Rick Perry, in His Official Capacity as Governor of the State of Texas Henry Cuellar, in His Official Capacity as Secretary of State of the State of Texas v. David Brown, David O. Zambrano and Joy Smith

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00341-CV

Rick Perry, in his official capacity as Governor of the State of Texas, Henry Cuellar, in his
official capacity as Secretary of State of the State of Texas, and Bill Ratliff, in his official
capacity as Lieutenant Governor of the State of Texas, Appellants

v.

David Brown, David O. Zambrano and Joy Smith, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN100812, HONORABLE PAUL DAVIS, JUDGE PRESIDING

In this interlocutory appeal regarding state legislative redistricting, we consider

whether the trial court committed reversible error by denying a plea to the jurisdiction based upon

issues of ripeness. Applying principles recently enunciated by this Court and the Texas Supreme

Court in Perry v. Del Rio, we will affirm.1 See Perry v. Del Rio, No. 01-0728, 44 Tex. Sup. Ct. J.

1147, 2001 Tex. LEXIS 81 (Sept. 12, 2001); Perry v. Del Rio, No. 03-01-00340-CV, 2001 Tex.

App. LEXIS 5368 (Tex. App.—Austin Aug. 9, 2001).

1
The appellees argue that the appeal should be dismissed for want of jurisdiction because the
appellants are not “governmental units” under the sections of the Civil Practice and Remedies Code
that provide for interlocutory appeals. See Tex. Civ. Prac. & Rem. Code Ann. §§51.014(a)(8),
101.001 (West Supp. 2001). For the reasons we set out in Del Rio, we overrule the appellees’
motion to dismiss and will consider the appeal. See Perry v. Del Rio, No. 03-01-00340-CV, slip op.
at 2-6, 2001 Tex. App. LEXIS 5368, at *3-9 (Tex. App.—Austin Aug. 9, 2001, pet. dism’d).
 On January 9, 2001, the Texas Legislature convened its 77th Regular Session. On

March 12, the 2000 census information was published, showing that due to population growth and

shifts, Texas’ current legislative districts were malapportioned and needed to be redrawn. The

legislature adjourned sine die on May 28, 2001, without passing a state redistricting plan. As

provided by the Texas Constitution, the Legislative Redistricting Board (the “LRB”) then had sixty

days from its first meeting to draft a constitutionally-sound redistricting plan. See Tex. Const. art.

III, § 28. The LRB convened on June 6 and apparently adopted its plan on July 24.

On March 16, 2001, David Brown, David O. Zambrano, and Joy Smith (collectively

“Brown”) filed suit in Travis County against the Governor, the Lieutenant Governor, the Speaker of

the Texas House of Representatives, the Secretary of State, and the chairs of the state Democratic

and Republican parties. Brown sought declaratory and injunctive relief regarding the malapportioned

state legislative districts. The Governor, the Secretary of State, the Lieutenant Governor, and the

chair of the Republican Party filed pleas to the jurisdiction alleging the suit was not ripe for

determination. On May 31, after the legislature had adjourned sine die without the passage of a state

legislative redistricting plan, Brown amended his petition to reflect that fact. Subsequently, on June

15, the district court denied the pleas to the jurisdiction, and the Governor, Secretary of State, and

Lieutenant Governor (collectively “Appellants”) appealed. Brown filed a second amended petition

on July 25 and additional amendments thereafter.2

2
Another lawsuit regarding the same issues was filed in Travis County on July 25. See Breedlove
v. Perry, trial court cause no. GN1-02285. That case has now been consolidated with the Brown case
in the district court during the pendency of this appeal.

2
 Appellants complain that the district court erred in denying the pleas to the jurisdiction

because the ripeness of a lawsuit must be evaluated as of the date the suit is filed and, therefore,

Brown’s suit was not ripe because the time had not yet run on the legislature’s and the LRB’s power

to enact a satisfactory redistricting plan. Contrary to Appellants’ argument, the supreme court in Del

Rio stated:

Patterson[3] and Gibson[4] both support the proposition that a case which is not ripe
when filed may be dismissed, especially if the likelihood that it will soon become ripe
cannot be demonstrated. The district court could properly have dismissed Del Rio for
lack of ripeness while the Legislature was still considering redistricting during the
regular session . . . . But just as a case may become moot after it is filed, it may also
ripen. After the claims in Del Rio ripened, the district court was not required to
dismiss the case simply because it was filed prematurely. . . . [W]e hold that a claim’s
lack of ripeness when filed is not a jurisdictional infirmity requiring dismissal if the
case has matured.

Del Rio, No. 01-0728, slip op. at 18-19, 44 Tex. Sup. Ct. J. at 1154, 2001 Tex. LEXIS 81, at *30-32

(emphasis in original).

Although the principles set forth in Del Rio govern our decision, the facts differ

somewhat. Because the legislature is charged with drawing congressional districts, the supreme court

determined that the so-called “bright-line” date upon which congressional redistricting claims became

ripe for adjudication was the day the legislature adjourned sine die without having passed a

congressional redistricting bill. Id., slip op. at 27. In Del Rio, the trial court denied the pleas to the

jurisdiction after that bright-line date. Id., slip op. at 8-9. In contrast, no court has decided a bright-

3
Patterson v. Planned Parenthood, 971 S.W.2d 439 (Tex. 1998).
4
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).

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line date for determining the ripeness of state-redistricting cases. Assuming the same date controls,

Brown’s suit likewise was ripe when the pleas were denied. Arguably, however, because the state

constitution charges the LRB with creating legislative districts if the legislature fails to do so, the

bright-line date on which state legislative redistricting suits ripen may be later than sine die

adjournment. Assuming the bright-line date was the date on which the LRB acted (July 24) or when

its constitutionally-mandated sixty days expired (August 5), we note that the district court denied the

pleas to the jurisdiction on June 15, before either of those dates. Although in Del Rio the supreme

court suggested that a trial court has some discretion to refuse to dismiss when the parties can

demonstrate a likelihood that the cause will soon become ripe,5 we need not reach this issue. See id.,

slip op. at 18-19. The supreme court recognized that in determining ripeness, appellate courts may

consider circumstances that occur after a trial court rules. See id., slip op. at 16 n.50 (citing Buckley

v. Valeo, 424 U.S. 1, 114-17 (1976) (considering events occurring after lower court’s decision), and

Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974) (“since ripeness is peculiarly a

question of timing, it is the situation now rather than the situation at the time of the District Court’s

decision that must govern.”)).

Applying this rationale, issues regarding state redistricting are now obviously ripe.

Therefore, because this cause has now ripened with age, we cannot conclude that the district court

committed reversible error in denying Appellants’ pleas to the jurisdiction. We make no

5
The LRB convened on June 6. The LRB was required to conclude its redistricting business by
August 5. See Tex. Const. art. III, § 28. On June 15, when the district court denied Appellants’
pleas, it was clear that at the latest this cause would ripen in fewer than sixty days.

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determination of whether the district court in Brown has dominant jurisdiction over any other court

regarding the state legislative redistricting cases. We affirm the district court’s order.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and Yeakel

Affirmed

Filed: October 4, 2001

Publish

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