Terrazas v. Ramirez

HIGHTOWER, Justice,

dissenting.

I agree that the trial court must find an enacted redistricting plan unconstitutional before imposing an alternative court plan, and must protect the public interest in approving an interim plan pursuant to a settlement. I disagree with the plurality, however, because by deciding this case on the merits as though there had been a proper intervention, the plurality gets the cart before the horse. The first question should be whether relators are procedurally entitled to mandamus relief. I also object to the plurality opinion because it does not set forth exactly what the trial judge must do — what weight he should give to the factors he must consider and the extent of the evidence he must have supporting his findings on those factors.

I

Relators are not entitled to mandamus relief because they consciously chose a litigation strategy to not seek their legal remedy of intervention and appeal. The plurality opinion expands the circumstances under which this court may grant mandamus relief by presuming that the trial court would have denied relators’ proper request to intervene. That action in itself opens this court to a possible deluge of additional mandamus proceedings which it should not entertain. The plurality opinion goes further to grant relators mandamus relief because they should have been allowed to intervene, without even ruling that by seeking and receiving that relief in this court they have now intervened as a matter of law, and are henceforth parties to the trial court proceedings. The plurality’s results are logically inconsistent and contrary to our established standards declaring when parties are entitled to mandamus relief. Accordingly, I dissent.

A

The plurality opinion concludes that rela-tors may properly seek mandamus relief here without first seeking to intervene and set aside the judgment in the trial court. The opinion concludes relators have no adequate legal remedy by appeal, and at the same time excuses them from the responsibility of seeking their adequate legal remedy. The opinion allows them mandamus relief of setting aside a judgment, not because it is void, but because the trial court abused its discretion in the manner of approving it; all without requiring the usual appeal to set aside a judgment. The mandamus remedy is not supposed to be a “super appeal” for immediate review “to bypass the ordinary appellate process” of correcting a trial court judgment. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex.1991). Mandamus should facilitate the ordinary legal remedy of appeal, not substitute for it.

The plurality opinion states that relators are excused from seeking to intervene because the trial court’s rulings in Mena and Quiroz refusing to allow Senators Sims and Lucio to intervene show it would have been a “pointless” request, as in Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979), or effectively precluded by a prior ruling, as in Doctors Hospital Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178-79 (Tex.1988).

In Stoner and Doctors Hospital, the problem was an impasse in our system of *750appellate procedure. In Stoner, the court of civil appeals had ordered that no further motions for rehearing would be entertained, but a motion for rehearing to the new judgment was a procedural prerequisite to further appeal by application for writ of error to this court. Accordingly, we held that an attempt to file the motion for rehearing was deemed made because attempting it would have been “pointless,” and ordered the court of civil appeals to file the motion.

In Doctors Hospital, the court of appeals had overruled one party’s motion for rehearing while another party’s was still pending. The first party sought application for writ of error and this court granted it, all while the other party’s motion for rehearing was still pending. Based on the rule that this court’s taking jurisdiction by writ of error divested the court of appeals of appellate jurisdiction, the court of appeals had dismissed the other party’s motion for rehearing. Again, this action would have precluded the party whose motion was still pending from writ of error relief, because the overruling of its (Doctors Hospital’s) motion for rehearing was a procedural jurisdictional prerequisite to this court’s taking jurisdiction of its application for writ of error. This court applied a variant of the Stoner exception to conclude that it would have been pointless to file a further motion for rehearing, since the court of appeals had concluded it lacked jurisdiction to rule on the motion. In fact, this court had to overrule Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605 (1935), in part, to conclude that the court of appeals had jurisdiction to rule on the pending motion it had a ministerial duty to address under our rules of appellate procedure.

Today the plurality opinion takes the limited exception of Stoner and Doctors Hospital and extends it (1) to non-parties, (2) beyond the appellate procedure impasse context, and (3) without requiring as a basis an existing express inconsistent order from the lower court. Both Stoner and Doctors Hospital involved existing orders making it impossible that the lower court could have granted the request, if asked, because to do so would have conflicted with those existing orders. This dangerous and unwarranted extension opens virtually any judgment to attack on the merits by non-party mandamus, based in part on the ground that as non-parties they have no right to appeal.1 At the same time, the plurality opinion would excuse those attacking the judgment from even having to request intervention to seek the right of appeal on the merits, on pure speculation that the lower court would have denied the request. Thus the plurality would make mandamus the preferred route to question trial court judgments, rather than requiring relators to seek the ordinary legal remedies which would allow them to appeal.

B

The plurality opinion further defies logic and reason by not declaring that relators in this court have now become intervenors in the trial court proceedings by virtue of the mandamus relief this court grants. The basis for the relief granted is relators’ right to intervene in the trial court to assert their rights. By an expansion of Stoner, the plurality excuses relators from seeking intervention in the trial court and a legal remedy by appeal. Then, after granting mandamus relief based on that excuse, the plurality opinion declines to declare that by seeking such mandamus relief in this court, and obtaining it, relators become intervenors in the trial court.

The plurality excuses relators from seeking their legal remedy of intervention and appeal. This court by mandamus grants *751them the same relief of voiding the trial court judgment they could have obtained by their “lost” legal remedy by appeal. But after granting them the rights of inter-venors, the plurality does not subject them to the legal consequences of intervention of being bound by the effective “remand” of the judgment this court declares voided. Relators can reverse the trial court judgment for its defects, but the trial court cannot require them to tell it how the judgment is defective. This is “doublethink” at its worst.

Relators did not seek mandamus relief directing that the trial court let them intervene and pursue their legal remedy by appeal. Had that been the relief they sought, then an extension of Stoner to presume the trial court would have denied the intervention would be less offensive. It would certainly be more in accord with the rationale for curing the procedural impasses of Stoner and Doctors Hospital.

Relators today obtain direct mandamus relief to set aside the judgment. That is the same relief they could have obtained by intervention and appeal. This mandamus proceeding has made relators, as a matter of law, intervenors in the trial court’s further proceedings and bound by any future judgment it may render. Relators cannot and should not obtain the benefit of setting aside a judgment on its merits without being bound by the new decision to cure their complaints. If the trial court errs again, they can then exercise their ordinary legal remedy by appeal. The plurality and the court should expressly declare that re-lators are now intervenors bound by any further trial court proceedings.

II

Because the plurality has granted rela-tors mandamus relief and addressed the merits of their claim, so will I. Again, this is not because I believe relators are entitled to relief after making a tactical decision to not protect their rights by intervention. I am compelled to respond because this is a case of first impression with legal issues of immense importance.

As fully developed in the plurality opinion, Louis Terrazas and others filed this original proceeding seeking a writ of mandamus to compel the Honorable Mario E. Ramirez, judge of the 332nd District Court of Hidalgo County, to vacate judgments in Quiroz v. Richards and Mena v. Richards which, among other things, challenged Senate Bill 31 (S.B. 31), the most recent reapportionment plan adopted by the legislature for the Texas Senate.2 Relators assert that Judge Ramirez had no authority to render the judgments in Quiroz and Mena, and thus these judgments are void. Relators also assert that the power to redistrict is vested exclusively in the State Legislature, the Legislative Redistricting Board (LRB) and the federal courts.3 I disagree.4

A

Relators argue that article III, section 28 of the Texas Constitution provides the sole *752constitutional authority to reapportion under all circumstances.

Article III, § 28 of the Texas Constitution provides in pertinent part:

The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such reapportionment, same shall be done by the Legislative Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor,, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary.

If the legislature fails to apportion the state into legislative districts, including a judicial declaration of invalidity, the constitutional duty to do so falls upon the LRB. Mauzy v. LRB, 471 S.W.2d 570, 574 (Tex.1971) (“An apportionment which is invalid, for whatever reason, is no apportionment; and the ... [LRB’s] duty to proceed with apportioning the state into representative districts accrued when the regular session adjourned ... without having enacted a valid apportionment statute.”). However, since the constitution requires that the LRB assemble within 90 days after adjournment of the regular session of the legislature and complete the reapportionment process within 60 days, the LRB’s jurisdiction has expired for the 1990 reapportionment. Tex. Const, art. Ill, § 28. Furthermore, the constitution provides no specific alternative when the legislature’s apportionment is held to be invalid after the jurisdiction of the LRB has expired. See Anderson, Texas Legislative Redistricting: Proposed Constitutional and Statutory Amendments for an Improved Process, 43 Sw.LJ. 719, 722 (1989). As a result, under these circumstances, there is a “lapse” in the constitution’s express grant of authority to reapportion. However, such “lapse” should not be considered an open invitation to the federal courts to come in and perform what is essentially a state responsibility.

Reapportionment is essentially a legislative function. See Kilgarlin v. Martin, 252 F.Supp. 404, 446 (S.D.Tex.1966), rev’d per curiam, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967); Terrazas v. Clements, 537 F.Supp. 514, 527 (N.D.Tex.), stay denied, 456 U.S. 902, 102 S.Ct. 1745, 72 L.Ed.2d 158 (1982), further proceedings, 581 F.Supp. 1319 (N.D.Tex.1983) and 581 F.Supp. 1329 (N.D.Tex.1984). There is no specific constitutional authorization for any department of government to exercise redistricting power under the circumstances in this case. When an existing apportionment plan is declared invalid or unconstitutional, it is appropriate for the legislature to have an adequate opportunity to adopt a substitute plan in a timely fashion. See Terrazas v. Clements, 537 F.Supp. at 527. In deference to the legislature and the constitution’s initial grant of authority to reapportion to the legislature, a special session of the legislature is the appropriate means to reapportion the senate.5 See Tex. Const. art. Ill, §§ 5, 40 (The governor is empowered to call the legislature into one or more special sessions, not to exceed 30 days each session). If for some reason, however, and after an adequate lapse of time in which the governor can make her decision known, *753the governor does not call the legislature into a special session; or if the legislature, when convened, is unable or unwilling to reapportion the legislature;6 judicial relief such as implementation of a substitute reapportionment plan is both appropriate and necessary.7

I agree with the plurality opinion that the Texas courts may order apportionment, and that such power ought to be used only after investigation and careful consideration of the many interests affected, after due deference to the Legislature to rectify its own statutes, and after due regard for the effect of the court’s order on the election process.

B

Relators also argue that the Attorney General did not have authority to agree to a substitute reapportionment plan by settling Quiroz and Mena and that Judge Ramirez had no authority to render the agreed judgments in Quiroz and Mena. I disagree.

Article IV, § 22 of the Texas Constitution empowers the Attorney General to “represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party ... and perform such other duties as may be required by law.” Tex. Const, art. IV, § 22. See also Tex.Gov’t Code, § 402.021. As the state’s chief legal officer, the Attorney General is responsible for representing the state in civil litigation and “must exercise judgment and discretion, which will not be controlled by other authorities.” Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 727 (1924); Bullock v. Texas Skating Ass’n, 583 S.W.2d 888, 894 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.). The Attorney General, in carrying out his constitutional responsibility to represent the interests of the state, has discretionary power to settle lawsuits on behalf of the state so long as he does not usurp the authority of a co-equal department of government. See Executive Condominiums, Inc. v. State, 764 S.W.2d 899, 902 (Tex.App.—Corpus Christi 1989, writ denied). As discussed above, there is no specific constitutional authorization for any department of government to exercise redistricting power under the circumstances present in this cause. Consequently, the Attorney General’s agreement to a substitute reapportionment plan by settling Quiroz and Mena on behalf of the state does not usurp the authority of a co-equal department of government.

Ill

Having concluded that neither agreed judgment is void, I agree with the plurality opinion that each judgment is voidable. Since redistricting affects all citizens in their fundamental right to vote and select who will represent them, the trial court has a duty to protect the public interest in approving an agreed judgment adopting an interim reapportionment plan. Those affected by the proposed judgment who are *754not parties are entitled to a reasonable opportunity to intervene or appear and be heard. I further agree that deference to the legislature’s basic plan and consideration of the proposed interim plan’s impact on the electoral process are factors the trial court should consider. Where I part company with the plurality opinion is its failure to distinguish between what must be satisfied to have a valid agreed plan, as opposed to what should or may be considered.

A

Reasonable opportunity to appear and be heard should be required. So should finding that the proposed plan adequately protects the diverse public interests affected. The record should reflect an evidentiary basis for the trial court’s decision. Deference to the legislature’s basic plan should not excuse any unconstitutional aspects of the plan. Otherwise, the court’s power to declare the legislature’s plan unconstitutional is thwarted. It is only the “state policy” reflected in the districts drawn by the legislature that do “not detract from the requirements of the” constitution, to which the courts should show deference. White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973). How to weigh the factors affecting the electoral process are not adequately addressed by the plurality opinion. We should not encourage even temporary use of an unconstitutional plan.

Moreover, by not indicating the extent of trial court discretion in weighing the factors, the plurality opinion leaves the trial court without clear guidance on what it must do to render a judgment not subject to attack. I applaud the plurality’s effort in setting forth the factors to be addressed. I am concerned that the trial court, after addressing these factors, may once again be held to have rendered a voidable judgment because it did not weigh the factors correctly. I further believe the court should declare that there are no other factors which must be addressed.

B

If all the defects making the trial court’s approval of the agreed judgment had been urged by a proper party, intervenor or original party, through the ordinary appellate process, I would agree that the court should set aside the judgment. Relators here made no attempt to intervene. Rela-tors purposefully chose to not present any complaints to the trial court and not afford it the opportunity to correct any error. They made none of the arguments to the trial court found so persuasive by the plurality opinion. In fact, before this court, they argued the judgments were void, not that they were voidable. The plurality reaches unreasonably in construing rela-tors’ amorphous arguments to support its conclusion that the judgment was voidable. That is not, and has not been, relators’ position.

IV

Conclusion

The court should have denied mandamus relief because relators purposefully chose to not seek their legal remedy of intervention and appeal. Since mandamus relief does not lie, this court should not have reached the merits of the trial court judgments. On reaching the merits, the court should have concluded the judgments are not void. The trial court, if it conducts further proceedings and approves an agreed interim redistricting plan, should protect the public interest by considering the factors identified in the plurality opinion. If the court fails to do so, its judgment is voidable. The plurality opinion, however, may serve to confuse the trial court because it does not clearly state the weight to be given competing interests. The court errs in issuing the writ of mandamus in this proceeding, and compounds its error through opinions the trial court may well have difficulty following.

GAMMAGE, J., joins in this dissenting opinion.

. The plurality opinion cites Stewart v. McCain, 575 S.W.2d 509 (Tex.1978), and Hennessy v. Marshall, 682 S.W.2d 340 (Tex.App.—Dallas 1984, writ refd n.r.e.), for the proposition that a relator need not be a party to the underlying litigation to seek mandamus relief. That proposition is correct, but it has nothing to do with using mandamus as a substitute for appeal. In Stewart the non-party relator sought mandamus relief from a discovery order against him, not a judicial declaration that the judgment on the merits be set aside. Likewise, Hennessy involved non-party relators who filed a mandamus proceeding in the trial court to quash discovery subpoenas issued against them.

. Although Quiroz and Mena were both filed in Hildalgo County, none of the relators are citizens of Hildalgo County. Louis Terrazas is a citizen of Bexar County, Ernest Angelo, Jr. is a citizen of Midland County, Tom Craddick is a citizen of Midland County, Bob Estrada is a citizen of Dallas County, and Sim Stokes, III is a citizen of Dallas County. To discourage forum shopping, I urge the legislature to enact legislation providing that exclusive or mandatory venue of an action or proceeding challenging redistricting shall be brought in Travis County. See generally Tex.Civ.Prac. & Rem.Code §§ 15.011-15.017; Tex.Ins.Code art. 1.04(f), art. 21.28, §§ 2(i), 4(h), art. 21.49, § 9; Tex.Rev.Civ.Stat. art. 6701h, § 2(b).

. The federal courts did not participate in reapportionment disputes until 1962. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). It defies reality to assume that the framers of our constitution anticipated that the federal courts would inject themselves into the reapportionment process. The current version of Article III, § 28 "was adopted a good many years before the breakthrough in Baker v. Carr....” Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, Art. Ill, § 28, comparative analysis at 158 (1977).

. I find it ironic that the relators, while agreeing that the legislative reapportionment is unconstitutional, would seek the assistance of the federal courts to correct the dilemma while denying the ability of the state courts to protect the interests of the people under the state constitution.

. See Bickerstaff, Reapportionment by State Legislatures: A Guide for the 1980's, 34 Sw.L.J. 607, 661 (1980); Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, Art. Ill, § 28, author’s comment at 159 (1977). Reapportionment has been performed in special sessions of the legislature in 1911, 1921 and 1971. Bickerstaff at 623 n. 129, 628.

. Among other things, the agreed judgments in Quiroz and Mena stated that the "state defendants” were permanently enjoined to conduct all primary and general elections for the Texas Senate under the substitute redistricting plan. However, the agreed judgments also stated that the permanent injunction to conduct all primary and general elections for the Texas Senate under the substitute redistricting plan "is dissolved effective immediately upon enactment under Texas law of a districting plan for Texas Senate elections and its preclearance pursuant to the provisions of Section 5 of the Voting Rights Act of 1965....” Obviously the trial court and parties in Quiroz and Mena appreciated the desirability of a "legislative remedy” in this situation. In addition, the above language in the agreed judgments would be a substantial incentive for the governor to call the legislature into a special session and for the legislature to enact a new redistricting plan for the Texas Senate.

. In addition to granting a declaratory judgment and partial summary judgment declaring the redistricting plans for the Texas Senate (S.B. 31) unconstitutional and issuing a temporary injunction, on August 22, 1991, the trial court directed the "state defendants” to submit "a method to adequately adjust for the 1990 census population undercount, to be used in the apportionment of Texas ... Senate ... districts and election precincts ... on or before September 30, 1991.” Subsequently, the Attorney General filed a direct appeal to this court. We granted a requested stay of the proceedings on September 23, 1991, and noted our probable jurisdiction on October 9, 1991.