judicial System On the Ropes 
“This will have the best 

effect on the administration 
of justice of any case. ever. 

  

BY ROBERT ELDER JR. 
AND GORDON HUNTER 
  

American Cinizens. et al. t. 
Maztox. et al.. No. MO-88-CA- 
154. Thev nave. in fact. al- 

courts in Daiias. Bexar and 
Harris counties. where, as 1D 
the district courts. minorities 

U.S. District Judge Lucius 
Bunton's Nov. 8 voting rignts 
ruling gave plaintiffs their 
biggest victory vet in the na- 
tionwide battle over at-large 
election of judges. 

said co-lead plaintiffs’ coun- 
sel William Garrett of Dal- 

JUDGE ORDERS FINAL REMEDY 
IN BROWNSVILLE CASE 
SEE STORY. PAGE 10 

  

  

  

    

ready piotted their next 
move. 

Garrett said he will file a 
simiiar chalienge to the at- 
large election of county court- 
at-law judges within 60 days 

  

  

are vastly underrepresented 

on the bench. 

Hailed bv the winners as 
the most important voting 
rights case 1n the state in 16 

  

  

CE
AS
AR
 
MA

RA
GN

I 

  

  

  

  

5 - 

Bunton's stinging memo- las’ Garrett. Thompson & — starting with Dallas years, Buntor's ruling is the U.S. DISTRICT JUDGE LUCIUS 

randum opinion alreadv has Chang. County. but possibly in other broadest vet under a year-old BUNTON: Winners hail his 

cast the Texas judiciary into Plaintiffs’ lawvers weren't urban areas as well. standard appiying the Voting pjing ag the most 

turmoil — and the ripple ef- surprised by their victory in Other likelv targets, Gar. Rights Act to judicial elec-  jmportant voting rights 

fect is just beginning. League of United Latin rett said. are state appellate SEE AT-LARGE. PAGE 11 ruling in Texas in 16 years. 

—————— 

INSIDE 

i NEW YORK GRUMBLINGS TEST CASE FLIP-FLOP INSTILLING THE RULE OF LAW OTHER NEWS 

! Some former partners of Fulbright More than a year after oral WITH A ‘REAL MORALITY’ ® Houston's Hirsch. Glover 
. Jaworski & Reavis McGrath say 

‘the interstate merger has produced 

    

  

+i 2nta wno want their 

arguments — and with a realigning 
election in the   

      

BAVB Waa Laz Case ¥BTY DH 
watching’ for an answer 10 state 

iy was 

privacy claims. — Page 8 i ¥ 
a 

Reprinted verbatim is the Oct. 13 
speech in Hvde Park. N.Y., by U.S. 

recruits corporate group ........8 | 

  

  

  

  

  

  

  

lackluster resuits. — Page 2 interim — the | Supreme Court Justice William J. 8 Dallag BES HAM es viners or 

Iezes Supreme Brennan Jr., who urges the legal 

NTE PPROVED 0 profession to give meaning to law 

MAAN og JORDEN bi Withdraws its by using it to attack social INADMISSIBLE : 
order agreeing — 26 NAME IND 

behavior code for jayvers so to hear the equities. Page BTA rT] TA 

' reprinted here in — gay the drug testing CALE 

i lack of built-in penaities can be challenge that CHILES REVISITED gis peas. EL 2 

overcome if the voluntary creed is oiaintiffs “I anston’s 14th Court of Appeais IN THE NEWS 21 

| used to pressure “Rambo” CGA aL ka. ‘ rai SE De) 

i litigators and is used as leverage Harring Su 
34 

 



  

  

  

  

  

  

NOVEMBER 13, 1989 ® TEXAS LAWYER 

pi
 

pod
 

  
  a  ——————————— 

Or ra a ea 
  

At-Large Judicial 
System On the Ropes 
  

CONTINUED FROM PAGE 1 
  

tions. 

Bunton wrote that his ruling 
should be no surprise — it was simply 
the most recent step in a legal evolu- 
tion that has been building since the 
1965 U.S. Voting Rights Act. 

While the act had as its broad goal 
an end to racial discriminatio! 
voting, it was not until last year that 
the door swung wide open for chal- 
lenges to judicial elections. 
The decision in Chisom v. 

Edwards, 839 F.2d 1056 (5th Cir. 
1988), ended the notion that judicial 
elections are a special case — that 
they are exempt from the Voting 
Rights Act because judges are not 
“representatives’’ as defined under 
the act. 

Bunton’s ruling is the broadest 
application of the Chisom standard 

| to date, based on the numbers of 
judges involved. 

Texas Attorney General Jim Mat- 
i tox urged Gov. Bill Clements to in- 

clude the 1ssue on the agenda of the 
scheduled Nov. 14 special session of 
the Legislature, as did numerous 
other state officials and party lead- 
ers. 

“The current system has few de- 
fenders. for a variety of reasons,” 
Mattox wrote Clements Nov. 9. The 
AG said he would make a decision on 
an appeal after Clements decides 
whether to put the 18sue before legis- 
lators. 

Clements, in the hours after the 
ruling, maintained his opposition to 
including anything other than 
workers’ compensation reform in the 
agenda of the session. 

PARTY AFFILIATION CLAIM 
SLAPPED DOWN 

Bunton summarily siapped down 
the key defense argument — that 
party affiliation, not racially pol- 

. arized voting, keeps minorities off 

the bench. The state claimed that 
minorities could win judgeships if 
they only ran in the county’s domi- 
nant party. 

But Bunton wrote, “Party affilia- 
tion is simply irrelevant under the 
controlling law.” 
The U.S. Supreme Court in 

Thornburg v. Gingles, 478 U.S. 30 
(1986). made it clear “that it is the 
differences between choices made by 
blacks and whites alone and not the 
reasons why they vote differently 
that is the central inquiry...,” 
Bunton wrote. 

Although the party affiliation de- 
. fense may resurface in an appeal of 
i LULAC, Texas Supreme Court Chief 
i Justice Thomas Phillips, a defendant 
i in the case, sees a stronger front-line 

appellate position for the state and 
the defendant-intervenors. 

Phillips said Nov. 9 the argument 
that Texas’ trial judges are in- 
dependent office-holders is a “con- 
ceptually stronger” appellate posi- 
tion. 

Under this argument, trial j 
are sole, independent decision- 
makers outside the scope of any “col- 
legial body” — like the governor, a 
sheriff or a district clerk — and 
therefore not subject to a Voting 
Rights Act challenge. 

Bunton, in his conclusions of ‘2% 
held that Chisom applies equai.r 

ion in |!   

  

  

Chisom was limited to collegial judi- 
cial bodies. 

For Phillips, the footnote is a green 
light to the 5th U.S. Circuit Court of 
Appeals. “There is a central question 
[on the limits of a collegial body] that 
needs to be answered,” the chief jus- 
tice said. 

lenges, the winners were tentatively 
recommending interim solutions. 

Plaintiffs’ counsel Garrett said his 
clients favor using the lines drawn | 
for House districts for judicial elec- | 
tions in 1990 — which is before the 
new census data is compiled. 

An interim plan is needed for 1990 

only, Garrett said, because future | 
elections will use the 1980 census 
data, which is expected to show 
dramatically higher numbers of 
blacks and Hispanics. 

“It’s unfair to [Hispanics and 
blacks) to draw up something now,” 
Garrett said Nov. 9. 

Garrett said the Legislature 
should draw up plans that include 
districts in which both Hispanics and 
blacks can win, even though the 
plaintiffs on behalf of only 
blacks or Hispanics in some counties. 

Garrett said using 1980 census 
data — the most recent available — 
prevented his side from drawing up 
Hispanic and black sub-districts in 
some counties. He said there will be 
no such obstacle with 1990 data, and 
warned that unless the Legislature is 
fair to all minority groups, those 
groups will seek districts through 
more litigation. 

SENSE OF HISTORY 

The voting rights ruling also was 
the latest note of a recurring Texas 
  

SEE AT-LARGE, PAGE 12 

  

  

  

   

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| PLAINTIFFS’ CO-COUNSEL WILLIAM 
| GARRETT: Will file a similar 
| challenge to the at-large election 

| of county court-at-law judges, 
i starting with Dallas County. 

BR
IA

N 
CH
IS
M 

  

THIS IS 
THE FIRST WEEK 

OF THE REST 
OF YOUR CAREER. 

Now's as good a time as any to do something 

    

Wells 

apout it. For more information cali our Dallas 

office—serving the entire Southwestern United 
States—at (214) 939-3033 or write: 

1201 Eim Street, Dallas, Texas 75270. 

Because when it comes fo your career, next 

week might be a week foo late. 

 



  

s 

12 TEXAS LAWYER ® NOVEMBER 13, 1989 
  

  

At-Large Judicial 

  

CONTINUED FROM PAGE 11 

theme: from prisons to school financ- 
ing to single-member districts for 
legislators — and now to the judici- 
ary — the state moves only when it is 
pushed by the courts. 

Bunton wrote with a keen sense of 

  

| history, noting the benefits brought 
to minorities by singie-member dis- 

| tricts in races for the Legislature, 
city counciis and school boards. 

In Bexar County, Bunton wrote, 
{ Hispanics were elected to the Texas 

| House ‘‘immediately’’ after the 
landmark White v. Regester, 412 U.S. 
775 (1973), which brought single- 
member districts to the state Legis- 
lature. And. similarly, the number of 

| minorities increased once the San 
| Antonio city council adopted single- 

  

    

System On the Ropes 
member districts. 
Bunton said the state's long his- 

tory of discrimination *‘touched upon 
many aspects of the lives of minor- 
ities in the counties in question in- 

t cluding their access to and par- 
| ticipation in the democratic system 

governing this state and their socio- 
economic status.” 

The judge cited a 1978 report to the 
U.S. Commission on Civil Rights 
that pointed to little progress by mi- 
norities since 1968. 

“The administration of justice in 
Texas was overwhelmingly domi- 
nated by Anglo maies ... and the 
overall pattern had changed very 
little” in 10 years, the report said. 

The sparse numbers of minority 
judges debated during the trial in 
Bunton’'s court in September aiso 

show that very littie had shaken the 
Anglo power structure in the next 11 
years leading up to LULAC. 

Defense-oriented experts in voting 
i rights cases said the Texas defense of 

party over race would help chart the 
future of such challenges. 

‘“Texas really is the first bite of the 
apple in which a partisan defense 
presented itself very vigorously,” 
said Louisiana State University po- 
litical science professor Ronald 
Weber, a defense expert in chal- 
lenges to Louisiana's at-large judi- 
cial elections. 

If the party affiliation defense fails 
on appeal, Weber said, it could open 
the door for more challenges outside 
the South, where party affiliation 
piays a larger role in general elec- 
tions. 

Plaintiffs in LULAC targeted nine 
counties, including the five most 
populous: Harris, Dallas, Bexar, 
Tarrant and Travis. The other coun- 
ties are Jefferson, Lubbock, Ector 
and Midland. There were 172 district 
judges in the nine counties as of 
February. Only seven are black and 
nine are Hispanic. 

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Bunton found, without exception, 
there 18 racial discrimination in the 
election of state judges in those 
counties. 

“Some fixing has to be done, be- 
cause the current system is broken,” 
Bunton wrote in his 94-page ruling, 
cranked out in the six weeks foliow- 
ing the Sept. 18-22 trial. 

Bunton said the Texas Constitu- 
tion will need to be amended to fix | 
the system. And he wrote that legis- 
lators ‘‘should seriously consider 
RoRpartisan elections for district 

rough he revealed some of his 
thoughts on the current system of 
electing judges in the state, Bunton | 
left it it in the lap of legisiators to | 
remedy the Voting Rights Act viola- 
tions. At least for now. 

If the Legislature fails to make 
enough progress on a corrective plan 
by Jan. 3, the judge said he would 
then consider a restraining order or 
motion to enjoin future elections 
pending further court action on a 

remedy. 
Eo before Bunton’s dovision. 

there was growing debate about how 
the state should be subdivided to 
remedy racial discrimination in 

judicial elections. 
The subdivision proposals covered 

most of the existing boundaries, from 
justice of the peace lines to larger ju- 

  

  

“Texas really is the 
first bite of the apple 
in which a partisan 
defense presented 

itself very 
vigorously.” 

-— DEFENEE EXPERT SOMALD WEBER, 
LOVRSLAMA STATE UsEvERSTY 

  

risdictions covered by county com- | 

missioners and state legislators. 
One group, the Texas Policy Re- | 

search Forum, tried to discourage | 
any proposed remedy that includes 
appointments to the state bench. The | 
forum. founded in June and headed | 
by former Texas AFL-CIO legislative 
director Willie Chapman, noted that 
64 percent of the state's district court 
judges as of August 1988 first as- 
sumed 

was unlikely the U.S. Justice De- 
partment would give preclearance to 
any Texas plan that included an ap- 
pointment system. | 

  

  

— KNOW™ 
what's happening 

inside the US. 
supreme Court.   

Read 

COURTSIDE        



  

  
oT ———— 

Judges 

rejurned to office through periodic, 
uipontested elections 
fciearty we are offering a plan 

thet is the least radical plan from 
tht which we are currently using.” 
Mpttox said “It's still a partisan 
el@ction of judges. Judges still have 
cuntywide jurisdiction We are 
pitking out districts that are de- 
signed by the elected officials in the 
the 

[Should the Legislature decide to 
ga to a Missouri-type plan, should 
they decide to adopt a more radical 
ngn-partisan plan, should they adopt 
the governor's radical plans — that's 
a Hecision for them to make.” 

“lements called a news conference 
toiattack Mattox’s partial resolution 
of, the lawsuit. 

The governor argued that the LU- 
LAC-Mattox plan “would effectively 
eliminate the right of the people to 
vate for the individuals (judges) who 
will preside over critical cases and 
legal questions.” 
Be Jur also said defendants’ 

rights “are protected by the checks 
and balances provided by the peo- 
nle’s right to vote for every single 
eh that may preside in their 
case 

In late November, Clements him- 
sell endorsed eliminating direct 
election of state district judges as a 
way out of the LULAC lawsuit. 
Asked how he could support the 

elimination of contested judicial 
elections and still complain that the 
LULAC-Mattox plan reduced voter 
input, Clements said the Missouri 
plan he supports has a means by 

  

County 

opposing party in November 

    
which voters can vote out of office a 
judge who is appointed by the gover- 
nor. The replacement for that judge 
also would be appointed 

While Clements, Lt. Gov. Bill 
Hobby and House Speaker Gib Lewis 
like the idea of appointed district 
judges, the idea has little support 
among slate representatives and 

senators. 

Mattox blasted Clements 
“It is truly amazing to me that a 

fellow would use such language . . . 
when that fellow is advocating the 

How the plan would work 

M Filing: The 36 district judges up for election in Harris County next year 
will have unhl Jan. 12 to ile for the March primary election, instead of 
Jan 2 The Jan 12 deadline could be pushed back depending on when 
U.S District Judge Lucius Bunton issues a final order. 

@ Districts: The judges. and any challengers. will decide in which state 

representative district they want to campaign. There are 26. Ten districts, 
most of them minority districts, will have two judges each A candidate 
need not ive mn the district in which he or she runs, but must live in Harris 

® Elections: March party primary winners will face opponents from the 

WM Responsibilities: Incumbents who win re-election have first claim on 
their old courtrooms and any specialized assignments that go with them. 
Newcomers will be assigned tasks such as criminal, civil, family or 
juvenile court by the presiding judge 

B Terms: All terms will be two years instead of four 

WM Caseloads: Cases will ba assigned on a rotating basis regardless of 
where the alleged crime or civil wiong took place 

B Recusals: A Iiigant who fears that a judge will favor a party to a 
lawsuit because he or she is a constitutent of the judge can have the 
case assigned to a dilferent judge. Only one recusal is allowed per case. 

  

    
Chronicle 

appointment of judges, not elections. 
That fellow is the same one putting 
forth a plan that would take away 
the voters’ choice and leave it to his 
country club cronies,” Mattox said in 
a release. 

After the news conference, Clem- 
ents’ press office put out a statement 
to clarify his position. In it, Clements 
said he would leave it to Texas 
voters to change the constitution 
while Mattox would not. 

Under the LULAC-Mattox plan, 

state district judges still would hear 
cases from throughout the county. 

Mattox said he was able to include 
a clause that allows a lawyer to 
protect his client against a judge 
who might favor a constituent over 
someone who lives outside his dis- 
trict. 

“The cases would be assigned on a 
rotating basis. Every litigant would 
have the opportunity to strike or 
recuse a judge for no cause,” Mattox 
said. 

Mattox said Bunton may not ac- 
cept the proposal or that an interve- 
nor could have Bunton's order 
stayed. But he said state district 
judges who face re-election should 
start campaigning 

“I'd figure out which district 1 
could win in, and I'd get to running,” 
he said. 

The resolution was praised by LU- 
LAC leaders and representatives of 
the National Association for the Ad- 
vancement of Colored People Legal 
Defense and Education Fund. 
“We view this as a victory for the 

people.” said Harris County District 
Judge WH. Berry. “I want to con- 
gratulate Attorney General Matlox 
for his display of uncommon courage 
in attacking this very sensitive prob- 
lem.” 

Gabrielle McDonald, a former 
judge and attorney who represents 
the NAACP legal defense fund, said: 
“This is not a case about getling 
more black judges. It's a case of 
black voters being able to express 
their right, and they clearly - based 
on the decision of Judge Bunton 
had not been able to do so." 

Asked whether she thought white 
judges in Harris County would be 
defeated, McDonald said good white 
judges could win in a black district. 

Harris County district judges reel at news 
  

By SUSAN WARREN 

Houston Chronicle 
  

Harris County state district judges 
reeled in anguish and confusion 

Tuesday over the news Attorney 
General Jim Mattox agreed they 
should be elected next year accord- 
ing to narrowly drawn districts. 

The judges have been elected by a 
countywide vote 

“This is going to create a lot of 
chaos,” said civil court Judge Wyatt 
Heard, one of 36 district judges up 
for election in the county in 1990. 
“We'll lose a lot of good judges.” 

“Naturally we're all shocked by 
it," said AD Azios, who presides 

over the 232nd Criminal Court. 
Mattox signed off on the election 

plan with the League of United Latin 
American Citizens, which had sued 
the state, alleging (he countywide 
system diluted minority voting 
strength. U.S. District Judge Lucius 
Bunton of Midland agreed, and gave 

the parties in the lawsuit until Fri- 
day to agree to a temporary plan for 
electing judges. 

The plan agreed to by Mattox and 
LULAC applies only to the 1990 
elections and would be replaced by a 
permanent election system to be 
hashed out by the 1991 Legislature. 

If approved by Bunton on Friday, 
the interim plan will require Harris 
County judges to he elected by con- 
stituents from the 26 state represen- 
tative districts 

In essence, the plan would create a 
free-for-all in which judicial hope- 

fuls pick out a district in which to run 
and campaign within its boundaries 
for one of the 36 benches open in 

1990. Since the judges would still 
have countywide jurisdiction, they 
would not have to live in the district 
in which they run. 

Previously, judges have run coun- 
tywide to be elected to specific 
criminal, civil, family or juvenile 
court seats. Under the proposed sys- 
tem, voters would not know which 

  

specialization they are electing a 
judge to preside over. 

Since there are only 26 stale repre- 
sentative districts, and 36 judges to 
be elected, voters in 10 districts 
would elect two judges. Those 10 
districts, selected for their heavy 
minority constituencies, are 131, 132, 
146, 138, 139. 141, 142, 143, 147, 148 

Six of those districts are currently 
represented by a black and two by a 
Hispanic. Nine of the representa- 
tives are Democrats. 

Thirty one of the 36 judges up for 
election are white. There are 25 
Democrats and 11 Republicans. 

While several judges agreed the 
new election system would probably 
succeed in its intention to bring more 
minorities to the state district 
benches, they were .anguished by 
other implications of the plan. 

Judges contacted Tuesday worried 
that district elections would further 
politicize judicial elections, making 
judges answerable to special Inter- 
ests within their new districts. 

“It will be very unfortunate to 
have this perception of local justice 

in our county,” said Judge Sharolyn 
Wood. who intervened as a defendant 
in the LULAC lawsmt and who is 
sharply critical of the proposal 

The election plan would allow law- 
vers lo ask that a judge be recused 

from a case if there is a fear the 
judge could be biased 

And Judge Miron Love, the admin- 
istrative judge presiding over all 59 
state district judges in the county, 
worried because he will have fo 
decide where to put the 36 elected 
under the new system 

Winning incumbents will retain 
their court seat, but newcomers will 
be placed in an appropriate trial 
division. Love expressed concern he 
will have to place judges in a special- 
ization where they have no experi- 
ence or don't want to be 

All judges interviewed agreed the 
public would be shortchanged by the 
new system. 

“I'm a voter in Harris County, and 
I just lost the right to elect 35 district 
judges in this cgunty,” Wood said. 
“Now I have the right to elect one, 
while some get to elect two. 

“And I'm not allowed to know what 
court the judge I pick will serve in, 
or what specially he will be assigned 
to" 

There were also personal consider- 
ations for judges used to campaign- 
ing in all of Harris County, and who 
now must pick one area where they 
hope to be clocted The deadline for 
filing 1s Jan 12 

Azins was already mulling his op- 
Lions 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

  

  

  

Harris County state district judicial seats 
up for election in 1990 

Judge District Type Party When took office 

Reagan Cartwright 55th Civil : Dem 1/69 

Geraldine Tennant 113th Civil Dem 1/83 

Felix Salazar 157th Cuil Dem 1/83 

Patcia R Lykos 180th Cnmwnal Rep 1/81 

Donald K. Shipley 182nd Criminal Dem 1/83 

Jay W Burnett 183rd Comnal ~~ Dem 1/87 

Bob Burdette 184th Cuminal Dem. 3/86 

Carl Walker Jr 185th Cnnwnal Dem 1/87 

Richard W Millard 189th Civil Aep 12/85 

Wyatt W Heard 190th Civil Dem 10/69 

Thomas H Routt 208th Cnnmunal Dem 6/77 

Michael 1 McSpadden 209th Cuminal Rep 1/82 

Ted Poe 228th Cnminal Rep 9/81 

Joe Kegans 230th Cnmmnal ~~ Dem 4/77 

AD. Anos 232nd Cnminal Dem 1/83 

Scott Brister 234th Ci Rep 11/89 

Hetiy G Schuble Ill 245th Family Dem 9/77 

John W Peavy Jr 246th Family Dem 9/77 

Charles Dean Huckabee 247th Family Dem 11/83 

Woody A Densen 248th Criminal Dem 1/83 

Norman R Lee 257m Family Dem 7/83 
Doug Shaver 262nd Criminal Dem. 9/81 ] 

Charles J. Hearn 263d Criminal Dem 9/78 . 

David West 260th Cun Rep. 11/84 ; 

Ann Cochran 2701 8 i Dem 1/83 

Tony Lindsay 280th rT Rep. 6/89 

Loms M Moore 281s Civ! Rep 6/81 

Dan Downey 295th Civil Rep 4/88 

Bob Robertson 308th Family Dem 1/83 

John D Montgomery 309th Fanuly Rep 1/87 

Allen J Daggett 310th Fanuly Dem 9/77 

BOEmon 31h family Dem 977 

Robert S Web 0 3120 family Dem 1218 

Robert L Lowry 313m Juvende Dem 10/66 

Robert B Baum 3141h Juvenile Rep 7/79 

EncG Andel 315M Juvende Dem 7/85   
“I've got to find ont where I've 

been the strongest when I ran in the 
past,” he said 
Many judges anticipate races be- 

tween two or more incumbents, a 
scenario the judges find distasteful. 

Since a significant turnover seers 
inevitable, one of the greatest losses 

to the judicial system will be mea- 
sured in experience, judges said. 

Several were concerned the politi- 
cal instability will cease to attract 
the better lawyers no longer willing 
to sacrifice their prosperous careers 
for an uncertain future in public 
service 

Fven comity political leaders had 
nothing good to say about the plan, 

County Republican Chairwoman 
Sherry Johnson. who called the pro 

  

posed election system “a lousy plan,” 
likened it to “taking the judges and 
throwing them all up in the air like 
confelti and seeing where they land.” 

Johnson expressed her opinion de- 
spite her belief that Republicans 
would gain judicial seats under the 

lan. There currently are 11 Repub- 
§ judges, and 13 of Lhe 26 repre- 
"sentative districts are held by Re- 
publicans. 

Jack Carter, county Democratic 
chairman, was resigned to making 
the best of the situation 

“The court says there has to be a 
way to permit the minorities in our 
connnunities to have a greater role 

in electing judges.” Carter said 
“This is one way, clearly, to accom 
plish that 

  

mm
 

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. ¢ 
» 

The HoustonPost 
  

  

JAILHOUSE BLUES: SWAT team arrests fugitive to face the music in Louisiana — AZ 
  

   |   

Mary Lou Luzno, 9, left, and Mary Bel, 9, 

open presents Friday at a Christmas 
party for 950 Inner-city chlidren at the 

oo early for Chris iy atm ol ) 

  

  
Dan Hardy/The Houston Post 

Gregory Lincoln Education Center, 1101 

Taft. The party was sponsored by the 
Downtown YMCA.   

USTON/TEXAS  A-23 
++ SATURDAY, December 16, 198   

  

  

Judicial election plang 
on table, Mattox says 
  

Attorney general's move 
irks 2 justices, Clements 

By MIKE HAILEY 
POST AUSTIN BUREAU 

AUSTIN — Attorney General Jim Mattox sparked a 
political firestorm Friday by confirming his olfice is 
trying to negotiate an interim judicial election plan for 
1990 with plaintiffs in the lawsuit who are challenging 
the way district judges are selected in nine urban coun- 
ties 

In an attempt to keep U.S. District Judge Lucious 
Bunton from imposing his own plan on the state, Mal- 
tox said negotiations with the League of United Latin 
American Citizens and others are focusing on a propos- 
al to have Judges in urban counties elected next year 
from either Texas House districts or county commis- 

sioner precincts. 

Maltox's involvement drew sharp criticism from two 

state Supreme Court justices and Gov. Bill Clements’ 
office, which argued the attorney general could dam- 
age the state's chances of winning the judicial selection 

suit on appeal. 
But the Democratic attorney general said he decided 

to intervene when the governor refused to open the 
recent special session agenda to judicial selection, even 
though a court-ordered plan is expected to be issued in 
the next several weeks. 

“I just prefer to not have another federal judge have 
his free will without the slate participating,” Mattox 
said. 

Bunton, a federal judge from Midland, has ruled thal 
countywide elections of district judges in the large 
counties. including Harris County, violates the Voling 

  

Micheal Boddy/ The Houston Post 

Criminal Court-at-Law Judge Alfred G. 
Leal and Carolyn Garcla, candidate for 
157th District Court, were briefed on 

pending election changes. Please see 

story/page A-24. 

Rights Act by diluting the ability ol minotilies to win 
district court seats. 

The Republican governor's chief of stall, Mike Too- 
mey, said Clements and most state legislators — even 

those who favor drastic changes in the judicial selection 
process — want Bunton's ruling appealed all the way 
to the United States Supreme Court, if necessary. The 
state is preparing an appeal to the 5th Circuit Court of 

Please see JUDGES, A-24 

  
  

  

  

  

  
 



   
    

“Houston Chronicle. nnd 
Section A, Pagel 17% 
Saturday, Dec.23, 1989 

    
  

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Pls Deaths. 2° 

©. Weather, 2:    
  

  

ras News & Features =i 
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Judge bars Mattox from role in lawsuit 
  
By JULIE MASON 

Houston Chronicle 
  

A judge on Friday granted am 
order sought by two Harris County 
state district judges preventing 
Texas Attorney General Jim Mattox 
from representing them in a federal 
lawsuit over judicial elections. 

State District Judge Mark David- 
son granted the temporary restrain- 
ing order sought by State District 

- Judges Ted Poe and Charies Hearn, 
- who nbjectad to Mattox’s handling of 

C
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e
 

a Midland federal lawsuit drought by 
the League of United Latin Ameri- 
can Citizens. : 

™n the federal case, US. District 
Judge Lucious Bunton in November 

found that the current at-large sys- 

tem of electing state district judges. 

in Texzs illegally dilutes the voting 

__ strength of munorities and gave the 

: tions. 

parties until Friday to propose so 

  

By CLAY ROBISON 

Houston Chronicle Austin Bureau 
  

AUSTIN — In still another 
challenge to Texas’ judicial struc- 
ture, the Mexican American Le- 
gai Defense and Educational 
Fund Friday filed a lawsuit in 
Brownsville federal court against 
the statewide at-large system 
used 0 elect judges to the Texas 
Court of Criminal Appeals. 
MALDET charges the present 

system “denies and abridges” the 
night >f Hispanics to participate 
in the poiitical process in viola- 

_ tion of the Voting Rights Act and 

MALDETF suit targets | 

criminal appeals court 

_ nize largest counties illegally di- 

spcken forcefully against similar 
discriminatory election systems 

at the state district court and 

apcellate court levels,” MAL- 
DEF attorney Judith A. Sanders- 
Ca:tro said. : os 

“This lawsuit, a natural pro- 

gression of earlier lawsuits, will 

provide Mexican-American vot- 
ers the opportunity to participate 
in electing judges to one of the 
highest courts in the state.” 

U.S. District Judge Lucius Bun-- 
ton of Midland recently ruled that 
the countywide at-large election 
of s:ate district judges in Texas’ 

ests in negotiations with LULAC. 

“1 don’t think any court has the 
authority to enjoin someone from 

doing something they have never 

purported to do,” Hicks said. 

The judges allege in their lawsuit 
that Mattox has violated the code of 
professional responsibility by de- 
fending the federal suit to which heis 

also a named defendant. 

They claim he has failed to repre-' 

sent his clients’ best interests in the 

suit and signed off on a settlement 

without their consent. 8 

Arguments in Friday's hearing did 

not address these points raised in the 

lawsuit. i wes 

By agreeing to elect judges along 

legislative boundaries, Mattox. has 

usurped the Legislature and the 

Texas Constitution by creating a 

new state policy, the judges allege. 

AD settlement reached by on pi oo lutes the voting strength of mi . The judges conclude in their action 

Mattos acd LULAC calls for electing” | “217 She past the © 4 3 Fs i es Po 

"judges in 1990 by legislative bound- 
-* “In the. past the courts   “have © See MALDEF on Page 24A   
  

TS Shp oe tution. Mattox has violated his-oath 

_ aries. Most state district judges in. = i = Ae of office. EE. I323A% 

® Harris County, as well as Gov. Bill”. 
er : agi 

- Clements, strongly oppose the pro- 
I i 

Bunton. wio wasn't in his office 
Friday, will rule on the proposal. 

  

the state’s attorney. 

  

ooh » 
ap 

sete Con Baer 
WY QE 

» > eral representing judges im, their 
2 

The two judges’ unusual- action 

was supported by many of the coun- 

ty's state district judges; ‘most of 

whom have been outspoken critics of 

run: } do dow ouis tem rary restraining official capacity but not as.unnamed. eof LUTAC 

: BS i _ Is aot ig affect the (attorney) defendants in the federal lawsuit. - .. ig . SandnuE = : he 

: To nudges, argued in district court- general's conduct in the federalcase “The bottom line is the attorney gyi Fe Rr 

Fda -aat Mattox has no authority © 2° ail,” Tomiinson said + zi: ©... general does not represent me” Poe If Bunton approves the contraver- 

to recresent the judges in Midland =  Remea Hicks, also representing said. BEN ve mene sial Mattox-LULAC plan replacing 

hesquse “hey never ask=d hi cc, and 

»if omr:the- 

» without their     ad 

na ~ A 

Matrox at the hearing, noted that, 
ironicall~, Schoeider has no‘author- 
ity :0 represent the judges in their 
ciZcial capacity as elected officials. 

Davidson-set a Dec. 29 hearing on 
an injunction anc ordered Mattox to- 
acpear. The restraining order will 
save -~o effect on the settlement 

the at-large system of: electing 

judges, ail 36° Harris County; state: 

district judges. facing re-election 

have agreed to a bipartisan meeting 

LUTE - 2 78 : oo ivi ty. | -0i9n8.0: 

\ssistant State Attorney General - ~Oniv the attorney gemeral of the submitted to Bunton on Friday: ? divie ® fie ats # eo 

Rion T-mlineon sa: | Matiox never Stace of Texas has that autherity,” Friday's court action came:after li 3m 
3 H ich i t od : oe +i rg: Wl . a a: Paci lp 

sursuied to represent the judges in Hicks said. CC -i-.. the two judges filed a lawsuit Thurs- _ Chronicle Austin bureau regorier 

tha federal case. and agreed to the 

serziement on beaail ole state as. 

+ a —— 

F-2 noted after the hearing the 
acgurent irony of tk: attorney gen- 

day seeking to prevent Mattox from 
purporting to represent them inter- 

- . a. Cran  —— 

Cia; Robison also contributed to 

this story. ir 

  

  

  

re 
. : ~ 

or —-— ’} 

: 
a Roms. a rh 

: R : = ' 

EXHIBIT "RB" Pi 

 



    

SHAROLYN WooD 
JUDGE, 127TH DisTRICT COURT 

HARRIS COUNTY COURTHOUSE 

HousToN, TEXAS 77002 

December 29, 1989 

Mr. Jim Mattox 

Attorney General of Texas 
P.O, Boxi12548, Capitol Station 
Austin, Texas 78711-2548 

Dear Sir: 

Throughout this case from the date I first attempted to 
intervene until today, you and your office have represented that 
vou and only you can represent me in my official capacity. While 
it seems apparent to me that you have never taken any interest 
whatsoever in representing me or my interest, either in an 
official or individual capacity, to the extent that you have 
demanded to be my lawyer I hereby call upon you to oppose 
vigorously the Proposed Interim Plan which you negotiated 
(without my advice or input) with the plaintiffs in this case and 
which you signed in your capacity as Attorney General of Texas 
(despite your oath of office to uphold the Constitution and Laws 
of this State). 

If you are not willing to oppose the Proposed Interim Plan 
or if you recognize a conflict of interest in doing so, please 
immediately notify me of your withdrawal as attorney for me in my 
official capacity and authorize me to employ counsel to represent 
my interests in both my official and individual capacities. 

In the meantime, I instruct you to take no action whatsoever 
inconsistent with my interest as explained in pleadings filed in 

my behalf by attorneys employed to represent me in my individual 

capacity. 

Yours very truly, 

a 

Sharolyn Wood, Judge 

127th District Court 
Harris County, Texas 

EXHIBIT "C* 

 



: : } : 

® 

PorTER & CLEMENTS 
NCNB CENTER 

  

700 LOUISIANA, SUITE 3500 RESS: ATTORNEYS MAILING ADDRES! 

  

A PARTNERSHIP INCLUDING HOUSTON, TEXAS 77002-2730 P.0.BOX 4744 
PROFESSIONAL CORPORATIONS HOUSTON, TX 77210-4744 

TELEPHONE(713) 226-0600 

J. EUGENE CLEMENTS, P.C. TELECOPIER(713) 228-1331 

PARTNER TELECOPIER(713) 224-4835 WO0027/001 
(713) 226-0608 TELECOPIER(713) 236-9632 

TELEX 775-348 

December 30, 1989 

UD. S. District Clerk 
United States District Court 
200 East Wall Street 

Midland, Texas 79702 

Re: No. MO-88-CA-154 

League of United Latin American Citizens 
(LULAC) , et al. v. William Clements, 
Governor of the State of Texas, et al. 
U. S. District Court for the Western 
District of Texas, Midland-Odessa Division 

  

  

  

Dear Sir: 

Enclosed for filing in the above entitled and numbered cause 
is Defendant-Intervenor Harris County District Judge Sharolyn 
Wood's Response to Attorney General Jim Mattox' Statement 
Concerning Non-Partisan Elections and Supplement. Please 
indicate the date of receipt and filing on the margin of the copy 
of this letter enclosed for that purpose and return same to us in 
the enclosed self-addressed stamped envelope. 

By copy of this letter, we are forwarding a copy of the 
above mentioned documents to counsel of record herein as indi- 
cated below. 

Thank you for your courtesy. 

Yours very truly, 

PORTER & CLEMENTS 

py (J EUGENE CLEMENTS 
J. Eugene Clements, P.C. 
  

JEC:dmc 

W0027/05 

Enclosures 

4 
L] 

 



N : 

- & 

  

U..S. District Clerk 

December 30, 1989 

Page 2 

cc: Hon. Lucius Bunton, Judge 
UD. 8. District Court 
200 East Wall Street 

Midland, Texas 79702 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N, St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Avenue, Suite 2050 
NTS Austin, Texas 78701 

Mr. Jim Mattox 
Ms. Mary F. Keller 
Mr. Renea Hicks 
Mr. Javier Guajardo 

P, O. Box 12548, Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

 



  

UY. S. District Clerk 

December 30, 1989 
Page 3 

CC: (Continued) 

Mr. E. Brice Cunningham 

777 So. R. L. Thornton Fwy, Ste. 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

PORTER & Cixi: + 

 



  

THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

V. NO. MO-88-CA-154 

JIM MATTOX, Attorney General 
of the State of Texas, et al. D

N
D
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)
 
N
W
)
 

DEFENDANT-INTERVENOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD'S RESPONSE 
TO ATTORNEY GENERAL MATTOX' STATEMENT 

CONCERNING NON-PARTISAN ELECTIONS AND SUPPLEMENT 

  

  

  

  

Defendant-Intervenor Harris County District Judge Sharolyn 

Wood ("Judge Wood") files this Response to Attorney General 

Mattox' ("Mattox'") Supplement to the Joint Motion for Entry of 

Proposed Interim Plan ("Supplement") and Statement Concerning 

Non-Partisan Elections as an Aspect of an Interim Remedy ("State- 

ment"), and respectfully shows the Court the following: 

l. As the Court must be aware, the LULAC/Mattox Proposed 

Interim Plan ("Plan") has stirred up virtually unanimous 

condemnation by the district judges of Texas who have spoken up 

against it and filed suit against Mattox. See attached Exhibit 

ng. Mattox' Supplement is the latest example of his collusion 

with the Plaintiffs against the interest and express desires of 

his own clients, the named State Defendants and state district 

judges. The Supplement is nothing but an attempt by Mattox and 

‘the Plaintiffs to demonstrate that the Proposed Interim 

"Remedial" Plan has the support of the politicians including 

 



  

principally the members of the Legislative Black Caucus 

(erstwhile Plaintiff/Intervenors in this suit, whose intervention 

was stricken on their own motion) and other Democratic members of 

"the Texas Legislature. It is instructive that Mattox saw fit to 

spend the limited time available prior to submission date for 

proposed "remedies" lining up political support instead of 

conferring with his clients including the unnamed defendants--the 

district court judges of Texas. 

2 As Judge Wood pointed out in her Objections to the 

Interim Proposed "Remedial" Plan, filed with the Court on 

December 22, 1989, the Plan concocted by the Plaintiffs and 

Mattox, goes far beyond a remedv for any illegal vote dilution 

proved in this case and (1) impacts Anglo and Hispanic voters in 

areas as to which no violation was proved and no request for 

relief was made and (2) attempts to obtain 100% of all relief 

when only half of the sitting judges are up for election. In 

1990 in Harris County, for example, 36 of its 59 district courts 

are up for election. The Plan assigns the 36 district judge 

seats up for election to Harris County's 26 legislative dis- 

tricts, with minority areas being calculatedly assigned two 

judges and all other areas one. In this most blatantly nals, 

partisan document, judges up for election in 1992 (among them 

Judge Wood) are spared the impact of the Plaintiffs’ and Mattox!’ 

political deal while those incumbents up for election in 1990 

bear the entire weight of maximum displacement and disruption of 

the system. Double-weighting minority legislative districts, as 

 



the Plan most cynically does, force-feeds 100% of what Mattox and 

the Plaintiffs believe is their entitlement and more into an 

election in which only one-half of the judges are up for 

election, in naked disregard of constitutional and statutory law, 

or indeed of any concern other than pure politics. Were the 

interim Plan made permanent and were sufficient minority 

candidates to offer themselves up for districts currently 

represented by minority legislators, 36 of Harris County's 59 

district judges would be minority, i.e. 61%. Only four of these 

judges would have any substantial judicial experience. Under- 

scoring his political motivation in reaching such a "settlement" 

with the Plaintiffs, Mattox announced his candidacy for Governor 

on the Democratic ticket one day after presenting his and the 

Plaintiffs' Plan to Judge Wood and the press simultaneously as a 

fait accompli. 
  

3. In light of the foregoing, Mattox' representation in 

paragraph 1 of his Statement concerning non-partisan elections is 

either disingenuous or blatently hypocritical: 

In voting rights cases such as this one, federal courts 
are obligated to tailor the remedy (even an interim 
one) .to the violation and, in doing so, +o respect 
policy choices expressed by the state legislative body. 

Statement at 1. Mattox' and the Plaintiffs' plan goes vastly 

beyond any remedy to the violation found. Thus its "respect" for 

policy choices expressed by the state legislature is .actually 

nothing more than respect for the political support those 

legislators stand to give Mattox in return for increasing their  



  

‘ ' 

S # 

political power over the judiciary, power which in the past 

legislators did not have. | 

4. The LULAC/Mattox plan is, as Judge Wood has pointed 

out, designed to maximally disrupt the judicial election district 

in nine of Texas' most populous counties and to create maximal 

unfairness in the interest of promoting Mattox' and the 

Plaintiffs' political ambitions.l/ Despite the Plaintiffs’ and 

Mattox' delicacy in referring to the specifics of their Plan, the 

Court cannot fail to notice that it assigns state district judges 

to the legislative districts of the legislators who now rush to 

embrace it, and, in particular, it assigns twice as many judges 

to heavily minority Democratic districts as to other districts, 

thereby injecting heavy Democratic political influence into state 

  

1/ In her Objections to Mattox' and the Plaintiffs' Proposed "Remedial" 
Plan, Judge Wood enumerated many violations of the United States and 
Texas Constitutions and of the laws of the State of Texas and the 
personal interest of its judges and its voters than ran rampant through 

that plan. She would now bring to the Court's attention the statement of 
Mattox' own expert, Rice University Professor Bob Stein, that Mattox' 
"Remedial" Plan may inherently violate the United States' constitutional 

guaranty of one-man, one-vote in that 

"If you look at 10 minority districts and 10 white 

districts, you notice that turn-out rates are incredibly lower 
in minority districts," Stein said. "If that is the case, if 
you are electing 20 judges from 10 districts in districts with 
very low turn-out, every person's vote counts a lot more than 

in the other districts." : 

Stein said he is "not so certain that might not be in 
conflict with the concept of one-person, one-vote, legally and 
ethically." 

"Judicial Redistricting Plan May Be Flawed," The Houston Post, December 21, 
  

1989 at A-38, a copy of which is attached hereto as Exhibit "A." 

 



  

pe 4 

judicial elections. That those favored Democrats now eagerly 

adopt the Plan Mattox and the Plaintiffs hand them is Ravdly 

surprising, but it in no way indicates any concern for the 

interests of the present judicial election system, which Mattox 

is sworn by statute and the Texas Constitution to uphold, nor any 

concern for the best interests of the state, the voters, or the 

judiciary. To the contrary, Mattox' drumming up support from 

Democratic legislators and attaching that support to his proposed 

interim plan as a "Supplement" is an abject example of the most 

nakedly cynical aphorism there is: "To the victor belongs the 

spoils." 

6. It is deeply ironic that, despite the Plaintiffs" 

insistence throughout this litigation that partisanship was 

irrelevant to minority vote dilution, the Plaintiffs now join 

Mattox in overtly fighting for the very spoils the genuine 

Defendants argued throughout this case that the Plaintiffs were 

covertly seeking: partisan influence over mini-districts drawn to 

maximize special-interest political influence over judges at any 

cost to the constitutional and statutory rights of the judges and 

voters of the state of Texas. In this regard, Judge Wood would 

"call to the Court's attention the statement made by Jesse oliver, 

a named Plaintiff in this cause of action, in an ex parte letter 

to the Court attached to Mattox’ Statement, hae he supports 

partisan elections because it ensures attention to partisan 

interests (as opposed to the election of impartial judges which 

the Plaintiffs have heretofore maintained was their goal) to-wit: 

 



  

"The preferred candidate of black voters will continue 
to be black, brown or non-minority candidates who 
support those issues which the black voting population 
feels is important to it." 

Should the point not be sufficiently clear, Oliver continues, 

It is well known that the drop-off in minority voting 
and run-off elections is historically large and in the 
past has been sufficient to cause minority candidates 
[to] lose elections with the field was reduced to one 
non-minority candidate and the non-minority voters 
voted as a bloc to elect the non-minority candidate.... 
Such elections would only allow for the ' continued 
inability of black voters to elect the candidate of 
their choice. 

Id. In other words, what the Plaintiffs themselves really seek 

in this case is to force the Court, against the wishes of the 

vast majority of Texas voters and in disregard of their rights , 

to impose on the target counties mini-judicial districts drawn on 

racial lines which insure Democratic majorities so that black 

Democratic candidates who will "represent" the interests of the 

black community cannot fail to win election. 

7. The plaintiffs' claim that they have a right to elect 

black Democrats to ensure the representation of black interests 

in the judiciary is exactly the type of claim that the Supreme 

Court found invalid in Whitcomb v. Chavis, 403 U.S. 124 (1971), 
  

-as Judge Wood pointed out in her Post-Trial Brief at 34-39, in 

opposition to the Plaintiffs' claim that partisanship is ir- 

relevant to a vote dilution claim. It is doubly ironic that 

Mattox, along with the Plaintiffs, now seeks to clothe himself in 

the authority of Whitcomb as somehow offering support for his 
  

"Remedial" Plan. See Statement at 3. Had Mattox read Whitcomb, 
  

he would have discovered that while Whitcomb recognizes the role 
  

 



  

of partisanship in the election of "representatives" (which is 

what Mattox and the Plaintiffs want it to do), it refuses to 

label as discrimination against minorities losses which are 

actually attributable to Democrats running at-large in counties 

with Republican majorities and to force the creation of mini- 

districts to: "correct" for such partisanship. Mattox then 

compounds the irony by accusing Harris County's Judges in the 

press of rascism--a charge that not even the Plaintiffs’ alleged 

at trial. 

8. In the context set out above, Mattox' "Supplement" and 

his disingenuous Statement in support of partisan elections as 

opposed to non-partisan elections constitute a clear breach of 

his ethical and statutory duties to the named Defendants and the 

state district judges whom he used to--but no tonsel does-- claim 

to represent, i.e. those judges whose wishes he has never seen 

fit to consult. That breach of fiduciary duty is all the more 

egregious since until the Court rendered its memorandum opinion 

Mattox vigorously asserted his sole right to represent the state 

district judges in their official capacity and his professed 
N 

intention to defend the system established by Texas 

Constitution and statutes. For example, in Defendant's Response 

to Motions to Intervene by Dallas County Plaintift-Tneervencrs 

and Travis County Defendant-Thtervenore, dated February 7, 1989, 

-the Attorney General, =&s counsel for the original State 

Defendants, stated: 

"[Tlhe defendants do not oppose the motion for inter- 
vention bv the Travis Countv Defendant-Intervenors in 

 



  

their individual capacities. The Attorney General of 
Texas already represents the interests of sitting state 
district judges in their official capacities, cf. Order 
of January 27, 1989, denying Midland County's interven- 
tion at 5 (Texas Attorney General represents the 
interests of the State of Texas); however, such judges 
have not heretofore been represented in their indivi- 
dual capacities. 2/ 

Similarly, in Defendants' Response to Motion to Intervene by 

Harris County Defendant-Intervenor Wood and Midland County's 

Request for Reconsideration of Order Denying Intervention, Mattox 

stated: 

Putting aside the inaccurate, ill-informed representa- 
tions about such matters as whether there is substan- 
tial opposition to the Plaintiffs' suit, the Defendants 
do not oppose Judge Wood's intervention in her indi- 
vidual, or personal, capacity. 

As the Court recognized in its Order denying Midland 
County's Motion to Intervene, the Attorney General 
represents the interests of the State of Texas in this 
matter. The office of district Judge is .a state 
Office, not a ‘county office. Under state law, the 
Attorney General is the authorized attorney for the 
state and its offices in civil litigation. See, 8,F.y 
Charlies Scribner's Sons v. Marrs, 262 S.W. 722, 337 
(Tex. 1924); Brady v. Brooks, 89 S.W. 1052, 1056-57 
(Tex. 1905); Bullock v. Texas Skating Association, 583 
S.W.2d 888 (Tex. Civ. App.--Austin 1979, writ ref'd 
n.r.e.); see also United States v. Texas, 680 F.2d 356, 
368, n. 16: {5th Cir. 1982). By comparison, when a 
state district judge is sued in federal court in a 
personal capacity for actions associated with judicial 

x activity, the judge has the option of seeking represen- 
: tation from the Attorney General or from private 

counsel. See, e.g., Texas Government Code § 402.024 (a) 
(State District Judges). 

  

  

  

  

  

  

  

2/ The Court had previously denied Midland County permission to intervene as 
a Defendant on the grounds that the county lacked a protectable interest 
in the litigation and that whatever interest the county did have was 
adequately protected by the Texas Attorney General "absent allegations of 

(Footnote Cont'd) 

 



As a result of these representations, the Court was affirmatively 

misled by the Texas Attorney General into denying Midland 

County's Motion for Reconsideration and into permitting the 

intervention . of district judges from Dallas County, Travis 

County, and Harris County "in their individual capacity" only. 

Order. signed and entered March 1, 1989 .—3/ 

In response to a threat from the Plaintiffs to seek 

attorney's fees from district judges allowed to intervene in 

their individual capacities and the response from the Attorney 

General that it would not consider itself liable for attorney's 

fees chargeable to work done because of the interventions, the 

Travis County Judges filed a Motion to Modify Order Allowing 

Intervention, seeking to intervene in their official capacities 

only. See Motion filed April 13, 1989 and letter from William L. 

Garrett, attorney for the Plaintiffs, to Attorneys for all 

Defendant-Intervenors dated March 13, 1989, attached thereto. 

Mattox replied, 

  

(Footnote Cont'd) 

collusion, nonfeasance, or adversity of interest." Order signed and 

entered January 27, 1989. 

The Court refused Midland County's Motion for Reconsideration, in which 
Midland County sought intervention not only on its own ‘behalf but as the 
legal representative of several named district judges in their individual 
and official capacities and submitted that its interests. were not 
adequately represented by the Texas Attorney General. Midland County's 
Request for Reconsideration of Order Denying Intervention, dated 
February 24, 1989; Order signed and entered March 1, 1989, regarding 
various motions to intervene. The Court's Order denying Midland County 
permission to intervene was subsequently upheld by the Fifth Circuit on 
the ground that the district court did not err in finding that Midland 

(Footnote Cont'd)  



  

In their official, as opposed to their individual (or 
personal), capacities, the Travis County District 
Judges are state officials. Unless he has authorized 
their retention of outside counsel (which he has not), 
the Attorney General of Texas is their legal authorized 
attorney in civil litigation. 

State Defendants’ Response to Travis County District Judges’ 

Motion to Modify the Order Allowing Intervention, filed April 24, 

1989. The Attorney General urged that the modification motion be 

denied. I4. : 

Given such a clear statement from the Texas Attorney General 

regarding his sole and absolute right (and duty?) to represent 

all state district judges in their official capacities and his 

refusal to permit judges to retain counsel of their own, the 

Court denied the Travis County judges' motion. Order signed and 

entered April 25, 1989. The Travis County judges thereupon moved 

to strike their own intervention, a motion which the Court 

granted. Motion dated May 2, 1989; Order signed and entered 

May 5, 19389, 

In retrospect, the consistent opposition of Mattox to state 

district Jjudges' attempts to represent their own official 

interests in this case seems to have been designed from the start 

. to mislead the Court and to attempt to control the defense of 

this important litigation. Despite his subterfuge, however, 

Mattox' true interests emerged in the wake of the Court's 

  

(Footnote Cont'd) 

County's interests were adequately represented by the Texas Attorney General. 
LULAC v. Clements, 884 F.2d 185, 189 (5th Cir. 1989). 
  

 



  

Memorandum Opinion and Order of November 8, 1989, as has been 

well-documented in the press, even as they were withheld from his 

own clients. See Robison, "Mattox, LULAC to hold talks on ways 

to pick district judges," Houston Chronicle, December 16, 1989, 
  

p. 16A at col. 5 ("Attorney General Mattox has always in his 

political life liked the idea of smaller districts, [Special 

Assistant District Attorney Reneal] Hicks added."); Borges, 

"Mattox Sounds Warning On Judicial Appointments," Texas Lawyer, 
  

December 4, 1989, at 8, col. 2 ("Stressing that his statements 

reflected his personal opinion and not necessarily those of other 

state leaders, Mattox said Nov. 30 that minorities have now 

proven in a court case that the at-large system dilutes minority 

voting in some counties."); Elder and Hunter, "At-Large Judicial 

System On the Ropes," Texas Lawyer, November 13, 1989, at 11, 
  

col. 1 ("The current system has few defenders, for a variety of 

reasons, Mattox wrote Clements Nov. 9."). Copies of all relevant 

newspaper articles are attached hereto as Exhibit "B." 

Mattox' rush to capitulation without any consultation with 

the DefendantrIntervenors or other state officials or district 

judges is confirmed not only by the outrage at his activities 

' expressed in the press by numerous judges and by Judge Wood's 

pleadings, which clearly indicate Mattox' lack of consultation 

with her and his disregard of her interests, it it ales confirmed 

by a suit filed in state district court by State District Judges 

‘Ted Poe (Republican) and Charles Hearn (Democrat), charging 

Mattox with conflict of interest and nonfeasance. See Exhibit 

 



  

TA": Warren, "Harris County District Judges reel at news," 

Houston Chronicle, Wednesday, December 20, 1989, at 16a,   

cols. 1-6; Hailey, "Judicial election plan on table, Mattox 

says," The Houston Post, December 16, 1989, at A24, cols. 1-2;   

Hensel, "Judicial redistricting plan may be flawed," The Houston 
  

Post, December 21, 1989, at A-37 - A-38; Mason, "Judge bars 

  

Mattox from role in lawsuit," Houston Chronicle, December 23, 

1989, at A-17, cols. 1-4. That suit was dismissed only when 

Mattox, for the first time, made the representation to the Court 

that he had never represented the State's district judges. 

Significantly, in a hearing in the Hayris County state 

district court suit on December 23, 1989, granting a temporary 

restraining order preventing Mattox from representing State 

District Judges Poe and Hearn, Assistant State Attorney General 

Rich Tomlinson, representing Mattox, said: 

Mattox never purported to represent the judges in the 
federal case, and agreed to this settlement on behalf 
of the state as the state's attorney. 

Exhibit "A": Mason, "Judge bars Mattox ...," at cols. 1-2. In 

the same hearing, in flat contradiction to the representation by 

Rich Tomlinson that Mattox never purported to represent the 

judges in the referenced case, | 

Renea Hicks, also representing Mattox at the hearing, 
noted that, ironically, Schneider [attorney for Judges 
Poe and Hearn in the state case] has no authority to 
represent the judges in their official capacity. as 
elected officials. 

"Only the attorney general of the state of Texas 
has that authority," Hicks said. 

 



  

  

County District Judges reel at news," Houston Chronicle, Wednes- 

day, December 20, 1989, .at 16A, cols. 1-6; Hailey, "Judicial 

election plan on table, Mattox says," The Houston Post, Decem- 
  

ber 16, 1989, at A24, cols. 1-2; Hensel, "Judicial redistricting 

plan may be flawed," The Houston Post, December 21, 1989, at A-37 
  

- A-38; Mason, "Judge bars Mattox from role in lawsuit," Houston 

Chronicle, December 23, 1989, at A-17, cols. 1-4. That suit was 
\ 

dismissed only when Mattox, for the first time, made the repre- 

  

sentation to the Court that he had never represented the State's 

district judges. 

Significantly, in a hearing in the Harris County state 

district court suit on December 23, 1989, granting a temporary 

restraining order preventing Mattox from representing State 

District Judges Poe and Hearn, Assistant State Attorney General 

Rich Tomlinson, representing Mattox, said: 

Mattox never purported to represent the judges in the 
federal case, and agreed to this settlement on behalf 
of the state as the state's attorney. 

Exhibit "A": Mason, "Judge bars Mattox ...," at cols. 1-2. In 

the same hearing, in flat contradiction to the representation by 

Rich Tomlinson that Mattox never purported to represent the 

"judges in the referenced case, 

Renea Hicks, also representing Mattox at the hearing, 
noted that, ironically, Schneider [attorney for Judges 
Poe and Hearn in the state case] has no authority to 
represent the Judges in their official capacity. as 
elected officials. 

"Only the attorney general of the state of Texas 
has that authority," Hicks said. 

 



  

Poe noted after the hearing the apparent irony of 
the Attorney General representing judges in their 
official capacity but not as unnamed Defendants in the 
federal lawsuit. 

"The bottom line is the attorney general does not 
represent me," Poe said. 

Id. Judge Poe's comment says it all. This Court must find 

Mattox' post-trial position shocking in light of Mattox" 

pre-trial efforts to prevent judges from being represented by 

other counsel in their official capacity. 

In Judge Wood's view, Mattox has taken a position adverse to 

his clients and is disqualified from representing the State or 

any of its officials, including the district judges, and Judge 

Wood herself. She further believes that Mattox' purported 

representation of the state officials and district judges, 

including herself, under such circumstances, violates the Texas 

Disciplinary Rules of Professional Conduct, specifically rules 

1.02(a) (2) (settling against the wishes of the client) and rule 

1.06 (conflict of interest). Patently, Mattox does not represent 

the State's Governor, Lieutenant Governor, House Speaker, 

Secretary of 6 State, Chief Justice, Administrative Judges or 

district court judges. Who does he represent? 

Judge Wood would also add that the Attorney Getiszal’s covert 

and overt activities in this case prove the very "collusion, 

nonfeasance or adversity of interests" deemed ‘By the Fifth 

Circuit and held by this Court to constitute grounds for finding 

-that the Texas Attorney General does not adequately represent the 

interests of Texas' state district judges. See Order entered 

 



  

January 30, 1988 at 5, denying Midland County's intervention; see 

also Kneeland v. National Colegiate Athletic Ass'n, 806 F.2d 
  

1285, 1288 (5th Cir. 1987) (citing Bush v. Viterna, 740 F.2d 350, 
  

355 (5th Cir.  1984)). 

In support of her claim that Mattox does not adequately 

represent her in her official capacity as a state district judge, 

and in light of the evidence set forth above ‘that he never 

intended to defend vigorously the present system of electing 

state district judges and that his interests as a Democratic 

candidate for Governor are in direct conflict with his duties as 

counsel for the State and its officials in this case, Judge Wood 

requests that Mattox disqualify himself generally and speci- 

fically as her attorney in her official capacity and permit her 

to retain private counsel to represent both her individual and 

her official interests in this case. A copy of Judge Wood's 

letter to Attorney General Jim Mattox dated December 29, 1989, is 

attached hereto as Exhibit "C". 

WHEREFORE, for the foregoing reasons, Judge Wood respectful- 

ly requests that the Court immediately certify this case for 

interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and that it 

! approve no interim or permanent remedy pending appeal, certainly 

not until all parties in interest have been notified that 

Attorney General Mattox is not and has not been representing them 

Yl 

 



§ # 

  

and they are given an opportunity to secure counsel in their 

official and individual capacities and to have effective input 

into a remedy. 

Respectfully submitted, 

PORTER & CLEMENTS 

J] Eugene Clements So 
3500 NCNB Center 

.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

  

   

  

  

ATTORNEY FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 

Houston, Texas 77210-4744 
(713) 226-0600 

Michael J. Wood 
Attorney at Law ; 
440 Louisiana, Suite 200 
Houston, Texas 77002 
(713) 228-5105 

-15 - 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the 20" 3ay of December, 1989, a 
true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N, St, Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 

in Mr. Renea Hicks, Spec. Assistant Attorney General 
a Mr. Javier Guajardo, Spec. Assistant Attorney General 

P. O. Box 12548 

Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

 



  

py - 

' 

  

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

: 

— Bn 

‘Jd. Eugene Clements 

  

  

WO005/06/cdf 

 



    
- 

  

   

          

   

    

     

    

   

ravi A-J/ 

help him win the governorship, McSpadden claimed Mattox is try- Ing to sacrifice the state judiciary for personal gain. : 
“Personally. if | were going into a courlrvomt and | had to have an attorney and had a choice between Dalfy Duck and Jim Mattox, | would be retaining Mr. Dyck right now," the judge said. 
McSpasddec:i and SEVEIL ailiers among Harri: County 5 |] | Republi. an judges up for re-election me! vednesday to discuss the proposal [hey met to determine where ail of he incumbent judges liva in ~asp Mattox plan is accepted. he @id. 

The judges discussec: 

would not be 

_ er. 

other Republican 
tion, said no deals 
the meeting. Pre 

predicted clos if 
linpiemented. 

“The allus ey getier js 
to urhold the 
against ail altackers,” :ajc “He apparertly has ope, 
without a whimper fc. 

_ Rilowi only {vo himseil 

Aial!, 

   
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» oh Che Houston Post 
*+ THURSDAY, December 21, 1989 + 

  

re 

State District Judge lod Pen, an- 
up ‘or re.-~lec 
wer? mr le 

; also had hiusip words for the attorney saner! and ; 

Poe. 

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their nref- i 
erences for the districts they “vould. s choose to run in, he said, so ihero | \ : four or five good: judges facing off against each oth- 

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Lhe judicial redistricting plan 
agreed upon by Attorney General 
Jim Mattox and plaintiffs in a minor- 
ity voting rights case may violate the 
concept that all votes have equal 
weight, one of Mattox's own experts 
said Wednesday. 

Rice University political science 
professor Bob Stein said preliminary 
‘data he has compiled show that, be- 
cause of Harris County voting nat- 
teries, a vicialion of the one-person, 
~ne vols soacent mar La inherent 
11 the redis ricting proposal. 
Matte <'s office tired Stein earlier 

this ear as an exper! witness for a 
federal trial on a lawsuit filed by mi- 
nority groups ciallznging the meth- 
od of electing district judgas in Tax- 
as. 

U.S. District Judge Lucius Bunton 
riulec last month in that case, saying 
the “ountywide system cf electing 
judges. violates the U.S. Voting 
Rights Act by diluting minority vot- 
fng strength. 

Mattox announced a proposed le- 
gal settlement Tuesday between his 
office and th» League cf United Lat- 
in American Citizens that would 
elect state district judges in Harris 
ard e:ght other counties from legis- 
lative districts. The proposal calls for 
voters in 10 of the 26 legislative dis- 
tricts in !Hairis County to elect two 
judges instead of one. 

These particular districts were 
chosen because they have large mi- 
nority constituencies, but Stein said 
that in itself presents the problem. 

“If you look at 10 minority dis- 
tricts 2nd 10 white districts, you no- 
tice that turnout rates are incredibly 
lower in minority districts,” Stein 
said. “If that is the case, if you are 
electing 20 judges from 10 districts 
in distiicts with very low turnout, 
every persons vote counts a lot 
more than in the other districts." 

Stein said he is "not so certain 
that might not be in confiict with the 
concept of one-person, one-.ote, Je. 

- gally and ethically.” : 
He :aid he is in the process of 

“making a systematic cor:pariscn of - 

lox's plan after outgoing Lt. Gov. 
Bill lobby sent him a memo asking 
for his opinions. Hobby is scheduled | 
to teach at Rice next year. 

Even if the plan violates the spirit | 
of the law, Stein said it probably is 
“a good temporary plan” until a per- 
manent one can be addressed by the 
Legislature. He said if it achieves the 
goals Bunton envisions, the judge 
may “stretch” the parameters of the 
Lne-persoii, one-vole concept. 

Tho districts that have been 
tapped for two judicial places under 
the Mattos proposal are Districts 
131, 132.138, 139. 141. 142, 143, 
146, 147 and 148. Those districts 
are concentrated in central, east and 
south Houston. 

Only six of the county's 59 district 
judges are minorities. Three are 
black, and three are Hispanic. 

The Mattox plan will be submitted 
to Bunton on Friday. 

[Last month, Bunton ruled that the 
al-large system of electing state dis- 
trict judges in nine counties — Har- 
ris, D-llas, Tarrant, Bexar, Travis, 
Jefferson. Lubback. Ector and Mid- 
lan — makes it difficult for blacks 
and Hispanics to be elected. He 
threatened to postpone 1590 judicial 
elections unless the Legislature re- 
vised the system by Jan. 3. J 

Under the interim plan for 1990 
elections proposed by Mattox and 
supported by 16 of the state's 31 
senators, candidates would not have 
to live in the districts in which they 
run. And although they would be 
elected by district, the judges would 
retain countywide jurisdiction. 

Mattox called the proposed settle- 
ment “the right thing to do.” 

However, Harris County judges 
continued Wednesday to blast the 
proposed agreement, which they say 
was made without consulting the 
judges, who are parties to the law- 
suit. ; 

State District Judge Michael 
McSpadden lambasted Mattox, say- 
ing the 2ttorney general is deluding 
himself into thinking his actions will, 

Please see JUDGES, A-38 

  

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  EXHIBIT np 

    

Mtox, LULAC to hed talks 
on ways to pick district judges! 
  

By CLAY ROBISON 

Houston Chronicle Austin Bureau 
  

AUSTIN — Attorney General Jim 
Mattox and the League of United 
Latin American Citizens will begin ° 

negotiations Monday on ways to 
select state district judges in Harris 

fin next year’s elections. 
Assistant Attorney General Renea 
. Hicks on Friday confirmed that ne- 
gotiations are set to begin, as rumors   - swirled about U.S. District Judge 

. Lucius Bunton’s ruling against at- 

* and eight other urban Texas counties 

large fat judge cleckiont | in the: 
nine comity, k 

Earlier Friday, Texas Supreme: 
Court Chief ‘Justice Tom Phillips; 
Mike Toomey, Gov. Bill Clements’ 
chief of staff; and a number of Harris | 
County judges said they had heard: 
that Mattox had reached af agree 
ment with. LULAC.. 

Hicks, hoy ever, flatly denied the 
report, saying Mattox had agreed 
only Thursday to begin negotiations 
with. LULAG, a plaintiff in the law- 

i+ See JUDGES on Page 16A. 
Nie, i : . : ro vi 3 : oritme : 

$ 

  

  

  

Judges 
Continued from Page 1A. 

suit that led to Bunton's decision. 
Bunton's clerk reported Friday 

that no agreement between the 
parties had been filed with the 
judge's office. 

Because Clements didn't allow the 
Legislature to address the issue dur- 
ing the recent special session on 
workers’ compensation reform. Bun- 
ton has asked parties to submit plans 
for an interim solution for the 1990 
elections. 

Hicks said LULAC has the “upper 
hand at this point” because Bunton 
has “made clear he’s going to order a 
change for 1990.” 

“Attorney General Mattox has al- 
ways In his political life liked the 
idea of smaller districts,” Hicks ad-- 
ded, 

Antonio said his group will seek state 
‘representative districts used in the 
1990 election of 36 Harris County 
judges. 

Because there are 26 legislative 
districts in Harris County. some dis- 
tricts would have more than one 
district court bench on the ballot. 
LULAC is seeking use of the same 

plan in Dallas, Tarrant and Bexar 
counties; judges in Travis County 
would be elected through use of 
justice of the peace precincts: and 
the remaining counties would use 
county commissioner precincts. 

Hicks said any agreement that the 
state and the plaintiffs may reach on 
an election plan for 1990 wouldn’t’ 
preclude an appeal of Bunton's or- 
der. 
Meanwhile. Phillips. a Republican. 

asked Bunton to order non-partisan 
elections. for «district judges in. the 
nine counties affected hy the lawsmt 

In negotiations with the state, LU- 
LAC attorney Rolando Rios of San 

- ay ge 4 gi] 

as part of a temporary solution. Ty 
Under Phillips’ plan. which Demo§ 

cratic Supreme Court Justice Franks 
lin Spears endorsed. Bunton woul 

‘enjoin 1990 primary elections for the 
affected district judges. Their races 
would be decided in the November 
1990 general election, with runoffs 
held in December, if necessary. } 

Delaying elections unti] Novem% 
ber, Phillips said, would give the 
Legislature and the U.S. 5th Circuit 
Court of Appeals “a meaningful op& 
portunity to exercise their respec 
tive responsibilities in this matter."yg 

In his submission to Bunton, PhilX 
lips suggested that non- partisam 
elections for 1990 could be held 
countywide or from districts td 
which courts would be assigned an 
domly. 

Clements. who met with Buntort 
this week to try to buy the state mor 
time. in the case. has joined with:Lt1 
‘Gov. Bill Hobby and House, Speaker 
Gib Lewis in endorsing a plan under 
which the: governor would appoint 
“judges and voters would decide peri 
odically whether they should remairg 
on the bench.: 

But that plan has little: Shpport ind 
the Legislature. 

Not all state district judges are in 
agreement about how they should i. 
selected. 

Jim Barr. a Republican criminal 
court judge in Houston, said judge 
should continue to be elected co] 
wide to avoid political influence b 
constituents in a small area, such asf - 
the state representative districts. 

“Most of us are not too concerneds 
about whether it is partisan or non-§ 
partisan.” Barr said. as long as ¢lec-3 
tions are countywide. 3 : 

Bill Harmon. another Republican} 
in a criminal court, slot. said hej} 
favors a “merit selection” system of® 
judges. But as long as. Slectonsy 
continun, udges need to! lioned® 

swith : show the 
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    LAWYER © DECEMBER 4, 1989 

  

AG: Voting Rights Quick Fix Has a Hitch 
  

BY WALTER BORGES 

Any state action to create an ap- 
pointive system for selecting state 
Judges — the plan now favored by the 
state’s top executive and legislative 
officials — probably will not win fed- 
eral approval, Texas Attorney Gen- 
eral Jim Mattox said Nov. 30. 

“I see no reason to think that [fed- 
eral officials] would approve an ap- 
pointive system,” Mattox said, add- 
ing that state officials would have a 
hard time proving that minorities 
would have a better chance to be- 
come judges under a gubernatorial 
appointment plan. 

For the first time, Gov. Bill Cle- 
ments on Nov. 29 joined two previous 
supporters — Lt. Gov. William Hobby 
and House Speaker Gib Lewis — in 
endorsing an appointive judicial se- 
lection system. 

Clements spokeswoman Rosanna 
said Nov. 30 the governor 

favors an appointment system only 

  

intment system. 
The plan, first implemented in 

Missouri, uses a nominating com- 
mission to select at least three can- 
didates for gubernatorial appoint- 
ment. Appointed judges must run in 
retention elections at the end of each 
term to determine if they will con- 
tinue on the bench. 

Although Clements, Hobby and 
Lewis support the from direct 
election of judges to an appointive 

  

   | 

| 

| 
| 

| 

| 
| 

| 

  

system, others aren't so sure that 

trict Judge Lucius Bunton III, the 
federal judge who last month held 
that at-large election of district 
judges in nine Texas counties dis- 
criminates against minorities in vio- 
lation of the U.S. Voting Rights Act. 

As a state subject to section 5 of the 
Voting Rights Act, any new judicial 
selection plan must gain the pre- 
clearance of the Justice Department. 

A delegation of legislators and 
judges, including Texas Supreme 
Cours i} Cale! Justice Thomas 

Washington in April to sound 
i i officials on a similar ap- 
pointment-retention election a 
but returned home without much 
S808 of how Justice would view the 
Pp 

Stressing that his statements re- 
flected his personal opinion and not 
necessarily those of other state lead- 
ers, Mattox said Nov. 30 that minor- 
ities have now proven in a court case 
that the at-large system dilutes mi- 
hm, 

numbers of minority j 
“It would be hard to show that 

Governor Clements’ appointments 
would reflect the same thing that 
would result from an elective pro- 
cess,” Mattox said. 

A recent study by a liberal think 

  

  

  

  

          

      

  

    

  
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AG EM MATTOX: “‘It would pe hard 
to show that Governor Clements’ 
appointments would reflect the 
same thing that would result from 
an elective process.” 

tank supports Mattox’s conclusions. 
In a report prepared for the Texas 
Policy Research Forum, University 
of Texas School of Law professor 
Samuel Issacharoff found that of 36 
judicial appointments made by Cle- 
ments between Jan. 20, 1987, and 
Jan. 31, 1989, 33 were white, three 
were Hispanic. and none were black. 

  

  
  

  

member districts for some district 
courts. 

jgthony Champagne, a judicial 
politics specialist who teaches at the 
or of Texas at Dallas, also 
said federal approval of an ap- 
pointive system would be hard to 
win 

“I don’t see that anything has 

  

  

  

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CONTINUED FROM PRECEDING PAGE 
  

election plan [an appointment 
retention election system similar to 
the Missouri plan] said they could 
not get pre-clearance from the Jus- 
tice Department,” Champagne said. 
“It’s going to take a new wrinkle in 
the plan to win approval.” 

Clements and the legislative lead- 
ers aiso have agreed to seek resolu- 

i tions from the House and Senate that 
seek to head off Bunton's threat to 

' suspend elections of district judges in 
| nine counties unless the state dem- 

onstrates by Jan. 3 some effort to 
. change the existing at-large system. 

“Judge Bunton probably will not 
accept from the Legislature a prom- 
ise of action in the future,” said 
Mattox, a Democrat seeking to suc- 
ceed Clements in 1990. 

Although Clements called Nov. 29 
for immediate state action to address 
Bunton’s concerns, the governor 
didn’t say what specific action legis- 
lators should take. 

The governor's own inaction has 
blocked any consideration of legisla- 
tive remedies during the current 

ial session. Clements, who con- 

compensation reform bill is passed. 

Both House and Senate com- 
mittees began consideration of cor- 
rective measures in mid-November 
in anticipation that Clements would 
allow action. 

But the governor’s intransigence 
led House Speaker Lewis to call for a 
“trust-me” resolution Nov. 27 asking 
Bunton not to follow through on his 
intention to halt judicial elections in 
1990. 
Although the ‘‘do-nothing, trust- 

me” approach becomes more attrac- 
tive to legislators each day of the 
waning session, Texas Supreme 
Court Justice Oscar Mauzy is urging 
swift action. 

“This Legislature could do some- 
thing within 48 hours if the governor 
opened the call,” Mauzy said Nov. 28 

r urging a House committee to 
consider creating single-member 
districts for the state's 14 appeals 
courts and two high courts. 

Acknowledging that legislation 
correcting the district court situation 
was stalled by the governor's in- 
action, Mauzy urged the House 
Committee on Judicial Affairs to 
propose an amendment to the Texas 
Constitution establishing single- 
member electoral districts for the 
Supreme Court, Court of Criminal 
Appeals and the 14 courts of appeals. 
The panel has taken no action on any 
amendment. 

Clements has no role in the legis- 
lative process for recommending 
constitutional amendments, Mauzy 
said. That process requires only con- 
current resolutions from both the 
Senate and House and subsequent 
approval by voters. 

The governor's inaction notwith- 
standing, legislators have come up 
with plans to address the Bunton 
ruling, which affects judicial elec- 
tions in nine Texas counties. 

Sen. Ted Lyon, D-Rockwall, and 
Rep. Patricia Hill, the Dallas Re- 
publican who chairs the House judi- 
cial affairs committee, are among the 
legislators filing early proposals. Hill 
filed a package of two bills and a 
proposed constitutional amendment 
that would rework the selection 8ys- 
tem for district court judges only. 

Lyon’s Senate Joint Resolution 3 
would provide a comprehensive 
overhaul of all three tiers of the state 
courts. Hill proposed non-partisan 
election of the district judges, with 
vacancies being filled by guberna- 
torial appointments. The appoint- 

  

DECEMBER 4, 1989 ® TEXAS LAWYER 

ments would be made from a list of 
three candidates submitted by a 15- 
member nominating commission. 

Hill's inci 
® House Bill 51, which would 

mandate non-partisan elections. 
Voters in party primaries would re- 
ceive separste judicial ballots and 
independent voters could also vote 
for judicial candidates. 

® House Bill 59, which would es- 
tablish nominating commissions in 
each of the state’s 254 counties, for a | 
total of 3,810 commissioners. The 
governor would appoint four mem- 
bers of each commission and the | 
lieutenant , House governor, speaker 
and State Bar president would each | 
appoint three. The remaining two 
slots would be filled by appointees of 
the state chairs of the two parties | 

ceding gubernatorial election. The 
| commission would submit three 
names to the governor for each va- | 

. cant bench. 
® House Joint Resolution 7, a | 

| proposed constitutional amendment 

  

judge for his or her district, elimi- 

       

    

Lyon proposed: 
€ Establishing single-member 

istricts for both of the stste’s high I 
courts, the 14 appellate courts and | | 
the district courts. Candidates for 
benches would be required to be 

    

NOW=- 

    

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NOVEMBER 13.1 13.1989 ¢ VOL. 5. NO. 34 © $6.00 « TWO SECTIONS 

Texas Lawyer 
  
      

  

  

      

  

  

BY TED CILWICK 
  

The $59 million that Ramon Gar- 
c1a convinced a jurv to bestow on his 
cients in 1987 was the largest ver- 
dict in the history of Hidalgo County 
— one of a dozen million-dollar jury 
awards Garcia has won. 

In another case four months later, 
he negotiated a $6.7 million settle- 
ment of a wrongful death suit for his 
cilents — a widow and her three 
daughters. 

Racking up substantial judgments 
1s nothing new to the 4U-vear-old 
Edinburg plaintiffs’ attorney. who 
has engineered an extraordinary 
number of successes. 

But, while many of those perform- 
ances have turned to gold. others 
have turned to grist for accusations 
and litigation against him by clients 

  

see = Ty 

A PUBLICATION OF AMERICAN LAWYER MEDIA. L.P. 

   

Ramon Garcia and the 
High Price of Success 

be 

HipaLco COUNTY JusTICE™ 
Second of Two Parts 

. 
“8 

  

and business associates. 
After both 1987 million-doliar 

cases, for instance. his clients suec 
him. alleging. among numerous 
things. that he had improperly raised 

his contingency fee at the eieventh 

hour. 
Perhaps the only common thread 

in the Garcia paradox 1s money: 
winning it. investing it, fighting over 

BR
AD
 

DO
VE
 

AR
TY
 

  
| LITIGATION 
| BATTLEGROUND: 
| Garcia vehemently 

denies allegations 
he sought to use 

j his financial 
backing of an 
Edinburg funeral 

| home as a way to 
solicit clients for 

i wrongful-death 
suits. 

it with clients and an ex-law partner, 
donating large amounts of it to judi- 
cial candidates. 

And Garcia. who has uniformly 
denied recurring accusations of un- 
ethical conduct. can point to this 
bottom line: Except for an occasional 
pav-out to quietly settle a case 
against him. no critic has succeeded 
in inflicting on him the sizeable 
judgments he wins for others. 

Moreover. his public disciplinary 
record 18 unblemished, Bar officials 
said. In fact. he is in his second three- 
vear term as a member of the local 
Bar grievance committee in deep 
South Texas. 

Garcia's emgmatic career as one of 
South Texas most successful plain- 
tiff s lawvers 1s a tale of a string of 
victories punctuated by bitter con- 
  

SEE RAMON GARCIA, PAGE 13 

  

At-Large Judicial System On the Ropes 
“This will have the best 

effect on the administration 
of justice of any case. ever. 

  

BY ROBERT ELDER JR. 
AND GORDON HUNTER 
  

American Cunzens. et al. v. 
Mattox. et al.. No. MO-88-CA- 
154. Tnev nave. in fact. al- 

courts in Dalias. Bexar and 
Harms counties. where. a8 1n 
the district courts. minorities 

U.S. District Judge Lucius 
Bunton's Nov. 8 voting rights 
ruling gave plaintiffs their 
pi1ggest VICLory vet in the na- 
tionwide battie over at-large 
election of judges. 

said co-lead plaintiffs’ coun- 
sal William Garrett of Dal- 

JUDGE ORDERS FINAL REMEDY 
IN BROWNSVILLE CASE 

EE STORY. PAGE 10 

  

  

ready piotted their next 
move. 

Garrett said he will file a 
similar chalienge to the at- 
large election of county court- 
at-law juages within 60 days 

are vastiv underrepresented 

on the bench. 

Hailed bv the winners as 
the most important voting 
rights case in the state in 16 

  

  

z 
2 
3 
c 

2 
[a] 

  
  

  

  

  
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Bunton's stinging memo las’ Garrett. Thompson & — starting with Dallas years. Buntor 's ruling i8 the yg, DISTRICT JUDGE LUCIUS 

randum opinion aireadv has Chang. County. but possibiy in other proadest vet under a vear-oic BUNTON: Winners hail his 

cast the Texas judiciary into Plaintiffs’ lawvers weren't urban areas as well. standard appiving the VOURE  ryjing as the most 

turmoil — and the ripple ef- surprised by their victory in Other likelv targets. Gar. Rights Act to judicial elec-  jmportant voting rights 

fect 1s just beginning. League of United Latin  rett said, are state appeliate SEE AT-LARGE. PAGE 11 ruling in Texas in 16 years. 

—————== 

INSIDE 

| NEW YORK GRUMBLINGS TEST CASE FLIP-FLOP INSTILLING THE RULE OF LAW OTHER NEWS 

' Some former partners of Fulbright More than a vear after oral WITH A ‘REAL MORALITY’ ® Houston's Hirsch. Glover : 
Jemorex! & Bosvle Ne [ogy oe Sfeumerts z and with a realigning Reprinted verbatim is the Oct. 13 recruits corporate group ........ 8 |! 

rsa - election in the speech in Hvde Park. N.Y., by U.S ® Dallas winners of 

iziioervestjis. © J = faged fering the Supreme Court Justice Willian J. pro bono awards oer. 22 
iin Supreme Brennan Jr., who urges the legal 

NTE PPROVED ou profession to give meaning to law 
A RAE De A a 3 Fithiraws 1s Dy using it to attack social INADMISSIBLE 2 

rder agreeing ities. — Page 26 NAME INDEX 4 
behavior code for lawyers — to hear the inequicies ge EYAL ours 5 

reprinted here in full — sav the drug testin CLE CALENDAR 1 

lack of built-in penalties can be challenge that CHILES REVISITED So DRAs Be Sus CaN Se 2 

overcome if the voiuntary creed is plaintiff's Houston's 14th Court of Appeais IN THE NEWS 21 

Beea to pressure Ramo. counsel James withdraws its July 13 opinion in SRL Soe; Oral Ar 2 

itigators and 1s used as leverage D Chiles v. Chiles and repiaces it  Juoics w : 

.XHIB IT " B waging clients wno want their 8avs was the case ‘‘evervbody was with another with substantially tei Halil JUSHCS ......onnnnne 2 

| lawyers to use unnecessary watching’’ for an answer to state the same result. STREET TALK eoooooooooeoooooooe 28 

hardball tactics. — Pages 4. 5 privacy c — Page 9 — Weekiy Case Summaries, Page 10 CLASSIFIEDS 30 
  

  

 



  

  

CONTINUED FROM PAGE 1 
  

tions. 

Bunton wrote that his ruling 
should be no surprise — it was simply 
the most recent step in a legal evolu- 
tion that has been building since the 
1965 U.S. Voting Rights Act. 
While the act had as its broad goal 

an end to racial discrimination in 
voting, it was not until last year that 
the door swung wide open for chal- 
lenges to judicial elections. 
The decision in Chisom v. 

Edwards, 839 F.2d 1056 (5th Cir. 
1988), ended the notion that judicial 
elections are a special case — that 
they are exempt from the Voting 
Rights Act because judges are not 
“representatives” as defined under 
the act. 

Bunton’s ruling is the broadest 

application of the Chisom standard 
! to date, based on the numbers of 

judges involved. 
Texas Attorney General Jim Mat- 

tox urged Gov. Bill Clements to in- 
clude the issue on the agenda of the 

| 
| 
| 

| 
| 

| 
| 

scheduled Nov. 14 special session of | 
the Legislature, as did numerous 
other state officials and party lead- 
ers. 

“The current system has few de- 
fenders, for a variety of reasons,” 
Mattox wrote Clements Nov. 9. The 
AG said he would make a decision on 
an appeal after Clements decides 
whether to put the issue before legis- 
lators. 

Clements, in the hours after the 
ruling, maintained his opposition to 
including anything other than 
workers’ compensation reform in the 
agenda of the session. 

PARTY AFFILIATION CLAIM 
SLAPPED DOWN 

Bunton summarily slapped down 
! the key defense argument — that 
. party affiliation, not racially pol- 

arized voting, keeps minorities off 

i the bench. The state claimed that 
minorities could win judgeships if 
they only ran in the county's domi- 
nant party. 

But Bunton wrote, “Party affilia- 
. tion is simply irrelevant under the 

controlling law.” 
The U.S. Supreme Court in 

| Thornburg v. Gingiles, 478 U.S. 30 
. (1986). made it clear “that it is the 

differences between choices made by 
. blacks and whites alone and not the 
' reasons why they vote differently 

. that is the central inquiry... 

Bunton wrote. 
Although the party affiliation de- 

fense may ace in an appeal of 
. LULAC, Texas Supreme Court Chief 
i Justice Thomas Phillips, a defendant 

in the case, sees a stronger front-line 
appellate position for the state and 
the defendant-intervenors. 

Phillips said Nov. 9 the argument 
that Texas’ trial judges are in- 
dependent office-holders is a ‘“‘con- 
ceptually stronger” appellate posi- 

| tion. 
Under this argument, trial judges 

are sole, independent decision- 
makers outside the scope of any ‘“‘col- 
legial body” — like the governor, a 
sheriff or a district clerk — and 

: therefore not subject to a Voting 
Rights Act challenge. 

Bunton, in his conclusions of law, 
held that Chisom applies equally to 
state district elections as it does to 
appellate elections. 

And in a footnote, Bunton recog- 
| mized the solo nature of trial judges, 
{| but concluded there is no hint that 

     

    

System On the Ropes 
Chisom was limited to collegial judi- 
cial bodies. 

For Phillips, the footnote is a green 
light to the 5th U.S. Circuit Court of 
Appeals. “There is a central question 
[on the limits of a collegial body] that 
needs to be answered,” the chief jus- 
tice said. 

Bunton urged Gov. Clements to 

lenges, the winners were tentatively 
recommending interim solutions. 

Plaintiffs’ counsel Garrett said his 
clients favor using the lines drawn 
for House districts for judicial elec- 
tions in 1990 — which is before the 
new census data is compiled. 

An interim plan is needed for 1990 

NOVEMBER 14, Lote ® TEX 

At-Large Judicial 

adn VE EE 

only, Garrett said, because future 
elections will use the 1990 census 
data, which is expected to show 
dramatically higher numbers of 
blacks and Hi ics. 

“It’s unfair to [Hispanics and 
blacks} to draw up something now,” 
Garrett said Nov. 9. 

Garrett said the Legislature 
should draw up plans that include 
districts in which both Hispanics and 
blacks can win, even though the 
plaintiffs proceeded on behalf of only 
blacks or Hispanics in some counties. 

Garrett said using 1980 census 
data — the most recent available — 
prevented his side from drawing up 
Hispanic and black sub-districts in 
some counties. He said there will be 
no such obstacle with 1990 data, and 
warned that uniess the Legislature is 
fair to all minority groups, those 
groups will seek districts through 
more litigation. 

SENSE OF HISTORY 

The voting rights ruling also was 
the latest note of a recurring Texas 

SEE AT-LARGE, PAGE 12 
  

          
  

| 

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| PLAINTIFFS’ CO-COUNSEL WILLIAM 
| GARRETT: Will file a similar 
| challenge to the at-large election 

| of county court-at-law judges, 
| starting with Dallas County. 

  

THIS IS 
THE FIRST WEEK 

OF THE REST 
OF YOUR CAREER. 

Now's as good a time as any to do something 

about it. For more information call our Dallas 

office — serving the entire Southwestern United 

States—at (214) 939-3033 or write: 
1201 Elm Street, Dallas, Texas 75270. 

Because when it comes fo your career, next 

  

Wells 
LEGAL SEAR 

WE GUIDE LAX YERS THROUGH CHANGING TIMES 

week might be a week too late. 

International 
CH 

} 
© 2 70 Wells MAONNNPMSNI | rv TY i 3 | ! 

  

 



  

At- Large Ju rm 
System On the Ropes 

  

  

  

  

    

  

CONTIN FROM | member districts. 
VED PAGE 11 Bunton said the stste’'s long his 

theme: from prisons to school financ- | tory of discrimination ‘touched upon 
ing to single-member districts for | many aspects of the lives of minor- 

i 

  

legislators — and now to the judici- ities in the counties in guestion in- 
ary — the state moves only when itis | cluding their access to and par- 
pushed by the courts. | ticipation in the democratic system 

Bunton wrote with a keen sense of | governing this state snd their socio- 
history, noting the benefits brought | economic status.” 
to minorities by singie-member dis- | The judge cited a 1878 report to the 
tricts in races for the Legislature, | U.S. Commission on Civil Rights 
city councils and school boards. | that pointed to little progress by mi- 

In Bexar County, Bunton wrote, ' Dorities since 1968. 
Hispanics were elected to the Texas = “The administration of justice in 
House ‘‘immediately’”’ after the | Texas was overwheimingiy domi- 
landmark White v. Regester, 412 U.S. | nated by Anglo males ... and the 
775 (1973), which brought single- | overall pattern had changed very 
member districts to the state Legis- | little” in 10 years, the report said. 
lature. And. similarly, the number of | The sparse numbers of minority 
minorities increased once the San | judges debated during the trial in 
Antonio city council adopted single- | Bunton's court in September also 

* LAWYER ® NOVEMBER 13, = 
  

  

show that very little had shaken the 
Angio power structure in the next 11 
years leading up to LULAC. 

Defense-oriented experts in voting 
rights cases said the Texas defense of 
party over race would help chart the 
future of such challenges. 

‘Texas really is the first bite of the 
apple in which a partisan defense 
presented itself very vigorously,” 
said Louisiana State University po- 
litical science professor Ronald 
Weber, a defense expert in chal 
lenges to Louisiana's at-large judi- 
cial elections. 

If the party affiliation defense fails 
on appeal, Weber said. :. could open 
the door for more challenges outside 
the South, where party affiliation 
plays a larger role in peners! elec- 
tions 

Plaintiffs i in LULAC targeted nine 
counties, including the five most 
populous: Harris, Dallas, Bexar, 
Tarrant and Travis. The other coun- 
ties are Jefferson, Lubbock, Ector 
and Midland. There were 172 district 
judges in the nine counties as of 
February. Only seven are black and 
nine are Hispanic. 

          

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Bunton found, without exception, 
there is racial discrimination in the 
election of state judges in those 
counties. 

“Some fixing has to be done, be- 
cause the current system is broken,” 
Bunton wrote in his ruling, 
cranked out in the six weeks foliow- 
ing the Sept. 18-22 trial. 

Bunton said the Texas Constitu- 
tion will peed to be amended to fix 
the sysLem. And he wrote that legis- 
lators ‘‘should seriously consider 
nonpartisan elections for district 
judges.’ 

Although he revealed some of his 
thoughts on the cwrent svsiem of 
elecung judges in the state, Bunton 
left it in the lap of legislators to 
remedy the Voting Rights Act viola- 
tions. At least for now. 

If the Legislature fails to make 
enougn progress on & corrective plan 
by Jan. 3, the judge said he would 
then consider a restraining order or 
motion to enjoin future elections 
pending further court action on a 
remedy. 

Even before Bunton’s decision, 
there was growing debate about how 
the state should be subdivided to 
remedy racial discrimination in 
judicial elections. 

The subdivision proposals covered 
most of the existing boundaries, from 
justice of the peace lines to larger ju- 

  

“Texas really is the 
first bite of the apple 
in which a partisan 
defense presented 

itself very 
vigorously.” 

— DEFENSE DXPIRY ROMALD WEBER, 
LOURBLANA STATE MIVERSITY 

  

risdictions covered by county com- 
missioners and state legislators. 

One group, the Texas Policy Re- 

search Forum, tried to discourage 
any proposed remedy that includes 
appointments to the state bench. The 
forum. founded in June and headed 
by former Texas AFL-CIO legislative 
director Willie Chapman, noted that 
64 percent of the state's district court 
judges as of August 1988 first as- 
sumed office by appointment. 

Since the appointment mechanism 
has not mitigated discrimination in 
judicial elections, the forum said it 
was unlikely the U.S. Justice De- 
partment would give preciearance to 
any Texas plan that inciuded an ap- 
pointment system. & 

  

  

  

what's happening 
inside the US. 
supreme Court. 

| Read 

COURTSIDE 
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information you can use 

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- 

DF E3 Houston Chronicle Wednesday. Dec. 20, 1989 

  

Judges 
Cdntinued from T 1A. 

refurned to office through periodic, 
uigontested elections 
cir we are offering a plan 

that is the least radical plan from 
tht which we are currently using,” 
Mpttox said. “It's still a partisan 
eléction of judges. Judges still have 
cuntywide jurisdiction We are 
pifking out districts that are de- 
signed by the elected officials in the 
styte. 

Should the Legislature decide to 
gq to a Missouri-type plan, should 
they decide to adopt a more radical 
ndn-partisan plan, should they adopt 
the governor's radical plans — that's 
a flecision for them to make.” 

“lements called a news conference 
toiattack Mattox's partial resolution 
of; the lawsuit. 

The governor argued that the LU- 
LAC-Mattox plan “would effectively 
eliminate the right of the people to 
vdte for the individuals (judges) who 
will preside over critical cases and 
legal questions.” 

Be en also said defendants’ 
rights “are protected by the checks 
and balances provided by the peo- 
nle's right to vote for every single 
Jie that may preside in their 
case.” 

In late November, Clements him- 
self endorsed eliminating direct 
election of state district judges as a 
way out of the LULAC lawsuit. 
Asked how he could support the 

elimination of contested judicial 
elections and still complain that the 
LULAC-Mattox plan reduced voter 
input, Clements said the Missouri 
plan he supports has a means by 

  

County. 

opposing patty in November 

    
which voters can vote out of office a 
judge who is appointed by the gover- 
nor. The replacement for that judge 
also would be appointed. 

While Clements, Lt. Gov. Bill 
Hobby and House Speaker Gib Lewis 
like the idea of appointed district 
judges, the idea has little support 
among slate representatives and 
senators. 

Mattox blasted Clements 
“It is truly amazing to me that a 

fellow would use such language . . . 
when that fellow is advocating the 

How the plan would work 

# Filing: The 36 district judges up for election in Harris County next year 
will have until Jan 12 to tile for the March primary election, instead of 
Jan 2 The Jan 12 deadline could be pushed back depending on when 
U.S Distinct Judge Lucius Bunton issues a final order. 

@ Districts: The judges. and any challengers. will decide in which state 
representative district they want to campaign. There are 26. Ten districts, 
most of them minority districts, will have two judges each. A candidate 
need not hve in the district in which he or she runs, but must live in Harris 

@ Elections: March party pumary winners will face opponents from the 

® Responsibilities: Incumbents who win re-election have first claim on 
their old courtrooms and any specialized assignments that go with them 
Newcomers will be assigned tasks such as criminal, civil, family or 
juvenile court by the presiding judge. 

8 Terms: All terms will be two years instead of four. 

WM Caseloads: Cases will ba assigned on a rotating basis regardless of 
where the alleged crune or cvil wiong took place 

MW Recusals: A litigant who fears that a judge will favor a party to a 
lawsuit because he or she is a constitutent of the judge can have the 
case assigned to a dilterent judge. Only one recusal is allowed per case.     

Chronicle 

appointment of judges, not elections 
That fellow is the same one putting 
forth a plan that would take away 
the voters’ choice and leave it to his 
country club cronies,” Mattox said in 
a release. 

After the news conference, Clem- 
ents’ press office put out a statement 
to clarily his position. In it, Clements 
said he would leave it to Texas 
voters to change the constitution 
while Mattox would not. 

Under the LULAC-Mattox plan, 

state district judges still would hear 
cases from throughout the county. 

Mattox said he was able to include 
a clause that allows a lawyer to 
protect his client against a judge 
who might favor a constituent over 
someone who hives outside his dis- 
trict. 

“The cases would be assigned on a 
rotating basis. Every litigant would 
have the opportunity to strike or 
recuse a judge for no cause," Mattox 
said. 

Mattox said Bunton may not ac- 
cept the proposal or that an interve- 
nor could have Bunton's order 
stayed But he said state district 
judges who face re-election should 
start campaigning 

“I'd figure out which district 1 
could win in, and I'd get to running,” 
he said. 

The resolution was praised by LU- 
LAC leaders and representatives of 
the National Association for the Ad- 
vancement of Colored People Legal 
Defense and Education Fund. 
“We view this as a victory for the 

people.” said Harris County District 
Judge WH. Berry. “I want to con- 
gratulate Attorney General Mattox 
for his display of uncommon courage 
in attacking this very sensitive prob- 
len” 
Gabrielle McDonald. a former 

judge and attorney who represents 
the NAACP legal defense fund, said: 
“This is not a case about getting 
more black judges. It's a case of 
black voters being able to express 
their right, and they clearly - based 
on the decision of Judge Bunton 
had not been able to do so.” 

Asked whether she thought white 
judges in Harris County would be 
defeated, McDonald said good white 
judges could win in a black district. 

Harris County district judges reel at news 
  

By SUSAN WARREN 
Houston Chronicle   

Harris County state district judges 
reeled in anguish and confusion 
Tuesday over Lhe news Attorney 
General Jim Matlox agreed they 
should be elected next year accord- 
ing to narrowly drawn districts. 

The judges have been elected by a 
countywide vote. 

“This is going to create a lot of 
chaos,” said civil court Judge Wyatt 
Heard, one of 36 district judges up 
for election in the county in 1990. 
“We'll lose a lot of good judges.” 

“Naturally we're all shocked by 
it,” said AD Azios, who presides 
over the 232nd Criminal Court. 

Mattox signed off on Lhe election 
plan with the League of United Latin 
American Citizens, which had sued 
the state, alleging the countywide 
system diluted minority voling 
strength. U.S. District Judge Lucius 
Bunton of Midland agreed, and gave 

the parties in the lawsuit until Fri- 
day to agree to a temporary plan for 
electing judges. 

The plan agreed to by Mattox and 
LULAC applies only to the 1990 
elections and would be replaced by a 
permanent election system to be 
hashed out by the 1991 Legislature. 

If approved by Bunton on Friday, 
the interim plan will require Harris 
County judges to he elected by con- 
stituents from the 26 state represen- 
tative districts. 

In essence, the plan would create a 
free-for-all in which judicial hope- 
fuls pick out a district in which to run 
and campaign within its boundaries 
for one of the 36 benches open in 
1990. Since the judges would still 
have countywide jurisdiction, they 
would not have to live in the district 
in which they run. 

Previously, judges have run coun- 
tywide to be elected to specific 
criminal, civil, family or juvenile 
court seats. Under the proposed sys- 
tem, voters would not know which 

  

specialization they are electing a 
judge to preside over. 

Since there are only 26 state repre- 
sentative districts, and 36 judges to 
be elected, voters in 10 districts 
would elect two judges. Those 10 
districts, selected for their heavy 
minority constituencies, are 131, 132, 
146, 138, 139. 141, 142, 143, 147, 148 

Six of those districts are currently 
represented by a black and two by a 
Hispanic. Nine of the representa- 
tives are Democrats. 

Thirty-one of the 36 judges up for 
election are white. There are 25 
Democrats and 11 Republicans. 

While several judges agreed the 
new election system would probably 
succeed in its intention to bring more 
minorities to the state district 
benches, they were .anguished by 
other implications of the plan. 

194fes contacted Tues) worried 
that district elections would further 
politicize judicial elections, making 
judges answerable to special Inter- 
ests within their new districts. 

“It will be very unfortunate to 
have this perception of local justice 

in our county,” said Judge Sharolyn 
Wood, who intervened as a defendant 
in the LULAC lawsmit and who as 
sharply critical of the proposal 

The election plan would allow law- 
rv to ack that a indee be recned 

from a case if there is a fear the 
judge could be biased 

And Judge Miron Love. the admin- 
istrative judge presiding over all 59 
state district judges in the county, 
worried because he will have fo 
decide where to put the 36 elected 
under the new system 

Winning incumbents will retain 
their court seat, but newcomers will 
be placed in an appropriate trial 
division. Love expressed concern he 
will have to place judges in a special- 
ization where they have no experi- 
ence or don’t want to be 

All judges interviewed agreed the 

public would be shortchanged by the 
new system. 

“I'm a voter in Harris County, and 
I just lost the right to elect 35 district 
judges in this cgunty,” Wood said. 
“Now | have the right to elect one, 
while some get to elect two. 

“And I'm not allowed to know what 
court the judge I pick will serve in, 
or what specialty he will be assigned 
to" 

There were also personal consider- 
ations for judges used to campaign- 
ing in all of Harms County, and who 
now must pick ane area where they 
hope to be elected The deadline tor 

flim as Jan 12 

Azios was already lling las op- 
frist 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  
  

  

  

  

  

  

    

  

  

  

  

  

    

  

  

    
“I've got to find out where Ive 

been the strongest when | ran in the 

past,” he said 
Many judges anticipate races be- 

tween (wo or more incumbents, a 

scenario the judges find distasteful. 
Since a significant turnover seems 

inevitable, one of the greatest losses 
to the judicial system will be mea- 
sured in experience, judges said. 

Several were concerned the politi- 
cal instability will cease to altract 
the better lawyers no longer willing 
to sacrifice their prosperous careers 
for an uncertain future in public 
service 

Fiven county political leaders hid 

nothing good to say about the plan 

County Republican Chairwoman 
he niet id be’ nl t .4 y IN] 1 ' 

Harris County state district judicial seats 
up for election in 1990 

Judge District Type Party When took office 

Reagan Cartwright ~~ 55 Cwl Dem 1/69 
Goralne Xannant i 113th Civil Dem 1/83 

Felix Salazar 157th Cwvil Dem 1/83 

Patucia R Lykos 180th Cninunal Rep 1/81 

Donald K Shipley ro 182nd Cuminal ~~ Dem 1/83 

JayW Bune 18% Comal Dem ver 
Bob Burdette 184th Criminal Dem 3/86 ag 

Carl Walker Jr 185th Cnnunal ~~ Dem 1/87 

Richard W Millard 189th Civil Rep 12/85 

Wyatt W Heard 190th Civil Dem 10/69 

Thomas H Routt 208th Canunal Dem 6/77 

Michael | McSpadden 209th Criminal Rep 1/82 

Ted Poe i 228th Criminal Rep 9/81 

Joe Kegans 230th Cnownal ~~ Dem 4/77 

AD Azos 232nd Conmwnal ~~ Dem 1/83 

Scott Brister pod 234th Cwil Rep 11/89 

Henry G Schuble Il 245th Family Dem 977 

Joh W Peavy Jr 246th Family Dem nr. 
Charles Dean Huckabee 247th I amily Dem 11/83 

Woody R Ocnsen aE 248th Criminal Dem 1/83 

Norman i Lee 257m Family Dem Ey. 
Dow) Shaver x ~ 262nd Criminal Dem 9/81 

Charks I Hoan. So 263d Crinunal Dem 9/78 

David West 269th Civil Rep 11/84 J 

An Cochan a 270th Cwil Dem 1/83 

Tony Lindsay 280m Cw Rep 6/89 

oa M Moore 281st Cwil Rep 6/81 

Dan Downey 295th Civil Rep 4/88 

Bob Robertson 308th Family Dem 1/83 

John D Montgomery 309th Fanuly Rep 1/87 

Allen J Daggett 310th Fanuly Dem 9/77 

Bon 31 family Dem 917 

Hobe! S Webb i 3120 bawdy Dem 1278 
Rabel L Lowry 313 Juvemis Dem 10/66 
Robern 8 Bam tah Juvenile Rep 7/79 

Eve G Andel MEN. eemie Bem TBE 
  

posed election system “a lousy plan,” 
likened it to “taking the judges and 
throwing them all up in the air like 
confetti and seeing where they land.” 

Johnson expressed her opinion de- 
spite her belief that Republicans 
would gain judicial seats under the 
lan. There currently are 11 Repub- 

ow judges, and 13 of the 26 repre- 
"sentative districts are held by Re- 
publicans. 

Jack Carter, county Democratic 

chairman, was resigned to making 
the best of the situation 

“The court says there has to be a 
way to permit the minorities in our 
communities to have a greater role 

in electing judges” Carter said 
“This is one wav. clearly, to aceam 

  
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JAILHOUSE BLUES: SWA 

TheHoustonPos! 
    

  

T team arrests fugitive to face the music in Louisiana — A-24 
      

  

Mary Lou Luzno, 9, left, and Mary Bel, 9, 

open presents Friday at a Christmas 
party for 950 Inner-city children at the 

  

Gregory Lincoln Education Center, 1101 

Taft. The party was sponsored by the 
Downtown YMCA. 

  

  

  

»» SATURDAY, December, 16, 196¢ 

  

on table, Mattox say* 
  

Attorney general’s move 

irks 2 justices, Clements 
  

By MIKE HAILEY 
POST AUSTIN BUREAU 

AUSTIN — Attorney General Jim Mattox sparked a 
political firestorm Friday by confirming his office is 
trying to negotiate an interim judicial election plan for 
1990 with plaintiffs in the lawsuit who are challenging 
the way district judges are selected in nine urban coumn- 
ties. 

In an attempt lo keep U.S. District Judge Lucious 
Bunton from imposing his own plan on the state, Mat- 
tox said negotiations with the League of United Latin 
American Citizens and others are focusing on a propos- 
al to have Judges in urban counties elected next year 
from either Texas House districts or county commis- 

sioner precincts. 

Maltox's involvement drew sharp criticism from two 
state Supreme Court justices and Gov. Bill Clements’ 
office, which argued the attorney general could dari 
age the state's chances of winning the judicial selection 
suit on appeal. 

But the Democratic attorney general said he decided 
to intervene when the governor refused to open the 
recent special session agenda to judicial selection, even 
though a court-ordered plan is expected to be issued in 
the next several weeks. 

“I just prefer to not have another federal judge have 

his free will without the stale participating,” Mattox 
said. 

Bunton, a federal judge from Midland, has ruled that 
countywide elections of district judges in the large 

counties. including Harris County, violates the Voling 

  

Micheal Boddy/ I'he Houston Post 

Criminal Court-at-Law Judge Alfred G. 
f.eal and Carolyn Garcla, candidate for 

157th District Court, were briefed on 
pending election changes. Please see 

story/page A-24. 

Rights Act by diluting the ability ol minotilies to win 
district court seats. 

The Republican governor's chief of stall, Mike Too- 
mey, said Clements and most state legislators — even 
those who favor drastic changes in the judicial selection 
process — want Bunlon’s ruling appealed all the Way 
to the United States Supreme Court, il necessary. The 
state is preparing an appeal to the 5th Circuit Court of 

Please sre JUDGES, A-24 

  

  

        
   



Houston Chronicle. 

  

  
  

fo 

Section A, Page 17 

= 

Saturday, Dec..23, 1989 
a. 

me ries ois i 

- = 

    

    

  

  

  BERR 
;".=. Deaths, 22 
as «Weather, 2% 

    

Judge bars Mattox from role in lawsuit 
  
By JULIE MASON 

Houston Chronicle 
  

A judge on Friday granted an 
order sought by two Harris County 
state district judges preventing 
Texas Attorney General Jim Mattox 

from representing them in a federal 
lawsuit over judicial elections. 

State District Judge Mark David- 

son granted the temporary restrain- 
ing order sought by State District 

. Judges Ted Poe and Charles Hearn, 
- who nbjected to Mattox’s handling of 

a Midland federal lawsuit brought by 

the League of United Latin Ameri- 

can Citizers. : 

In the federal case, US. District 

Judge Lucious Bunton in November 

! found that the current at-large sys- 

: tem of electing state district judges 

in Texzs illegally dilutes the voting 

strength of munorities and gave the 

parties until Friday to propose solu- 
tions. : 

A proposed settlement reached by” 
. Mattox and LULAC calls for electing” 

judges in 1990 by legislative bound- 

aries. Most state district judges in. 

* Harris County, as well as Gov. Bill 
- Clements, strongly 
posal. : 

Bunton. who wasn't in his 
Friday, will rule on the proposal 

3 

af*2r Christmas, a clerk said =. +i. 

Scan Schneider. attorney for the 

* two judges. argued in district court - 

Friday s1at Mattox has no authority - 

to represent the iudges in Midland - 
henar:se “hey never ask=d him tz, and 
that Ma:zox cannot sign off on:the- 

LULAC sertlement without | their 
—nm sigma 4 
pot pi S330. OR TIL 

Assistant State Attorney General 

Rich Tomlinson sail Matiox never 

purpui-ed to represent the judges. in 

ths federal case. and agreed to the 

serziement on begaif «. le state as. 

oppose the pro- 
; Hdae IPP Th 

He i ei aad Shoe 

  

By CLAY ROBISON 
Houston Chronicle Austin Bureau 
  

AUSTIN — In still another 
challenge to Texas’ judicial struc- 
ture, the Mexican American Le- 
gai Defense and Educational 
Fund Friday filed a lawsuit in 
Brownsville federal court against 
the statewide at-large system 
used :0 elect judges to the Texas 
Court of Criminal Appeals. 
MALDETF charges the present 

system “denies and abridges” the 
nght cf Hispanics to participate 
in the political process in viola- 

_tion of the Voting Rights Act and 
.the U.S. Constitution. ¥ + 

~   ~ 

-* “In the past the courts have ° 

- | MALDETF suit targets 
criminal appeals court 

spoken forcefully against similar 
discriminatory election systems 

at the state district court and 
appellate court levels,” MAL- 

DEF attorney Judith A. Sanders- 
Castro said. = 

“This lawsuit, 2 natural pro- 
gression of earlier lawsuits, will 

provide Mexican-American vot- 

ers the opportunity to participate 
in electing judges to one of the 
highest courts in the state.” 

U.S. District Judge Lucius Bun-- 
ton of Midland recently ruled that 
the countywide at-large election 

of s:ate district judges in Texas’ 

nine largest counties illegally di- 
lutes the voting strength of-mi- . 

> 5 vl, 44 

See MALDEF on Page 24A." 
-   

  

the state’s attorney. |, an- 
“This temporary restraining 

is not going to affect the (attorney) 
general's conduct in the federal case 
at ail,” Tomiinson said. = ziir u.. 

Renea Hicks, also representing 
Macrox at the hearing, noted that, 
ironicail~ Schaeider has no‘author- 
ity to represent the judges in their 
citcial capacity as-elected officials. 

“Onlv the attorney general of the 
stae >f Texas has thai authority,” 
Hicks said. mage 

F-= noted after the hearing the 
acpurent irony oi in: attorney gen- 

er 

DINO 

eral representing judges in, their 
official capacity but not as.unnamed. 
defendants in the federal lawsuit. - .. 

“The bottom line is the attorney 
general does not represent me.” Poe . ) 

of Tw who gia) Mattox-LULAC plan replacing 
3 A 2 f: 

Davidson set a Dec. 29 hearing on 
an injunction anc ordered Mattox to 
appear. The restraining order will 
nave -o effect on the settlement 
submitted to Bunton on Friday.’ 

Fridav’s court action came: after 
the two judges filed a lawsuit Thurs- 

day seeking to prevent Mattox from 
surporting to represent their inter- 

- . -. ciren — 

ests in negotiations with LULAC. 

“1 don’t think any court has the 
authority to enjoin someone from 
doing something they have never 

purported to do,” Hicks said. 

The judges allege in their lawsuit 

that Mattox has violated the code of 

professional responsibility by de- 

fending the federal suit to which heis 
also a named defendant. 

They claim he has failed to repre-' 

sent his clients’ best interests in the 

suit and signed off on a settlement 

without their consent. Le 

Arguments in Friday's hearing did 
not address these points raised in the 

lawsuit. - wits 

By agreeing to elect judges along 

legislative boundaries, Mattox. has 

usurped the Legislature and the 

Texas Constitution by creating a 

new state policy, the judges allege. 

The judges conclude in their action’ 
~ that, by failing to defend the consti 

tution. Mattox has violated his oath 

of office. Beets 
y fv 

The two judges’ unusual- action 

was supported by many of the coun- 

> ty’s state district judges; most of 

whom have been outspoken critics of 

Mattox’s handling of the LULAC 
CASE. rv vines AN DYE 

is ge CLOW VT 

If Bunton approves the contraver- 

the at-large system of electing 

judges, all 36 Harris County:state 

district judges facing re-election 

have agreed to a bipartisan meeting 

to divide up the county. . --Giocs.i. 
ir 2 a % - = gE 

Chronicle Austin bureau reporter 

Clay Robison also contributed to 

this story. 

  

EXHIBIT 

or 

"BY 

—  



    

SHAROLYN WooOD 
JUDGE, 127TH DisTrIiCT COURT 

HARRIS COUNTY COURTHOUSE 

HOUSTON, TEXAS 77002 

December 29, 1989 

Mr. Jim Mattox 
Attorney General of Texas 
P. OO. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

Dear Sir: 

Throughout this case from the date I first attempted to 
intervene until today, you and your office have represented that 
you and only you can represent me in my official capacity. While 
it seems apparent to me that you have never taken any interest 
whatsoever in representing me or my interest, either in an 
official or individual capacity, to the extent that you have 
demanded to be my lawyer I hereby call upon you to oppose 
vigorously the Proposed Interim Plan which you negotiated 
(without my advice or input) with the plaintiffs in this case and 
which you signed in your capacity as Attorney General of Texas 
(despite your oath of office to uphold the Constitution and Laws 

of this State). 

1f vou are not willing to oppose the Proposed Interim Plan 
or if you recognize a conflict of interest in doing so, please 
immediately notify me of your withdrawal as attorney for me in my 
official capacity and authorize me to employ counsel to represent 
my interests in both my official and individual capacities. 

In the meantime, I instruct you to take no action whatsoever 

inconsistent with my interest as explained in pleadings filed in 

my behalf by attorneys employed to represent me in my individual 

capacity. 

Yours very truly, 

Ee 
Sharolyn Wood, Judge 
127¢h District Court 

Harris County, Texas 

EXHIBIT "OC"