Foreman v. Dallas County Texas

Revised November 1, 1999

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-10864

B. C. FOREMAN; IDA CLARK; OTIS TARVER; DOMINIC
DE LA CRUZ; LOUIS DAVIS; MANDY PESINA,

Plaintiffs-Appellees,

VERSUS

DALLAS COUNTY, TEXAS; COMMISSIONERS COURT OF DALLAS
COUNTY, TEXAS; LEE F. JACKSON, Dallas County Judge;
JIM JACKSON; JOHN WILEY PRICE; MIKE CANTRELL; KENNETH
A. MAYFIELD, Dallas County Commissioners; BRUCE SHERBET,
Elections Administrator of Dallas County, Texas,

Defendants-Appellants.

Appeal from the United States District Court
For the Northern District of Texas

October 14, 1999

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

The plaintiffs-appellees, B. C. Foreman, Ida Clark, Otis

Tarver, Dominic De La Cruz, Louis Davis, and Mandy Persina

(“plaintiffs”), served as precinct election judges in Dallas

County, Texas. The plaintiffs subsequently lost those positions
when the defendants-appellants, Dallas County, the Commissioners

Court of Dallas County, and other (“defendants”), adopted a new

method of appointing precinct election judges. The plaintiffs

subsequently sued the defendants under § 5 of the Voting Rights Act

of 1965 (“VRA”), 42 U.S.C. § 1973 et seq., alleging that the

defendants had not precleared the appointment method for precinct

judges with the United States Department of Justice as required by

statute, 42 U.S.C. § 1973c. After lengthy and protracted

litigation, which included an appeal to the United States Supreme

Court, Foreman v. Dallas County, Tex., 521 U.S. 979 (1997) (per

curiam), the suit was dismissed by a three-judge district court as

moot when the Texas legislature eventually enacted a new and

different appointment method. In this appeal we are asked to

decide whether the district court erred in granting the plaintiffs

attorney’s fees as prevailing parties under 42 U.S.C. § 1973l(e).

We reverse the district court’s award of attorney’s fees and render

judgment that the plaintiff’s take no attorney’s fees.

I.

In Texas presiding election judges are assigned to local

precincts and are responsible for managing the elections which

occur there. See Tex. Elec. Code § 32.071. An election judge’s

responsibilities include administering oaths at polling places,

preserving order and preventing breaches of the peace, and

2
enforcing the provisions of the Texas Election Code. See Tex.

Elec. Code §§ 32.072-.075. The alternate presiding judge serves as

presiding judge for an election if the presiding judge is unable to

serve. Tex. Elec. Code § 32.001(b); Foreman v. Dallas County,

Tex., 990 F. Supp. 505 (N.D. Tex. 1998) (outlining various

responsibilities of election judges).

In 1996, before this suit was filed, the Texas Election Code

required the Dallas County Commissioners Court to appoint on an

annual basis presiding and alternate election judges for each

precinct. Tex. Elec. Code. § 32.002(a) (repealed 1997). Although

the Code required the Commissioners Court to “consider” the

recommendations of the County Elections Administrator before making

an appointment, the statute vested the Commissioners Court with

the discretion to appoint any qualified person. Tex. Elec. Code

§ 32.002(d) (repealed 1997).

Between November 1, 1972, when Texas became a covered

jurisdiction under the Voting Rights Act, and October 1996, when

the Commissioners Court adopted the appointment plan at issue, the

Commissioners Court adopted various methods for selecting election

judges, without first obtaining preclearance from the Department of

Justice. See Foreman, 990 F. Supp. at 507 (detailing the

chronology of changes). For example, between 1982 and 1995, the

Commissioners Court appointed election judges pursuant to a

presidential election formula. This formula required the presiding

3
judge to be a member of the party whose presidential candidate

carried the precinct in the most recent presidential election. The

alternate judge was appointed from the other party. In 1995,

however, the Commissioners Court adopted a senatorial method for

appointing election judges. This method was based on which party

carried a precinct in the most recent senate race. Dallas County,

Texas Order No. 95-1313 (1995) (repealed 1996) (hereinafter “1995

Order”).

In September 1996, the Commissioners Court changed its

appointment method again. This time, in all precincts where the

Republican candidate for Senate received the most votes in the 1994

election, the person submitted or approved by the Republican party

would be named the presiding election judge.1 A majority of the

Commissioners Court could vote, however, not to appoint the

proposed judge. In all other precincts, the commissioner who

represented the precinct determined whether the person submitted or

approved by the Republican or Democratic party would be appointed

presiding election judge. The person submitted or approved by the

party whose candidate was not chosen was named the alternate

election judge, subject to the veto of a majority of the

Commissioners Court. Dallas County, Texas Order No. 96-1630 (1996)

(repealed 1996) (hereinafter “1996 Order”). Because this new

1
The person submitted or approved by the Democratic party
would be named alternate presiding election judge.

4
methodology gave the individual commissioners influence over the

appointment of election judges in precincts where the Republican

Senate candidate did not win a majority, the practical effect was

more Republican and fewer Democratic presiding judges.

On October 3, 1996, the plaintiffs -- black and Hispanic

voters who had not been reappointed as election judges -- filed

suit alleging that the 1996 Order, and its appointment procedure,

had not received preclearance as required by § 5 of the Voting

Rights Act. The plaintiffs also filed a motion for a temporary

restraining order to enjoin the defendants from implementing the

1996 Order.2 The district court granted the motion and issued a

temporary restraining order, and convened a three-judge court as

required by the VRA to consider the merits.

A few days later the Commissioners Court rescinded the 1996

Order and, claiming authority from § 32.002 of the Election Code,

proceeded to appoint election judges in a purely discretionary

manner. The Commissioners Court, which consisted of four

Republicans and one Democrat, then appointed only Republicans as

presiding election judges, and Democrats as alternate presiding

election judges. In addition to clearing the precincts of all

presiding election judges from the Democratic party, at least 54

black and 33 Hispanic election judges were not reappointed. Dallas

County, Texas Order No. 96-1950 (1996) (repealed 1997) (“October

2
The plaintiffs also moved to enjoin the defendants from
implementing the previous 1995 Order.

5
Order”).

The plaintiffs subsequently amended their complaint and sought

declaratory and injunctive relief enjoining the Commissioners Court

from implementing the October Order for failure to receive

preclearance under § 5 of the VRA. The three-judge court denied

the request for injunctive relief and allowed the 1996 elections to

take place under the supervision of the election judges that had

been appointed under the October Order. After the election was

over, the three-judge court dismissed the plaintiffs’ suit, holding

that § 5 of the VRA did not apply to the Commissioner Court’s

procedures for appointing precinct election judges. Because the

entire Texas Election Code had been precleared in 1985, the three-

judge court reasoned that the Commissioners Court was merely

exercising its discretion pursuant to the precleared Election Code.

On appeal, the Supreme Court rejected the holding of the

three-judge court and found that the appointment procedures were

properly covered by § 5 of the VRA. Foreman v. Dallas County,

Tex., 117 S. Ct. 2357, 2358 (1997) (per curiam). The Court noted,

however, that the determinative question was whether the county

sought to administer a procedure that was different from the one in

place on November 1, 1972, the date the VRA went into effect in

Texas. Id. at 2358-59. Because the record was silent on the

procedures for appointing election judges in 1972, the Supreme

Court on June 27, 1997 vacated the three-judge court’s ruling and

6
remanded the case for further findings. Id. at 2359.

However, prior to the Supreme Court’s decision the Texas

legislature amended § 32.002 of the Texas Election Code and adopted

a gubernatorial method for selecting election judges. See Tex.

Elec. Code § 32.002 (1999). The Justice Department precleared the

revised statute on September 2, 1997, and on October 7, 1997, the

Commissioners Court appointed new election judges in accordance

with the new method.3 On January 8, 1998, the three-judge court

dismissed the plaintiffs’ § 5 preclearance claim as moot, leaving

open the question of attorney’s fees. On the plaintiffs’ motion,

a single district judge found that the plaintiffs were prevailing

parties within the meaning of 42 U.S.C. § 1973l(e), and awarded the

plaintiffs roughly $183,263 in attorney’s fees. The defendants

timely appealed.

II.

We review a district court’s award of attorney’s fees for

abuse of discretion and its supporting factual findings for clear

error. Wilson v. Mayor of St. Francisville, 135 F.3d 996, 998 (5th

Cir. 1998). We review the conclusions of law underlying the award

of attorney’s fees de novo. Marre v. United States, 117 F.3d 297,

301 (5th Cir. 1997) (citing Texas Food Indus. Ass’n v. United

States Dept. of Agric., 81 F.3d 578, 580 (5th Cir.1996)).

3
All six plaintiffs were reappointed as presiding judges.

7
 III.

On appeal the defendants assail the district court’s finding

that the plaintiffs qualify as prevailing parties under 42 U.S.C.

§ 1973l(e).4 As reflected in its memorandum order, the district

court based that determination on two separate grounds. The

district court first found that the plaintiffs were prevailing

parties because their suit was a “significant catalyst” behind the

Texas legislature’s decision to amend § 32.002 of the Election Code

and enact a gubernatorial appointment procedure. The court also

found that the plaintiffs were prevailing parties because the

plaintiffs were successful in obtaining a temporary restraining

order. We begin our review of those two findings with a brief look

at our guiding principles.

Only “prevailing parties” may recover attorney’s fees under 42

U.S.C. §§ 1973l(e).5 What it means to “prevail” was recently

4
Section 1973l(e) provides in relevant part:

In any action or proceeding to enforce the
voting guarantees of the fourteenth or
fifteenth amendment, the court, in its
discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney’s fee as part of the costs.

42 U.S.C. § 1973l(e).
5
Because the phrase “prevailing party” connotes the same
general meaning under § 1973l(e) and 42 U.S.C. § 1988, cases under
both Acts apply the same principles when determining plaintiffs'
entitlement to attorney’s fees. See Posada v. Lamb County, 716
F.2d 1066, 1071 (5th Cir. 1983).

8
clarified by the Supreme Court in Farrar v. Hobby, 506 U.S. 103,

109 (1992). There, the Supreme Court explained that a plaintiff

prevails “when actual relief on the merits of his claim materially

alters the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the

plaintiff.” Id. at 111-12; TK’s Video, Inc. v. Denton County,

Texas, 24 F.3d 705, 711 (5th Cir. 1994). The Court further

observed that “[n]o material alteration of the legal relationship

between the parties occurs until the plaintiff becomes entitled to

enforce a judgment, consent decree, or settlement against the

defendant.” Farrar, 506 U.S. at 113. Thus, “the plaintiff must be

able to point to a resolution of the dispute which changes the

legal relationship between itself and the defendant.” Id. at 111.

With those standards in mind, we turn to the substantive merits of

this appeal.

A.

The first matter we address is the district court’s finding

that the plaintiffs are prevailing parties because their suit was

a significant “catalyst” behind the Texas legislature’s decision to

amend the appointment procedures. On appeal the defendants argue

that the district court’s finding is incorrect because prevailing

party status can no longer be based on a catalyst theory after the

Supreme Court’s decision in Farrar. The defendants further contend

9
that even if the catalyst theory remains good law, it cannot be

applied the acts of third parties and, in particular, to the acts

of a general legislature.

By bringing this challenge to the district court’s use of the

catalyst theory, the defendants have ventured into an unsettled

area of the law. Before the Supreme Court’s decision in Farrar,

the catalyst theory was routinely applied in this and other

circuits. See Heath v. Brown, 858 F.2d 1092, 1094 (5th Cir. 1988);

Garcia v. Guerra, 744 F.2d 1159, 1162 (5th Cir. 1984); Williams v.

Leatherbury, 672 F.2d 549, 550-51 (5th Cir. 1982). It allowed a

plaintiff to achieve prevailing party status -- even in the absence

of a formal victory in court -- if the plaintiff’s suit was a

“substantial factor or a significant catalyst” in obtaining the

relief sought. See Leatherbury, 672 F.2d at 550-51 (explaining

catalyst theory).

After Farrar, however, the continuing validity of the catalyst

theory is in serious doubt. In Farrar the Supreme Court seemed to

narrow the circumstances in which a party may claim prevailing

party status. The Court noted that “to qualify as a prevailing

party . . . [t]he plaintiff must obtain an enforceable judgment

. . . or comparable relief through a consent decree or settlement.”

Id. at 111 (emphasis added). The Court declared that “[o]nly under

these circumstances can civil rights litigation effect ‘the

material alteration of the legal relationship of the parties’ and

10
thereby transform the plaintiff into a prevailing party.” Id.

(emphasis added). The Court added that “[n]o material alteration

of the legal relationship between the parties occurs until the

plaintiff becomes entitled to enforce a judgment, consent decree,

or settlement against the defendant.” Id. at 113 (emphasis added).

The language in Farrar strongly suggests that a plaintiff must

obtain some merits-based relief which alters its legal standing

with the defendant before it may claim prevailing party status.

That, however, is seemingly at odds with the catalyst theory which

allows a plaintiff to claim prevailing party status even if there

is no material change in the legal relationship between the

parties. See Leatherbury, 672 F.2d at 550 (“Success by judgment

may be self-evident, but a party may still “prevail” if its ends

are accomplished as a result of the litigation even without formal

judicial recognition”). This has led at least one court to

conclude that Farrar has swept the catalyst theory into the

judicial trash heap. See S-1 & S-2 v. State Bd. of Educ., 21 F.3d

49, 51 (4th Cir.) (en banc), cert. denied, 513 U.S. 876 (1994)

(expressly overruling the “catalyst” theory and stating that a

plaintiff may only qualify as a “prevailing party” by virtue of

“having obtained an enforceable judgment, consent decree, or

settlement giving some of the legal relief sought”). Other courts

have disagreed, finding that their respective versions of the

catalyst theory remain viable. See, e.g., Ellis v. University of

11
Kansas Med. Ctr., 163 F.3d 1186 (10th Cir. 1999); Brown v. Local

58, Int’l Bd. of Elec. Workers, AFL-CIO, 76 F.3d 762 (6th Cir.

1996); Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995); Kilgour v. City

of Pasadena, 53 F.3d 1007 (9th Cir. 1995); Zinn v. Shalala, 35 F.3d

273 (7th Cir. 1994).

This Court has never fully explored the impact of Farrar on

the catalyst theory. There have been a few cases after Farrar that

have continued to apply the catalyst rule. See, e.g., Watkins v.

Fordice, 7 F.3d 453, 456 (5th Cir. 1993) (acknowledging the

catalyst theory without discussing the potential conflict with

Farrar); Pembroke v. Wood County, 981 F.2d 225, 231 n.27 (5th Cir.

1993) (distinguishing Farrar and seeming to limit its holding to

suits seeking money damages, but not discussing potential conflict

between the catalyst theory and Farrar); Milton v. Shalala, 17 F.3d

812, 814-15 (5th Cir. 1994) (acknowledging the catalyst theory

without discussing potential conflict with Farrar). And in one

opinion we acknowledged the question and observed that the catalyst

theory “might” still be good law. Craig v. Gregg County, 988 F.2d

18, 20-21 (5th Cir. 1993). But we have never addressed the issue

directly. Though the defendants now urge us to engage in that

close debate, we decline the invitation. Assuming, without

deciding, that the catalyst theory still applies in this Circuit,

the facts of this case do not support a finding that the plaintiffs

12
were prevailing parties under 42 U.S.C. § 1973l(e).

We have held that under the catalyst theory a plaintiff may

obtain attorney’s fees as a prevailing party only if it establishes

(1) that the relief sought by plaintiff was in fact obtained, and

(2) that the suit itself caused the defendant to alter its conduct.

Pembroke, 981 F.2d at 230. In order to prove the requisite

causation, the lawsuit must have been a “a substantial factor or a

significant catalyst” in motivating the defendants to alter their

behavior. Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir.

1981). Here, the defendants assert that the plaintiffs do not

qualify as prevailing parties because they failed to obtain the

relief sought in their suit. The defendants also contend that

there is insufficient evidence that the plaintiffs’ action was a

substantial factor in the Texas legislature’s decision to adopt the

gubernatorial appointment procedure. We agree on each count.

The plaintiffs brought suit under § 5 of the VRA. The

gravamen of their complaint is that the defendants adopted the 1996

appointment procedure without preclearing it with the Department of

Justice, as required by the statute. For relief the plaintiffs

requested: (1) a declaration from the district court that the 1996

Order was legally unenforceable; (2) a temporary and permanent

injunction against the defendants’ use of any procedure that had

not been precleared; (3) a declaration from the district court

ordering the defendants to preclear the procedure; and (4) a

13
declaration from the district court ordering that the 1996 election

be conducted using a legally enforceable procedure, or,

alternatively, the procedure used from 1982 to 1995.

From a cursory reading of the plaintiffs’ complaint it is

evident that the plaintiffs filed this action solely to enforce

§ 5's preclearance procedures. It is equally apparent that all of

the plaintiffs’ requested relief flowed from the rights that

accrued under § 5 of the VRA. Thus, when the Texas legislature

adopted an entirely different appointment method, mooting the

litigation, the plaintiffs went home empty handed. They received

none of the substantive relief for which they originally filed

suit.

The plaintiffs, however, would have us believe that they

successfully obtained relief in the form of the newly-enacted

gubernatorial method. They would point to the fact that under that

new method they were reappointed to their old positions. Though

carrying some initial appeal, their argument fails under close

scrutiny.

The plaintiffs’ complaint is filed under the narrow confines

of § 5 of the VRA, with the stated intent of forcing the defendants

to preclear the 1996 appointment procedure. It may be true that

the plaintiffs filed this action with the goal of pressuring the

defendants into adopting a different procedure. But hidden motives

are not the stuff on which attorney’s fees are based. A defendant

cannot be asked to pay attorney’s fees for relief which was never

14
demanded, or even made clear, in the plaintiff’s complaint.

Similarly, even under the catalyst theory it will be a rare case

indeed where a defendant is made to pay attorney’s fees for relief

that was secured from an independent third-party who was never a

party to the lawsuit.6 We conclude that the district court clearly

erred in finding that the plaintiffs were successful in obtaining

the relief sought by filing this action.

Likewise, even if we assume that the plaintiffs did obtain

some relief, there is insufficient evidence of a causal connection

between the plaintiffs’ individual suit and the Texas legislature’s

decision to revamp the appointment procedure. As evidenced by its

name, the catalyst theory requires that a plaintiff prove that the

suit itself was a catalyst for relief. That is, the plaintiff must

prove that the plaintiff’s suit was a “substantial factor” in

achieving the relief sought. Robinson, 652 F.2d at 466.

Critically, a plaintiff does not satisfy that standard with

evidence of a causal connection in the most basic sense. Instead,

the plaintiff must prove the lawsuit itself, as a discrete event,

had a significant and identifiable influence on the attainment of

relief. Considering that the legislative process is fraught with

compromises, competing concerns, and unspoken motives, a plaintiff

who attempts to prove that his individual suit was the catalyst

6
We have been able to find no Fifth Circuit case which
applies the catalyst theory under such circumstances.

15
behind the passage of general legislation faces a formidable task.

See Milton v. Shalala, 17 F.3d at 815 (“The mere possibility that

Congress acted because of an individual claimant’s suit (or

reacted to a large number of similar suits) is too speculative in

our view considering the many influences upon members of Congress

in casting their votes. We agree with the cases that have refused

to credit the change in law to a claimant’s individual law suit and

found the nexus between Congress’s action and the law suit too

attenuated.”)

In this case, the district court found the necessary level of

causation based solely on the affidavits of three Texas legislators

filed after the new appointment method was adopted and after the

suit was dismissed. In those affidavits the legislators

essentially stated that the Texas legislature decided to enact the

new procedure as a result of the plaintiffs’ suit. The district

court’s exclusive reliance on those three affidavits was clearly

erroneous.

No one legislator, or even a group of three legislators, has

sufficient personal knowledge to declare the overall intent of the

Texas legislature. See Bread Political Action Comm. v. Federal

Elec. Comm., 455 U.S. 577, 582 n.3 (1982) (expressly refusing to

give probative weight to after-the-fact affidavit of amendment

sponsor regarding legislative intent); Milton, 17 F.3d at 815. For

that we rely on the official legislative record, which is itself

16
often insufficient, unhelpful or confusing. In this case, three

post hoc, after-the-fact, affidavits do not, standing alone, prove

that the plaintiffs’ suit was a substantial factor in the

legislature’s decision. They may show that the plaintiffs’ lawsuit

was a factor, to be sure. But they in no way show that it was a

“substantial factor.” We are strengthened in that conclusion by

the fact that the plaintiffs have pointed to no other evidence in

the legislative record which affirmatively shows that the Texas

legislature enacted the gubernatorial method in response to the

plaintiffs’ suit. Moreover, we find it significant that the Texas

legislature began the process of amending the appointment method

well before the plaintiffs initiated this action.7

Thus, even were we to find that the plaintiffs received the

relief they sought, there is insufficient evidence that the

plaintiffs’ suit caused the Texas legislature to amend § 32.002 of

7
The defendants correctly point out that an almost
identical version of the bill that eventually became revised §
32.002 was introduced in the 1995 legislative session. Compare
Tex. H.B. 2241, 74th Leg., R.S. (1995), with Tex. H.B. 331, 75th
Leg., R.S. (1997) (introduced version), and Tex. Elec. Code §
32.002 (1999). The 1995 bill passed the Texas House as part of an
omnibus election bill, but never passed the Senate. Then, a nearly
identical bill was filed in the 1997 session. Tex. H.B. 331, 75th
Leg., R.S. (1997) (introduced version). Therefore, the statutory
change that the plaintiffs claim to have catalyzed was in fact
being considered by the Texas legislature well before the
plaintiffs’ suit was filed. We note, additionally, that the relief
sought by the plaintiffs’ suit, i.e., preclearance by the
Department of Justice of a change in voting procedures, is entirely
separate and distinct from the change contemplated by the
legislative acts, i.e., a substantive change in the procedure for
selecting precinct judges.

17
the Election Code. We find that the district court committed clear

error in finding that the plaintiffs’ suit was the catalyst behind

that legislative decision. This leaves us with the last remaining

issue in this appeal, whether the district court erred in finding

that the plaintiffs acquired prevailing party status by seeking and

receiving a temporary restraining order.

B.

In its written order the district court held that “the

plaintiffs did prevail with respect to their request for a

temporary restraining order to enjoin the September 3, 1996,

order.” That, however, was the total extent of the district

court’s reasoning. On appeal the defendants assert that a

temporary restraining order does not make a plaintiff a prevailing

party. The defendants assert that it is merely a transitory order

that has no affect on the merits of the litigation. We agree.

Farrar is clear. To achieve prevailing party status there

must be “actual relief on the merits” which “materially alters the

legal relationship between the parties.” Farrar, 506 U.S. at 111.

A temporary restraining order is not merits-based relief. Nor is

it a final remedy. A temporary restraining order is a “stay put,”

equitable remedy that has as its essential purpose the preservation

of the status quo while the merits of the cause are explored

through litigation. As such, a temporary restraining order cannot

18
constitute the type merit-based relief that affords a plaintiff

prevailing party status. The district court committed clear error

in reaching a contrary conclusion.

IV.

Although today we do not decide whether the catalyst theory

survives Farrar in this Circuit, we hold that even under the

catalyst theory the district court clearly erred in finding that

the plaintiffs were prevailing parties. Accordingly, as the

district court abused its discretion in granting attorney’s fees

under 42 U.S.C. § 1973l(e), we reverse and render judgment that

plaintiffs take no attorney’s fees.

g:\opin\98-10864.opn 19
 CARL E. STEWART, Circuit Judge, dissenting:

The majority has held that the district court clearly erred in

finding that the plaintiffs were prevailing parties, and that

therefore the district court abused its discretion in awarding the

plaintiffs attorneys’ fees under 42 U.S.C. § 1973l(e). While I

agree that the catalyst theory is the appropriate basis upon which

to decide this case, I cannot agree with the conclusion reached by

the majority. For the following reasons I respectfully dissent.

This court reviews the district court’s award of attorneys’

fees for abuse of discretion, and the underlying factual findings

are reviewed for clear error. See League of United Latin American

Citizens No. 4552 (LULAC) v. Roscoe Independent School District,

119 F.3d 1228, 1232 (5th Cir. 1997). This court has clearly

emphasized that a district court has broad discretion in

determining the appropriate award of attorneys’ fees. See

Associated Builders and Contractors of Louisiana Inc. v. Orleans

Parish School Board, 919 F.2d 374, 379 (5th Cir. 1990); LULAC, 119

F.3d at 1232. The determination of attorneys’ fees is an

“intensely factual” inquiry, and thus the district court’s broad

discretion in this area is appropriate because of the district

court’s superior understanding of the litigation and the

desirability of avoiding frequent appellate review of what

essentially are factual matters. Associated Builders, 919 F.2d at

g:\opin\98-10864.opn 20
379 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct.

1933, 1941, 76 L.Ed.2d 40 (1983)); see also Posada v. Lamb County,

Tex, 716 F.2d 1066, 1072 (5th Cir. 1983). Viewing the facts of the

present case from this deferential standard of review, and

considering the broad discretion that should be accorded the

district court in this area I cannot agree with the majority that

the district court clearly erred in its factual findings, and

abused its discretion in awarding attorneys’ fees to the

plaintiffs.

To establish prevailing party status under the catalyst

theory,8 the plaintiffs must demonstrate (1) that the relief they

sought was in fact obtained, and (2) that the suit itself caused

the defendant to alter its conduct. See Pembroke v. Wood County,

981 F.2d 225, 230 (5th Cir. 1993). The majority opines that the

plaintiffs filed this action solely to enforce the preclearance

procedures mandated by § 5 of the Voting Rights Act, and that when

the Texas legislature adopted a method of appointment that was

different from the one specifically advocated by either the

8
In deciding this case the majority applies the catalyst
theory, but states that “the continuing validity of the catalyst
theory is in serious doubt” due to the Supreme Court’s decision in
Farrar v. Hobby, 506 U.S. 103, 109 (1992). The majority declines
to decide whether the catalyst theory still applies in this
Circuit, however, it is critical to acknowledge that post-Farrar
this Circuit and the majority of other circuits have continued to
apply the catalyst theory. See, e.g., Pembroke v. Wood County,
981 F.2d 225, 231 n.27 (5th Cir. 1993); Craig v. Gregg County, 988
F.2d 18 (5th Cir. 1993); Ellis v. University of Kansas Medical
Center, 163 F.3d 1186 (10th Cir. 1999); Zinn v. Shalala, 35 F.3d
273 (7th Cir. 1994).

g:\opin\98-10864.opn 21
plaintiffs or defendants, the plaintiffs “went home empty handed”.

The record, however, does not support the majority’s conclusion.

The plaintiffs, a group of African-American and Hispanic

voters of Dallas County who had served as election judges, brought

this complaint after the Commissioners Court of Dallas County

(“defendants”) sought to make changes in the appointment procedures

for election judges. These changes which were adopted September 3,

1996 (“1996 Order”) meant that the plaintiffs would lose their

positions as election judges. The plaintiffs’ original complaint,

filed on October 3, 1996, alleged that the defendants changed the

procedures for appointing election judges without the preclearance

of the Department of Justice as required under § 5 of the Voting

Rights Act. The plaintiffs sought declaratory and injunctive

relief to block the implementation of any procedure that was not

precleared, including a specific declaration that the 1996 Order

was not legally enforceable. The plaintiffs were immediately

successful on two fronts. First, the district court granted the

plaintiffs’ request for a temporary restraining order which blocked

the defendants from implementing the 1996 Order. Furthermore, a

few days after the district court issued the temporary restraining

order the defendants rescinded the 1996 Order, and implemented a

different procedure which granted the Commissioners Court of Dallas

County discretion in selecting the election judges (“October

Order”). As a result of the defendants response to the temporary

restraining order the plaintiffs were successful in one of their

g:\opin\98-10864.opn 22
goals for the litigation which was to insure that the 1996 Order

was not implemented. While the plaintiffs did not achieve this

goal through a declaration from the district court that the 1996

Order was legally unenforceable, it is clear from the record that

the defendants abandoned the 1996 Order in response to the

litigation. The defendants abandoned the 1996 Order only five days

after the temporary restraining order was issued that resulted in

a short term cessation of the implementation of the 1996 Order.

This court has recognized that when a lawsuit motivates a defendant

to take voluntary action to alleviate the conditions outlined in

the complaint, the plaintiff can be considered a prevailing party

although they received no judicial decree. See Pembroke, 981 F.2d

at 230.

The second goal of the plaintiffs’ complaint was to have the

procedures for appointing election judges precleared by the

Department of Justice as prescribed in § 5 of the Voting Rights

Act. After the defendants abandoned the 1996 Order and replaced it

with a discretionary method of selecting election judges, the

plaintiffs amended their complaint seeking § 5 preclearance of this

procedure. The defendants steadfastly maintained throughout this

litigation that the procedures to select election judges were not

subject to preclearance under § 5 of the Voting Rights Act because

these were discretionary activities as provided for in the Texas

Election Code, which was precleared in 1985. The three judge

district court agreed with the defendants’ theory and refused the

g:\opin\98-10864.opn 23
plaintiffs’ application for a permanent injunction on the grounds

that the defendants’ procedures were a proper exercise of

discretion granted by the state election statute.

Despite this setback, the plaintiffs were eventually

successful in receiving a judicial declaration that the procedures

for appointing election judges are subject to the requirements of

§ 5 of the Voting Rights Act. The Supreme Court, in Foreman v.

Dallas County, 521 U.S. 979, 980 (1997) held that the actions of

the Commissioners Court of Dallas County in selecting election

judges may require preclearance because the County’s exercise of

its discretion under the Texas Election Code does not shield its

actions from § 5.9 Foreman v. Dallas County, 521 U.S. 979, 980,

117 S.Ct. 2357, 2358, 138 L.Ed. 2d 972. This Supreme Court

decision meant that the defendants would no longer be able to

implement any procedure for appointing election judges without

meeting the requirements of § 5 of the Voting Rights Act, including

preclearance if the defendants sought to implement procedures that

had not previously been precleared.

The Supreme Court remanded the case for further proceedings,

but while the case was on appeal to the Supreme Court the Texas

Legislature amended § 32.002 of the Texas Election Code to provide

that all precinct election judges would be chosen based on the

9
The Supreme Court did not make a final determination
whether preclearance was required for the October Order because the
record did not contain sufficient information. See Foreman, 521
U.S. at 981.

g:\opin\98-10864.opn 24
results from the gubernatorial elections (“gubernatorial method”).

Texas submitted the gubernatorial method for Preclearance from the

Department of Justice which was granted by the Attorney General in

September 1997. Thus, the October 1996 Orders which were the

subject of this litigation were superceded by the precleared

gubernatorial method of selection adopted by the Texas legislature.

As a result of the legislation the plaintiffs were all reappointed

as election judges, and the defendants were forced to implement a

system of selection which was precleared under § 5 of the Voting

Rights Act.

The actions of the Texas legislature helped provide the

plaintiffs with one aspect of the relief they sought by forcing the

defendants to adopt a precleared method of appointing election

judges. Therefore to be prevailing parties under the catalyst

theory the plaintiffs must demonstrate that their suit was a

significant contributing factor in the Texas legislature’s

actions. See Posada, 716 F.2d at 1072. The lawsuit need not be

the sole reason for the legislature’s action, but the plaintiffs’

actions must have made an important contribution to the

improvements which were achieved. Id. The majority finds

that the district court clearly erred in finding that there was a

causal link between the plaintiffs’ lawsuit and the actions of the

Texas legislature. Specifically, the majority holds that the

district court clearly erred in its reliance on the affidavits of

three Texas legislators to establish this causal link. I disagree

g:\opin\98-10864.opn 25
with the majority that the district court clearly erred in relying

on these affidavits.

The majority cites Bread Political Action Committee v. Federal

Election Committee, 455 U.S.577, 582 n.3 (1982) for the proposition

that no single legislator, or even a group of three legislators has

sufficient personal knowledge to declare the overall intent of the

legislature. In Bread Political Action Committee, the Supreme

Court interpreted the language of the Federal Election Campaign Act

of 1971(“FECA”). The plaintiffs argued that to interpret the

meaning of FECA the Court should not rely solely on the language of

the statute but instead should expansively construe the statute.

See Bread Political Action Comm., 455 U.S. at 581. As part of

their evidence to convince the Court to adopt this expansive

construction of FECA the plaintiffs offered the affidavit of the

senator who sponsored the amendment as proof that the legislature

intended for the bill to be liberally construed by the courts. The

senator’s opinion contradicted the language of the bill itself, and

the Court concluded that the senator’s statements should be given

no probative weight regarding the legislative intent. See Bread,

455 U.S. at 582 n.3.

The present case is clearly distinguishable from Bread

because in this case the district court did not rely on the

affidavits of the Texas legislators to interpret the meaning of the

Texas Election Code, or the legislative intent in regards to how

the statute should be applied. Instead the plaintiffs offered

g:\opin\98-10864.opn 26
these affidavits to demonstrate that their lawsuit was a catalyst

in the passage of the legislation, including motivating the

introduction of the legislation. The question in Bread was

legislative intent, and the question in this case is legislative

motive. In determining legislative motive it is helpful to examine

different factors.

It is logical that in seeking to interpret the meaning of a

statute that courts should reject the post-hoc opinions of

legislators as controlling evidence because the courts already have

adequate information that can be gleaned from the language of the

statute itself or the official legislative history. See Bread, 455

U.S. at 580 (stating that analysis of the issue of statutory

construction must begin with the language of the statute itself).

However, what will often not be found in the language of a statute

or the official legislative history is the motivation for

introducing a bill, or each member of the legislatures reasons for

supporting the legislation. The majority acknowledges that

legislative history is often “insufficient, unhelpful or

confusing.” Absent a holding that a party can never conclusively

establish that a lawsuit is a catalyst for legislation because of

the impreciseness of the proof available, we must acknowledge some

reasonable method for parties to prove that their actions were a

catalyst in the passage of legislation. One reasonable method of

establishing that a lawsuit was a significant factor in the

introduction and passage of legislation is to determine the

g:\opin\98-10864.opn 27
legislators’ motivation by considering the legislators’ statements

about their motivation.

The plaintiffs received affidavits from three Texas

legislators, Senator Royce West (“Senator West”), Representative

Debra Danburg (“Representative Danburg”), and Representative Terri

Hodge (“Representative Hodge”). Senator West stated that he

introduced Senate Bill 130, which advocated the gubernatorial

method of appointing election judges after hearing about the

defendants’ 1996 Order which would have altered the selection

procedures. Senator West further revealed that he attended a

public meeting to voice his concerns to the defendants about the

change of procedures in choosing presiding election judges.

Finally, Senator West stated that he was involved in discussions

with the plaintiffs’ counsel about pursuing the present lawsuit,

and that the present lawsuit served as a catalyst for his

introduction of the legislation in the Texas Senate. The majority

states that the legislators do not have personal knowledge of the

motivations of the legislature, however, as the sponsor of the

Senate bill Senator West certainly has personal knowledge of what

caused him to introduce the legislation which eventually was passed

into law by the legislature.

Representative Danburg, who serves as the chair of the Texas

House of Representatives Committee on Elections, introduced House

Bill 331 which was similar to Senator West’s Senate bill in that it

also advocated the use of the gubernatorial method for appointing

g:\opin\98-10864.opn 28
election judges. Representative Danburg stated that when she

introduced House Bill 331 she was aware of the lawsuit and it

served as a catalyst for her to introduce the bill, and that the

lawsuit was a causal factor in the action taken by the legislature.

It is difficult to dispute that a legislator knows their own

motivations for introducing bill and what influenced them to take

that action.

Representative Hodge who is a member of the Dallas County

delegation to the Texas House of Representatives declared that she

became aware of this lawsuit in the Fall of 1996, this lawsuit was

the subject of conversation among her colleagues in the

legislature, and that the lawsuit was a catalyst in the bringing

about the legislative action.

It is important to note that the defendants offered no

affidavits or evidence that contradicted the sworn testimony of

these three Texas legislators who all clearly stated that the

present lawsuit was a significant factor in the introduction and

passage of the legislation which forced the defendants to adopt the

precleared gubernatorial method for appointing election judges.

The only support the defendants offered to bolster their argument

that the lawsuit was not a catalyst for the legislation was a copy

of a 1995 house bill with almost identical language to the language

used in Senate Bill 130 and House Bill 331. The majority

determines that the existence of a bill which proposed the

gubernatorial method of selection before the lawsuit was filed

g:\opin\98-10864.opn 29
demonstrates that the 1997 legislation was already under

consideration by the Texas legislature, and therefore the 1997

legislation could not have been catalyzed by the plaintiffs’

lawsuit. However, the 1995 bill which passed in the Texas House

was not adopted by the Texas Senate. Therefore, a bill proposing

the gubernatorial method of appointment was not under consideration

by the legislature when the plaintiffs filed their lawsuit in the

fall of 1996. Moreover, there is no support in the case law for

the notion that the preexistence of a legislative concept is a per

se bar to an evidentiary determination of catalytic effect.

Senator West and Representative Danburg who introduced the 1997

bills in the Senate and Houses were unequivocal in their testimony

that it was the plaintiffs’ lawsuit that was the catalyst for their

introduction of the bill. The majority does not appear to question

the truthfulness or veracity of Senator West or Representative

Danburg’s testimony. Therefore, absent the presence of

contradicting affidavits or other substantive evidence the

defendant’s alternative explanation of the 1995 bill as a

motivation for the legislator’s introduction of the 1997 bill was

correctly found by the district court to be unavailing.10

10
The majority states that their conclusion that the three
Texas legislators’ statements are not sufficient evidence is
strengthened by the fact that plaintiffs’ point to no other
evidence in the legislative record which affirmatively shows that
the Texas legislature acted in response to the plaintiffs’ lawsuit.
However, there was one mention of the lawsuit in the legislative
record. Steve McDonald, an employee of the Texas Democratic party,
submitted an affidavit to the district court which stated that he

g:\opin\98-10864.opn 30
 Finally, the majority cites Milton v. Shalala, 17 F.3d 812 (5th

Cir. 1994) for their proposition that it is difficult to establish

a causal connection between the legislature’s actions and an

individual suit. In Milton, this court rejected a plaintiff’s

claim for attorneys’ fees where the plaintiff was one of the

thousands of litigants whose lawsuits may have helped spur the

enactment of a social security disability reform act. The panel

stated that the mere possibility that the United States Congress

acted because of an individual claimant’s suit is too speculative

to credit a change in the federal law to a claimant’s individual

lawsuit. Milton, 17 F.3d at 815. I do not quarrel with the

holding in Milton. Unlike Milton, the present plaintiffs’ lawsuit

was not simply one of thousands of lawsuits that all sought redress

for the same complaint making it difficult to establish a nexus

between any one of the many lawsuits and the congressional action.

The record does not indicate that there were any other lawsuits

pending to address appointment procedures for election judges in

Texas. Unlike Milton, the plaintiffs’ action in this case was

unique in its challenge, and is specifically credited by the

sponsoring legislators as a catalyst in the introduction and

passage of the legislation. Furthermore, there is no indication

that the plaintiff in Milton offered any evidence to establish a

testified about the 1997 bill in the Texas Senate, and during his
testimony specifically cited this litigation as a reason for the
Senate to adopt the bill. No counter affidavit is found in the
record.

g:\opin\98-10864.opn 31
causal link between his individual lawsuit and the congressional

action taken. In contrast, these plaintiffs have offered the

uncontradicted, sworn declarations of three Texas legislators who

state that the present lawsuit was a catalyst in the passage of the

1997 legislation.

For the above reasons I disagree with the majority that the

district court clearly erred in finding that the plaintiffs’

lawsuit was not a substantial factor in the passage of legislation

which forced the defendants to adopt the precleared gubernatorial

method of appointing election judges. The plaintiffs met the goals

of their lawsuit in that the lawsuit caused the defendants to

abandon the 1996 order. The plaintiffs also received a favorable

decision from the Supreme Court that the appointment procedures for

election judges are subject to § 5 of the Voting Rights Act.

Finally, the plaintiffs were reappointed to their offices as

election judges. This occurred as a result of the 1997 Texas

legislation which forced the defendants to modify their procedures.

According to all the substantive evidence presented to the district

court this new legislation was catalyzed by the plaintiffs’

lawsuit. The factual determinations of the district court are

amply supported by the record. Therefore, the district court did

not abuse its discretion in awarding attorneys fees to the

plaintiffs under 42 U.S.C. § 1731(e). Accordingly, I respectfully

dissent.

g:\opin\98-10864.opn 32