Petition for Writ of Certiorari — Perales v. Supreme Court of Texas

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98 386 AUS 241%

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1998

IN THE

ROMAN PERALES,

Petitioner,

SUPREME COURT OF TEXAS, Chief Justice Thomas R.

Phillips; Justices Raul A. Gonzalez; Nathan I Hecht; John

Cornyn; Craig Enoch; Rose Spector; Priscilla R. Owen; James

A Baker; Greg Abbott; in their individual and official

capacities; DAN MORALES, Attorney General of Texas,

individually and in his official capacity; Board of Law

Examiners, Rachae! Martin, Executive Director of Texas Board

of Law Examiners; Warlick Carr, Chairman, Texas Board of

Law Examiners; individually and in their official capacities,

Respondents.

On Writ of Certiorari and/or Mandamus To The United States

Court of Appeals for The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

ROMAN PERALES

3505 Boca Chica

Suite 162

P. O. Box 5566

Brownsville, Texas 78523

(956) 541-3848

Fax (956) 541-3572

Pro Se

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QUESTIONS PRESENTED

Whether mandamus should issue to compel the lower

courts’ Judges and Magistrate Judge to exercise their authority

when they had a duty to do so to take as true the said

allegations in the anti-trust complaint and to assume

jurisdiction to proceed with the merits of the case.

Whether the lower courts’ Judges as a matter of U.S.

Supreme Court decisional law failed to exercise their authority

when they had the duty to do so to take as true the allegations

of the complaint that alleged that the rule governing admissions

and its enforcement, involving the grading formula for the bar

exam made by the Board of Law Examiners but not approved

by the Supreme Court of Texas, are in violation of the

Sherman Anti-Trust Act by illegally reducing the number of

attorneys in the state.

Whether the lower courts’ failure as a matter of law to

take as true the said allegations illegally denied the Petitioner

bar applicant’s statutory rights and rights of access to courts,

due process and equal protection under the First and Fifth

Amendents of the United States Constitution.

Whether the lower courts’ failure to take as true the

said allegations usurped the rule of law that requires that the

allegations must be taken as true; and usurped the statutory law

that authorizes person injured by violation of anti-trust laws to

bring complaint to protect the public.

LIST OF THE PARTIES

1. Petitioner herein, ROMAN PERALES, is a bar applicant to

the State Bar of Texas; Plaintiff in the United States District

Court for the Southern District of Texas; Appellant in the

United States Court of Appeals for the Fifth Circuit.

2. Respondents are the panel of Circuit Judges of the Fifth

Circuit Court of Appeals included Honorable Johnson, Jones

and DeMoss, Circuit Judges.

3. Respondent is the District Judge, the Honorable Filemon

Vela.

4. Respondent is the Magistrate Judge, Honorable John

Black.

5. Respondents/Appellees/Defendants: SUPREME COURT

OF TEXAS, Chief Justice Thomas R. Phillips; Justices Raul

A. Gonzalez; Nathan I Hecht; John Cornyn; Craig Enoch;

Rose Spector; Priscil!a R. Owen; James A Baker; Greg Abbott;

in their individual and official capacities; DAN MORALES,

Attorney General of Texas, individually and in his official

capacity; Board of Law Examiners, Rachael Martin, Executive

Director of Texas Board of Law Examiners; Warlick Carr,

Chairman, Texas Board of Law Examiners; individually and in

their official capacities.

Respondents/Appellees’/Defendants’ Counsel: Dan Morales,

Jorge Vega, Laquita A. Hamilton, Toni Hunter, Allison

Eccles, James Pinson, and Ida Gonzalez.

P.O. Box 12548, Capitol Station

Austin, Texas 78711

By:

Roman Perales

_— -_ oo

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS DELIVERED BY THE

COURTS BELOW

GROUNDS UPON WHICH THE

JURISDICTION OF THE SUPREME

COURT IS INVOKED

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

IN THIS CASE

STATEMENT OF THE CASE

REASONS FOR GRANTING PETITION

FOR WRIT OF CERTIORARI AND/OR

FOR WRIT OF MANDAMUS

ARGUMENT

CONCLUSION

VERIFICATION

AFFIDAVIT

APPENDIX A

Plaintiff’ s First Amended Complaint,

filed on April 8, 1997

APPENDIX B

Magistrate Judge’s minute entry

ey,

8-16

16-17

19-20

1-13

TABLE OF CONTENTS con’t

APPENDIX C

Defendant’s Motion to Dismiss,

filed on April 15, 1997 15-18

APPENDIX D

Magistrate’s Judge’s Report and

Recommendation, April 28, 1997 19-21

APPENDIX E

Order of the District Court of the

Southern District of Texas dismissing

the complaint for want of jurisdiction

and approving the report and recommedation

of the magistrate, May 21, 1997 22

APPENDIX F

Order of the District Court denying

motion for rehearing, July 30, 1997 23

APPENDIX G

Order of the Fifth Circuit Court of Appeals

affirming District Court, March 27, 1998 24-25

APPENDIX H

Order of the Fifth Circuit denying petition

for rehearing and suggestion en banc,

May 26, 1998 26

APPENIX I

Statutes

Amendments of the United States Constitution 27-28

TABLE OF AUTHORITIES

Bankers Life & Cas. Co., v. Holland,

346 U.S. 379, 384, 74 S.Ct. 145,

98 L.Ed. 106 7,8

Cedars-Sinai Med. Ctr. v. Watkins,

11 F.3d 1573, 1583 (Fed. Cir. 1993) 9

Cummings v. U.S., 648 F.2d 289

(C.A. Tex. 1981) 10

Ex parte Fahey, 332 U.S. 258, 259,

67 S.Ct. 1558, 1559, 91 L.Ed. 2041 8

Feldman v. Gardner,

661 F.2d 1295 cert denied, -

Feldman v. District of Columbia

Court of Appeals, 458 U.S. 1106,

102 S.Ct. 3483, 73 L.Ed. 2d 1366 (1982)

Hickey v. District of

Columbia Court of Appeals, 458 U.S. 1106,

102 S.Ct. 3483, 73 L.Ed.2d 1366 (1982) 11,12

Foster v. City of Lake Jackson,

28 F.3d 425 (Sth Cir. 1994) 13

Garcia v. Copenhaver,

Bell & Associates, M.D.’s,

104 F.3d 1256(11th Cir. 1997) 9

Goldfarb v.Virginia State Bar,

421 U.S. 773, 95 S. Ct. 2004,

44 L.Ed. 2d 572 (1975), 11,13

Hoover v. Ronwin,

104 S.Ct. 1989 (1984) 11

. In re School Asbestos Litigation,

977 F.2d 764 8

In Re Southwestern Bell Telephone Co.,

535F.2d 859 99176) 13

Kinnear-Weed Corp. v. Humble Oil & Refining Co.,

214 F.2d 801 14

McClellan v. Carland, 217 U.S. 268,

30 S.Ct. 501, 503, 54 L.Ed. 762 7

Mortensen v. First Federal Savings &

Loan Ass’ n, 549 F2d 884 (CA3 1977) 8

Miller v. Stanmore, 636 F.2d 986

(C.A. Tex. 1981) 10

Neitzke v. Williams, 490 US 319,

104 L.Ed 2d 338, 109 S.Ct. 1827 (1989) 8

Ryland v. Shapiro,

708 F.2d 967 (Sth Cir. 1983) 13

Scheuer v. Rhodes, 416 U.S. 232, 236,

94 S.Ct. 1683, 1686 (1974) G

Spector v. L Q Motor Inns, Inc.,

517 F.2d 278, rehearing denied

521 F.2d 815, certiorari denied

96 S.Ct. 786, 423 U.S. 1055,

46 L.Ed. 2d 644 10

Will v. United States, 389 U.S. 90, 95,

88 S.Ct. 269, 273, 19 L.Ed. 2d 305 8

Woodard v. Los Fresnos

Independent School Dist.,

732 F.2d 1243, (C.A. Tex. 1984) 10

STATUTES

28 U.S.C. §1254 (1) 2,3

28 U.S.C. §1651(a) 2,3

28 U.S.C. §1337 3

15 U.S.C. §1 seq 7,9,12,13

First and Fifth Amendments

of the U.S. Constitution 15

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

ROMAN PERALES,

Petitioner,

SUPREME COURT OF TEXAS,

Chief Justice Thomas R. Phillips, et al

Respondents

On Writ of Certiorari and/or Mandamus To The United States

Court of Appeals for The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

AND/OR MANDAMUS

To the Honorable Chief Justice of the United States

Supreme Court and the Associate Justices of the Supreme

Court:

Roman Perales, the Petitioner, prays that writ of

certiorari and/or mandamus issue to review the opinion and

judgment of the United States Court of Appeals for the Fifth

Circuit that was rendered on March 27, 1998, which rehearing

and suggestion en banc was denied on May 26, 1998.

OFFICIAL AND UNOFFICIAL REPORTS

OF THE OPINIONS AND ORDERS

ENTERED IN THE CASE

BY THE LOWER COURTS

Order of the Fifth Circuit Court of Appeals denying

petition for rehearing and suggestion en banc, May 26, 1998,

is reported and is reproduced in Appendix H. Order and

Opinion of the Fifth Circuit Court of Appeals on appeal

affirming the judgment of the district court, March 27, 1998 is

not reported but is reproduced in Appendix G. Order of the

Fifth Circuit Court of Appeals denying the Motion for ~~

Injunction, November 28, 1997 is not reported [R.]. Order of

the Fifth Circuit Court of Appeals denying Motion for

Rehearing of Petition for Writ of Mandamus, November 12,

1997 is not reported [R. ]. Order of the Fifth Circuit Court of

Appeals denying Petition for Writ of Mandamus, October 28,

1997 is not reported [R. ]. Order of the District Court for the

Southern District of Texas denying motion for rehearing, July

30, 1997 is not reported but is reproduced in Appendix F [R ].

Order of the District Court for the Southern District of Texas

dismissing the complaint for want of jurisdiction and adopting

the report and recommendation of the Magistrate Judge, May

21, 1997 is not reported but is reproduced in Appendix E [R.].

Magistrate Judge’s Report and Recommendation, April 28,

1997 is not reported but is reproduced in Appendix D [R. ].

Magistrate Judge’s Minute entry on request for t.r.o. and/or

temporary injunction, recommending denial of t.r.o. and/or

temporary injunction, December 11, 1996 is not reported but is

reproduced in Appendix B [R. }.

GROUNDS UPON WHICH THE JURISDICTION

OF THE SUPREME COURT IS INVOKED

The opinion and final judgment of the Court of Appeals

sought to be reviewed was entered on March 27, 1998 and the

Court of Appeals denied the motion for rehearing and rehearing

en banc on May 26, 1998. The jurisdiction of this court is

invoked pursuant to 28 U.S.C. §1254 (1). This petition for

writ of certiorari and/or mandamus is filed within

a ae oi sa gS teynaterin ae Ab WE NLY RCS sl ae Gh aoe

90 days of the entry of judgment by the Court of Appeals

denying the motion for rehearing.

Jurisdiction to grant the writ of mandamus to the

Justices of the Court of Appeals, Honorable Johnson, Jones

and DeMoss, Circuit Judges, and the District Court Judge,

Honorable Filimon, and Magistrate Judge, Honorable John

Black is conferred on this Court by 28 U.S.C. §1651(a).

This Court has certiorari jurisdiction over the complaint, the

final judgment of the District Court dismissing the anti-trust

complaint and over the judgment of the court of appeals,

which affirmed the dismissal. The writ is in aid of the Court’s

certiorari jurisdiction to review whether the regulation for the

admission to the practice of law and its regulation involving

the grading formula not approved by the State Supreme Court

violates the Sherman Anti-Trust Act. The exceptional

circumstances of the lower courts’ failure 2s a matter of law to

exercise its authority when it had the duty to do so to take as

true the allegations of the complaint as plead, and construe

these allegations in the light most favorably, precludes

certiorari jurisdiction to review the grading formula and

warrant the exercise of the Court’s discretionary powers.

Adequate relief cannot be obtained in any other form or from

any other court.

The basis of federal jurisdiction in the district court is

pursuant to 28 U.S.C. $1337.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED IN THIS CASE

U.S. Supreme Court Jurisdiction

Certiorari: 28 U.S.C. $1254 (1)

Mandamus: 28 U.S.C. §1651(a)

U.S. Supreme Court Rules

Certiorari: Rule 10 et seq, Jurisdiction on Writ of Certiorari

Mandamus: Rule 20

Anti-Trust Jurisdiction of District Court, 28 U.S.C. $1337

Sherman Anti-Trust Act, 15 U.S.C. §1 seq

Rule 12 (b) (1) of Rules of Civil Procedure

First and Fifth Amendments of the United States Constitution

STATEMENT OF THE CASE

On December 5, 1996, Roman Perales, Petitioner and

an applicant for the State Bar of Texas filed a complaint under

the Sherman Antitrust Act, 15 U.S.C., §1 seq, in the United

States District Court for the Southern District of Texas,

Brownsville Division. The Petitioner sued the Supreme Court

of Texas, its Justices individually and in their official capacity,

the Board of Law Examiners of the Supreme Court of Texas,

its Executive Director and Chairman, individually and in their

official capacity and the Attorney General, individually and in

= official capacity and the Office of the Attorney General of

exas.

The complaint alleged that based on the grading

formula for the bar examination, the Petitioner did not pass the

1991 bar exam by one-fifth of a point and therefore was denied

admission to the bar. The complaint further alleged that the

regulation for the admission to the practice of law involving the

grading formula for the bar exam and its enforcement violates

the Sherman Act by illegally reducing the number of attorneys

in the state. The complaint alleged that the grading formula

was made by the Board of Law Examiners but was not

approved by the Supreme Court of Texas. Petitioner sued for

temporary restraining order and/or temporary injunction and

permanent injunction to enjoin the enforcement of the grading

formula and for immediate admission to the State Bar. [R.

Original Complaint and Application for T.R.O. and/or

Temporary Injunction].

A hearing was held before the Magistrate Judge on

December 11, 1996 on the request for temporary restraining

order and/or temporary injunction. The Magistrate Judge did

not file a written report and recommendation to the district

court but orally recommended to deny the motion. [ R.

Appendix B, Minute Entry, December 11, 1996).

On April 8, 1997, the Petitioner amended his

complaint. Along with seeking to enjoin the grading formula

and immediate admission to the Bar, the Petitioner also sought

treble damages. [R.; Appendix A, First Amended Complaint;

and Amended Application for temporary restraining order and

temporary injunction].

Respondents/Defendants on April 15, 1997 filed a

motion to dismiss for want of jurisdiction. They alleged in

their motion, that the complaint in “actuality” alleged only prior

— 9 proceedings. [R., Appendix C, Defendants’

otion

The Magistrate Judge John Black’s report and

recommendation was filed on April 28, 1997. [Record,

Appendix D, Report and Recommendation]. The report and

recommendation which was approved by the District Court

Judge Filemon Vela on May 21, 1997, stated in pertinent part,

that as to the allegations in the Petitioner’s pleadings, that the

complaint alleged:

Perales claims that the defendants violated the Sherman

Anti-Trust Act 15 U.S.C. §1 seq. The factual

predicate of this claim is that under Texas law the

function of the Board of Bar Examiners is to advise the

Texas Supreme Court which has the authority to set

standards for the Bar Examination. According to

Perales and not denied by the State Defendants, the

Board of Bar Examiners did not get approval from the

Supreme Court for the formula used in 1991 to

determine whether or not someone had passed the

Exam.

The report and recommendation concluded that the

District Court has no jurisdiction of the complaint because as

the Respondents/Defendants alleged that the complaint alleged

and construed, “in reality it is a complaint about the way he

was treated in the Texas Judicial system.” The Magistrate

Judge recommended and the district court held that the

complaint alleged and construed it only, as an attack of a state

court judgment and dismissed the complaint accordingly. [R.

Appendix E, Order of Dismissal, filed on May 21, 1997].

Objections to the Report and Recommendation were

timely filed. [Record ]. On a motion for rehearin + hey the

District Court, it denied the motion on July 30, 1997. [R.

Appendix F, Order Denying Rehearing].

The Petition for writ of mandamus and/or writ of

prohibition was filed in the Court of Appeals on October 10,

1997. The Court denied the petition on October 28, 1997.

The Court of Appeals also denied the motion for rehearing on

November 14, 1997. Motion for injunction pending appeal

was also filed on November 14, 1997. On December 1, 1997,

the Court of Appeals denied the motion for injunction.

On appeal, the Court of Appeals on March 27, 1998,

panel of Respondent Circuit Judges, Johnson, Jones, and

DeMoss, affirmed the District Court. [R., Appendix G,

Opinion, filed on March 27, 1998]. The Court of Appeals

stated that Petitioner alleged “[iJn his complaint, Perales argued

that the grading formula used in the 1991 Texas Bar

Examination violated the Sherman Act.”

The Court of Appeals held that the complaint alleged

and construed it only, as

[s}tripped to its essentials, Perales’s complaint is an attack

on the judgment of the state court. Therefore, after careful

review of the record and the controlling authorities, this

court holds that the district court did not err in dismissing

Perales’s complaint for lack of subject matter jurisdiction.”

On May 26, 1998, the Court of Appeals denied the

petition for rehearing and suggestion for rehearing en banc.

[R., Appendix H, Order, filed on May 26, 1998.

SUMMARY OF ARGUMENT

Petitioner contends that the Respondents/Defendants’

motion to dismiss, the Magistrate Judge’s minute entry, report

and recommendation and the lower courts’ orders, opinion,

judgment and mandates are in disregard as a matter of law of

the plain mandate of the U.S. Supreme Court which holds that

the allegations of the complaint must be taken as true and that

these allegations must be construed in the light most favorably

to the plaintiff in passing on a motion to dismiss. The

defendants and the lower courts did not take as true and did

not construe in the light most favorable, the allegations in the

complaint as pleaded that the regulation for the admission to

the bar and its enforcement, involving the grading formula for

the bar exam which was not approved by the Supreme Court

of Texas violated the Sherman Anti-Trust Act.

Such dismissal for want of jurisdiction which the

lower courts failed to exercise its authority when it had the

duty to take as true the said allegations in the complaint,

illegally deprived the petitioner’s rights of access to courts,

due process and equal protection under the First and Fifth

Amendments of the United States Constitution.

The unauthorized orders usurped the power of the rule

that the allegations in the complaint must be taken as true; and

usurped the Sherman Anti-Trust statute which authorizes a

private person a right to sue to protect the rights of the public

from monopolies and restraint of interstate commerce.

REASONS FOR GRANTING THE WRITS

Certiorari should be granted because the United States

Court of Appeals has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of this

Court’s supervisory power. The United States court of

appeals has decided an important federal question in a way that

conflicts with relevant decisions of this court.

This case involves a manifest injustice in the failure as

a matter of law to take the allegations in the complaint as true.

The law in the area clearly mandates that the lower courts must

take as true the allegations in the complaint that alleged that the

rule governing admissions and its enforcement, which

involved the grading formula for the bar exam that was not

approved by the State Supreme Court violates the Sherman

Anti-Trust Act. Petitioner seeks a summary reversal. The

Petitioner urges this Court to summarily reverse.

Mandamus should be granted to compel the lower

courts’ Judges to exercise their authority when they had the

duty to do so to take as true the allegations of the complaint

and to construe them in the light most favorable to the

Petitioner.

ARGUMENT

MANDAMUS SHOULD ISSUE

The Petitioner alleges in the petition for writ of

certiorari and/or mandamus that the lower courts’ Judges failed

to exercise their authority when they had a duty to do so to take

as true the said allegations of the complaint and construe them

in the light most favorable to the Petitioner. Under the law, a

writ of mandamus involves directing the restoration of the

complainant to rights or privileges of which he has been

illegally deprived. Mandamus is one that is traditionally issued

in response to abuses of judicial power. Thus, where a district

judge refuses to take some action he is required to take or takes

some action he is not empowered to take, mandamus will lie.

Bankers Life & Cas. Co., v. Holland, 346 U.S. 379, 384, 74

S.Ct. 145, 98 L.Ed. 106. The Supreme Court may issue a

writ of mandamus in aid of the appellate jurisdiction that might

otherwise be defeated by the unauthorized action of the court

below. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501,

503, 54 L.Ed. 762.

This case is extraordinary and the remedy of

mandamus is a drastic one, to be invoked only in extraordinary

situations. Will v. United States, 389 U.S. 90, 95, 88 S.Ct.

269, 273, 19 L.Ed. 2d 305; Banker’s Life & Cas. Co. v.

Holland, 346 U.s. 379, 382-385, 74 S.Ct. 145, 147-149,

98L.Ed. 106; Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct.

1558, 1559, 91 L.Ed. 2041. The writ has traditionally been

used in the federal courts only “to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to

exercise its authority when it is its duty to do so.” Will v.

United States, 389 U.S., at 95, 88 S.Ct., at 273, quoting

Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct.

938, 941, 87 L.Ed. 1185.

The district court’s failure to consider the merits of a

summary judgment motion is a failure to exercise its authority

when it has the duty to do so. In re School Asbestos

Litigation, 977 F.2d 764, as amended. In the case at bar, the

lower courts’ failure as a matter of law to take as true the said

allegations and contrue them in the light most favorable is the

failure to exercise its authority when it has the duty to do so.

DUTIES OF LOWER COURTS

TO TAKE ALLEGATIONS AS TRUE

The Petitioner’s claim under the Sherman Act has been

dismissed for want of jurisdictiox, pursuant to Rule 12(b)(1)

and the correct procedure is to treat a dismissal as having been

on the jurisdictional ground for the obvious reason that if the

court lacks jurisdiction to hear the case, it lacks jurisdiction to

rule on the merits. Mortensen v. First Federal Savings &

Loan Ass’ n, 549 F2d 884 (CA3 1977).

The Respondents/Judges are not authorized by law to

dismiss the complaint based on their disbelief of the

complaint’s factual allegations. The allegations of the

Respondents/Defendants and the holding of the lower courts

that the complaint is only an attack on a prior judgment of the

state court constitutes the Respondents Judges’ disbelief of the

complaint’s factual allegations that the grading formula violates

the Sherman Act. Under the law in Neitzke v. Williams, 490

_ US 319, 104 L.Ed 2d 338, 109 S.Ct. 1827 (1989), the

assumption [is] that the factual allegations in the

complaint are true” on a motion to dismiss. What

Rule 12(b)(6) does not countenance are dismissals

based on the judge’s disbelief of a complaint’s factual

allegations. District court judges looking to dismiss

claims on such grounds must look elsewhere for legal

support.

Facial attacks on the complaint,

require[ ] the court merely to look and see if

[{the}plaintiff has sufficiently alleged a basis of

subject matter jurisdiction and the allegations in his

complaint are taken as true for purposes of the

motion.

Garcia v. Copenhaver, Bell & Associates, M.D.’s, 104 F.3d

1256(11th Cir. 1997), citing Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir. 1990) (quoting Menchaca v. Chrysler

Credit Copr., 613 F.2d 507, 511 (Sth Cir. 1980), cert. denied,

449 U.s. 953, 101 S.Ct. 358, 66 L.Ed. 2d 217 (1980) (citing

Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,

891 (3d Cir. 1977).

The district court will accept all material allegations of

the complaint as true and construe them in the light most

favorable to the non-moving party. Scheuer v. Rhodes, 416

U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974); Cedars-Sinai

Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993).

The U.S. Supreme Court held in Scheuer v. Rhodes, that:

When a federal court reviews the sufficiency of a

complaint . . .[t]he issue is not whether a plaintiff

will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.

Indeed it may appear on the face of the pleadings that

a recovery is very remote and unlikely but that is not

the test . . . [I]n passing on a motion to dismiss,

whether on the ground of lack of jurisdiction over the

subject matter or for failure to state a cause of action,

the allegations of the complaint should be construed

favorably to the pleader.

jurisdiction or for failure to state a claim, the appellate court

F.2d 815, certiorari denied 96 S.Ct. 786, 423 U.S. 1055, 46

esr 2d 644. Cummings v. U.S., 648 F.2d 289. (C.A. Tex.

1981).

FAILURE AS A MATTER OF

U.S. SUPREME COURT DECISIONAL LAW

TO EXERCISE AUTHORITY

WHEN IT HAD THE DUTY TO DO So

The lower courts and the Respondents/Defendants,

failed to take as true the allegations of the complaint as

for the bar examination. It alle that the said regulation was

not approved by the Supreme and violates the Sherman

the allegations of the complaint and cast a less favorable light

rs: the anti-trust complaint and hence, caused the complaint to

ail.

courts to “strip” as true the said allegations and construe the

wording of the complaint differently.

Under the law, the courts and the defendants must take

as true the said allegations. They are not authorized by law to

substitute their own allegations or version of the complaint, in

place of the said allegations for which the plaintiff alleged.

Their own allegations, language or version significantly

changed the results. This court should rule that by law, that

the allegations, wording or version of the complaint as stated

by the defendants and held by the lower courts failed to take as

true the said allegations in the complaint.

In light of the Supreme Court’s and the Circuit Court

of Appeals’ cases of Hoover v. Ronwin, 104 S.Ct. 1989

(1984); Feldman v. Gardner, 661 F.2d 1295 cert denied,

Feldman v. District of Columbia Court of Appeals, 458 U.S.

1106, 102 S.Ct. 3483, 73 L.Ed. 2d 1366 (1982); Hickey v.

District of Columbia Court of Appeals, 458 U.S. 1106, 102

S.Ct. 3483, 73 L.Ed.2d 1366 (1982); and Goldfarb v.Virginia

State Bar, 421 U.S. 773, 95 S. Ct. 2004, 44 L.Ed. 2d 572

(1975), the lower courts failed as a matter of law to exercise

their authority to take the said allegations as true and construe

them in the light most favorable to the complainant.

The U.S. Supreme Court has assumed the allegations

as true in a complaint that alleged that a rule or regulation for

the admission or for the practice of law that was not approved

by the legislature or the supreme court of the state is in

violation of the Sherman Act and it construed these allegations

in the light most favorably.

The Magistrate Judge’s report and recommendation

stated that Hoover v. Ronwin, 466 U.S. 558 (1983) involved

a fact situation virtually identical to Perales, in that both alleged

that the regulation for the admission to the practice of law

involving the grading formula violates the Sherman Anti-trust

Act. The report additionally stated that,

Perales attempts to distinguish Hoover from his case by

arguing that the Texas Board of Bar Examiners did not

submit the grading formula to the Texas Supreme Court in

1991. He argues that this administrative lapse permits the

application of the Sherman Act to his claims.

However, the lower courts held that Petitioner’s

complaint should be construed as one that only attacks a prior

state court judgment.

In Hoover, the bar applicant alleged in the complaint

that the grading formula was in violation of the Sherman Act.

The facts in the Hoover v. Ronwin case also stated that the bar

applicant had been engaged in litigation in the state court. On a

motion to dismiss, the court took as true the allegations of the

complaint, that alleged that the grading formula violated the

Sherman Act and construed these allegations in the light most

favorable. Moreover, the U.S. Supreme Court assumed

jurisdiction of these allegations that were taken as true and that

were construed in the light most favorably; and the Supreme

Court reviewed the merits of the claim.

In Feldman v. Gardner, 661 F.2d 1295 cert denied,

Feldman v. District of Columbia Court of Appeals, 458 U.S.

1106, 102 S.Ct. 3483, 73 L.Ed. 2d 1366 (1982): Hickey v.

District of Columbia Court of Appeals, 458 U.S. 1106, 102

S.Ct. 3483, 73 L.Ed.2d 1366 (1982), which also resulted in

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983), the Court of Appeals on review of the motion to

dismiss the anti-trust claim for want of jurisdiction, took as

true the allegations in the complaint that the regulation for

admission to the bar violated the Sherman Anti-Trust Act. In

footnote 9 and 33, the Court of Appeals acknowledged that it

had taken as true all the facts well-pleaded in the complaints,

including the said allegations in complaints. The Court of

Appeals said that because the case is before it on appeal from

the grant of a motion to dismiss, “ we take as true all well-

pleaded allegations of the complaint.” The court assumed

jurisdiction of these allegations that alleged the regulation for

the admission violated the Sherman Anti-trust Act and ruled on

the merits of the claim.

In the Feldman v. Gardner case, the district court

concluded as the Respondent/Defendants and the Respondent

lower courts’ Judges herein, that bar applicant sought

essentially a review of a judicial order of the state court. The

Court of Appeals on footnote 61, held that the district court

dismissed bar applicant’s anti-trust claim on a different

ground--that it had been resolved by the District of Columbia

Court of Appeals and thus could be reviewed only by the

Supreme Court. The Court of Appeals held that it believed

this rationale to be erroneous, both because there was no

adjudication on the merits of that claim by the Court of Appeals

and because the District Court has exclusive original

jurisdiction over federal anti-trust actions. The Court of

appeals affirmed the dismissal on the analysis of the merits of

the case and took as true the allegations that the regulation for

admission in question violates the Sherman Anti-Trust Act and

construed them in the light most favorably; and assumed

jurisdiction of these allegations for purposes of a motion to

dismiss for failure to state any cognizable cause of action. The

U.S. Supreme Court denied certiorari to review the decision

and the grounds of the Court of Appeals on the dismissal of the

antitrust claim.

The facts in Goldfarb v. Virginia State Bar, 421 U.S.

773, 790, 95 S.Ct. 2004, 2014, 44 L.Ed. 2d 572 (1975), are

more analogous to the facts in the case at bar. Goldfarb

involved procedures governing the practice of law that were

not approved by the State Supreme Court or the State

legislature. In that case, the plaintiffs sued the Virginia State

Bar and the County Bar Association. The county bar

association published the challenged rule and the Virginia State

Bar enforced the rule. In that case, the United States Supreme

Court granted certiorari to decide whether the challenged

regulation for the practice of law not approved by the Supreme

rage violated §1 of the Sherman Act as amended, 15 U.S.C.

Chief Justice Burger stated for the U.S. Supreme Court

in that case, that

{h]ere we need not inquire further into the state

action question because it cannot fairly be said that

the State [ ] through its Supreme Court Rules

required the anticompetitive activities of

[defendants].

In Goldfarb v.Virginia State Bar, the Court for

purposes of jurisdiction, assumed the allegations as true that

the challenged regulation for the practice of law that was not

approved by the state supreme court is in violation of the

Sherman Anti-Trust Act. The U.S. Supreme Court assumed

that the district court had jurisdiction of the said allegations of

the complaint. The complaint alleged that the challenged

regulation not approved by the Supreme Court violated the

Sherman Act and the Court proceeded to decide on the merits.

On the merits, the U.S. Supreme Court held that any

regulation and its enforcement, for the practice of law not

approved by the Supreme Court are a violation of the anti-trust

laws. Under this case, not only is the petitioner herein entitled

to have the said allegations of the complaint taken as true and

construed most favorably, but is entitled to have the district

court assumed jurisdiction of these allegations and is entitled to

a favorable ruling on the merits of the anti-trust claim that

alleged that the grading formula that was not approved by the

Supreme Court violates the Sherman Act.

The failure as a matter of law to take the allegations as

true precluded the United States Supreme Court from ultimate

review of this case on certiorari to decide whether the

challenged regulation for the admissions to the practice of law

not approved by the Supreme Court violated §1 of the

Sherman Act as amended, 15 U.S.C. §1.

FAILURE TO TAKE AS TRUE THE

ALLEGATIONS VIOLATED STATUTORY AND

CONSTITUTIONAL RIGHTS “

The failure to take the said allegations as true and

construe them as required by law on a motion to dismiss,

illegally denied the right to have the allegations in the

complaint taken as true, and illegally denied the statutory rights

and the right of access to the courts, the right of due process

and equal protection under the First and Fifth Amendments of

the U.S. Constitution. see Jn Re Southwestern Bell

Telephone Co., 535F.2d 859 99176); Ryland v. Shapiro, 708

F.2d 967 (Sth Cir. 1983); Foster v. City of Lake Jackson, 28

F.3d 425 (Sth Cir. 1994).

USURPATION OF POWERS

The main purpose of the statute authorizing a person

injured by the violation of the ant:-trust laws to recover treble

damages is to protect the public from monopolies and restraint

of trade, and the private right of action for treble damages is

incidental and subordinate to that main purpose. The grant of a

claim for treble damages to persons injured by violation of anti-

trust laws is for the purpose of multiplying the agencies which

will help enforce the anti-trust laws and theretofore make them

more effective. The very foundation of the right of a private

suitor to recover treble damages under the statute authorizing a

person injured by violation of anti-trust laws to recover treble

damages is the violation of public rights prohibited by anti-trust

laws and, indeed, made criminal offenses. Kinnear-Weed

Corp. v. Humble Oil & Refining Co., 214 F.2d 801. The

failure as a matter of law to comply with the law to take as true

the allegations of the complaint and construe them most

favorably usurped the rule that required the courts to assume as

true the allegations of the complaint; and usurped the statute

that authorizes a private person to protect the public from

monopolies and restraints. Moreover, the failure to take as true

the allegations of the complaint illegally denied the right to

review and ruling of the complaint that alleged the violation of

federal law by the state and its officials in the grading formula

for the bar exam and enforcement of that grading formula.

CONCLUSION AND PRAYER

WHEREFORE, the said Roman Perales, seeks the aid

of the Honorable Court and respectfully requesting, prays:

1. That the petition be granted;

2. The judgment of the Court of Appeals be reversed and the

case remanded for further proceedings;

3. That a writ of certiorari and/or mandamus be issued

directing and commanding the Honorables Johnson, Jones and

DeMoss, Circuit Judges of the Fifth Circuit Court of Appeals,

and the other judges of the Fifth Circuit, and the District Comt

ee ee ee ee ee a Se

Judge, and Magistrate Judge to vacate the Magistrate’s Report

and Recommendation, and the orders, opinions, judgments

and mandate on decision for dismissal for want of jurisdiction;

4. That a writ of mandamus be issued directing and

commanding the Fifth Circuit Court of Appeals and the District

Court and Magistrate Judge to take as true the allegations in the

complaint that alleged that the regulation for the admission to

the practice of law involving the grading formula for the bar

exam which was not approved by the Supreme Court of Texas

violates the Sherman Act, and contrue them in the light most

favorable to the Petitioner in passing on a motion.

5. Order that the District Court has jurisdiction over elements

of the complaint that alleged that the bar admission rule and its

enforcement involving the grading formula for the bar exam

that was not approved by the State Supreme Court are in

violation of the Sherman Anti-Trust Act;

6. Remand for further proceedings on the request for

temporary restraining order and/or temporary injunction and

for trial on the merits;

7. That this Honorable Court grant to the Petitioner such other

and further relief as may be just in the premises and as the

Court may deem proper.

3505 Boca Chica, Suite 162

P.O. Box 5566

Brownsville, Texas 78523

(956) 541-3848

(956) 541-3572

Pro se

VERIFICATION

STATE OF TEXAS §

) §

COUNTY OF Muecey

BEFORE ME, the undersigned notary public, on this

day personally appeared ROMAN PERALES, who being by

me duly sworn on his oath, deposed and said:

1. “I am the Petitioner in this proceeding, and

Appellant in the underlying court of appeals’ action styled

Roman Perales v. Supreme Court of Texas, et al, Cause No.

97-40721, of which certiorari and/or mandamus proceeding

arises. I have read the above and foregoing Petition for Writ of

Certiorari and/or Mandamus and every factual statement

contained therein is within my personal knowledge and is true

and correct.”

2. “This petition has an appendix which is being

submitted to the United States Supreme Court. I have personal

knowledge that each copy of the pleadings, moti ns and orders

contained in the appendix is a true and reproduced copy of

pleadings, motions, and orders in the underlying district court

action and Court of Appeals of which mandamus proceeding

arises.

3. Further Affiant saith not.

Rowe, Lash

Roman Perales

SUBSCRIBED AND SWORN TO BEFORE ME on

the 2y day of August, 1998, to eértify which witness my

hand and official seal.

AFFIDAVIT

STATE OF TEXAS §

COUNTY OF A/ucces §

BEFORE ME, the undersigned notary public, on this

day personally appeared ROMAN PERALES, who being by

me duly sworn on his oath, deposed and said:

I am the Petitioner in this case and am capable of making this

affidavit. I am an applicant to the Bar of Texas. I was denied

and refused admission in 1991 to the present on the sole basis

of the 1991 grading formula for the bar examination. The

grading formula was made by the Board of Law Examiners

but was not approved by the State Supreme Court. I filed a

complaint in the Federal District Court that alleged that the

grading formula violated the Sherman Anti-Trust Act.

Defendants filed a motion to dismiss that failed to take as true

the allegations of the complaint and instead argued that the

complaint in reality is an attack of prior state court judgment.

The United States District Court Judge and Magistrate Judge

and the Court of Appeals Circuit Judges failed to exercise as a

matter of law, their authority when they had a duty to do so to

take as true the said allegations of the complaint and construe

them in the light most favorable.

The Petitioner Roman Perales has been denied his right

to have the said allegations of the complaint taken as true in

violation of the statutory rights and in violation of the rights to

his day in court, due process and equal protection; and no

forum is provided for contesting the challenged grading

formula that constitutes a per se violation of the Sherman Anti-

Trust Act. No remedy exists to compel the District Court

Judge and Magistrate Judge and the Circuit Court Justices to

exercise their authority when they had a duty to do so to take as

true the said allegations of the complaint; and no remedy exists

to compel the lower courts to assume jurisdiction of the

complaint as plead, and to proceed with the request for

temporary restraining order and trial on the merits.

3. Further Affiant saith R

nan Lael

Roman Perales

SUBSCRIBED AND SWORN TO BEFORE ME on

the RY > ‘

y of August, 1998, tp’certify which witness my

hand and official seal.

tintin

ait

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES,

Plaintiff

VS. § CIVIL ACTION NO. B-96-226

SUPREME COURT OF TEXAS,

CHIEF JUSTICE THOMAS R.

PHILLIPS; JUSTICES JURY

RAUL A. GONZALEZ;

NATHAN I. HECHT;

JOHN CORNYN; CRAIG ENOCH;

ROSE SPECTOR; PRISCILLA R.

OWEN; JAMES A. BAKER;

GREG ABBOTT; in their individual

and official capacities;

DAN MORALES, Attorney General

of Texas, individually and in his

official capacity;

BOARD OF LAW

EXAMINERS OF TEXAS;

RACHAEL MARTIN,

Executive Director of Texas Board

of Law Examiners; WARLICK CARR,

Chairman, Texas Board of Law

Examiners; individually and in

their official capacities

Defendants

FIRST AMENDED COMPLAINT

FOR DECLARATORY JUDGMENT,

PRELIMINARY AND PERMANENT INJUNCTION

AND OTHER RELIEF

TO THE HONORABLE UNITED STATES DISTRICT

JUDGE:

NOW COMES, ROMAN PERALES, hereafter called

Plaintiff, complaining of the SUPREME COURT OF TEXAS,

THOMAS R. PHILLIPS, Chief Justice; Justices, Raul A.

Gonzalez, Nathan I. Hecht, John Cornyn, Craig Enoch, Rose

Spector, Priscilla R. Owen, James A. Baker, Greg Abbott,

individually and in their official capacities; Dan Morales,

Attorney General of Texas, individually and in his official

capacity, Board of Law Examiners of Texas; Rachael Martin,

Executive Director of the Board of Law Examiners of Texas,

individually and in her official capacity, Warlick Carr,

Chairman of the Board of Law Examiners of Texas,

individually and in his official capacity, their agents, servants,

and/or employees, and all other persons acting in active concert

with them or under their control and direction, hereinafter

called Defendants, and for cause of action show the Court as

follows:

Parties

1. Named Plaintiff is ROMAN PERALES, a resident of the

Southern District of Texas, and an applicant to the Bar of

Texas. Named Plaintiff completed all the requirements of the

State of Texas for admission to the Bar of Texas in 1991.

Plaintiff’s right to have his 1991 application for admission be

governed by the rules approved by the Supreme Court is

continuing to be denied by the continuing enforcement of the

complained formula for the grading of the bar examination to

the 1991 application for admission.

2. Defendants are:

(a) THE SUPREME COURT OF TEXAS, the highest

Court for bar admission matters established by the Constitution

of the State of Texas, by serving Thomas R. Phillips, the Chief

Justice of said Court;

(b) THOMAS R. PHILLIPS, Chief Justice of the

Supreme Court of Texas, individually, and in his official

capacity, :

Court of Texas, individually and in his official capacity;

(d) NATHAN I. HECHT, Justice of the Supreme

Court of Texas, individually and in his official capacity;

(ec) JOHN CORNYN, Justice of the Supreme Court of

Texas, individually and in his official capacity;

(f) CRAIG ENOCH, Justice of the Supreme Court of

Texas, individually and in his official capacity;

(g) ROSE SPECTOR, Justice of the Supreme Court

of Texas, individually and in her official capacity;

(h) PRISCILLA R. OWEN, Justice of the Supreme

Court of Texas, individually and in her official capacity;

(i) JAMES A. BAKER, Justice of the Supreme Court

of Texas, individually and in his official capacity;

(j) GREG ABBOTT, Justice of the Supreme Court of

Texas, individually and in his official capacity;

(k) DAN MORALES, Attorney General of Texas,

individually and in his official capacity;

(1) BOARD OF LAW EXAMINERS OF TEXAS, by

serving Rachael Martin, Executive Director of said Board;

(il) RACHEL MARTIN, Executive Director of the

Board of Law Examiners of Texas, individually and in her

official capacity;

(m) WARLICK CARR, Chairman of the Board of

Law Examiners of Texas, individually and in his official

Capacity;

their agents, servants, and/or employees, and all other

persons acting in active concert with them or under their

control and direction. Plaintiff has furnish protest and notice

of this action, and the grounds therefor, to the Defendants.

Jurisdiction and Venue

4.1 This action is brought pursuant to the Sherman Anti-Trust

Act, §1 et seq., 15 U.S.C.. §1 et seq.

4.2 This Court has jurisdiction pursuant to 28 U.S.C. §1337.

5. There is no remedy, and not even a forum, under State law

in State Courts, or judicial or administrative process to

exhaust, because the State Judicial system, including the

highest judicial body, is enforcing the grading or scoring

system complained and made by the Board and not approved

by the Supreme Court in these proceedings. Further the

judiciary of the State of Texas, are the enforcers of the grading

or scoring system complained, and are not disinterested

parties.

6. This Court also has jurisdiction under 28 U.S.C. §2201,

§2202, to declare the relief sought, because no plain, speedy

and efficient remedy, or forum, may be had in the courts of

this State, and this Court may enjoin and restrain the

enforcement of the said procedure as to grading or scoring

system made by the Board and not approved by the Supreme

Court. In fact, much of the basic complaint in this action is

that no provision is made for either a plain, speedy, or efficient

remedy, or for any remedy at all, including a hearing or appeal

thereof. There is no state forum to adjudicate per se anti trust

violations as to the 1991 grading or scoring system

complained.

7. This Court has venue under 15 U.S.C. §22, and as

supplemented by 28 U.S.C. §§1391 and 1392, in that the

Defendant Supreme Court of Texas has statewide jurisdiction,

transacts business statewide, and the cause of action arose

within the Southern District of Texas.

7.1 All Defendants have previously appeared on motion for

temporary injunction by the Office of the Attorney General of

Texas, Mr. James Pinson, and have been previously served,

and no service of process is required in that they will receive a

copy of First Amended Complaint by and through their

attorney of record.

Nature of the Case

8.1. This action concerns the continuing per se violation of

the Sherman Act by the Defendants. The Defendant Justices

denied the Plaintiff’s 1991 application for admission based on

the formula made by the Board and not approved by the

Supreme Court. The decision of the Supreme Court to deny

Plaintiff’s 1991 application was based on the procedure made

by the Board alone, without approval of the Supreme Court of

Texas, as to the grading or scoring system for the bar

examination. The action of the Board without approval by the

Supreme Court as to the grading or scoring system and the

continuing enforcement of it, constitute continuing per se

violation of the Sherman Act.

8.2 The Texas Law requires that prior to the examination,

the Supreme Court of Texas approve any procedure made by

the Board before that procedure becomes effective. Under the

law, the Board only advises the Supreme Court of Texas as to

the governing of admission to the Bar. In 1994, the Supreme

Court of Texas approved the grading or scoring system

recommended by the Board as to prospective bar examinations

, me

8.3. While the Supreme Court of Texas in 1994 approved

the formula, it continues to, intentionally and with knowledge,

to deny Plaintiff’s 1991 application for admission based on the

procedure made by the Board alone. The Supreme Court’s

denial of Plaintiff's 1991 application is based on the procedure

made by the Board alone, that is not state sovereign action as a

matter of law and violates per se Sherman Anti-Trust Act.

8.4 The formula made by the Board and not approved by the

Supreme Court was enforced on the 1974 to 1994 applications

for admission. Presently, the formula complained continues to

be enforced on the 1974 to 1994 applications for admission

and the applications for 1974 to 1994 continue to be denied on

the basis of the formula made by the Board and not approved

by the Supreme Court.

8.5 Plaintiff claims the procedure as to grading or scoring

system made by the Board and not approved by the Supreme

Court, jointly, Defendants Court and Board and their Chief

Officers and others continue to violate per se the Sherman

Antitrust laws by unlawfully reducing the number of attorneys

to practice law. Specifically, this action complains of the

procedure, as to grading or scoring system made by the Board

and not approved by the Supreme Court, both as enacted by

the Board alone and as enforced by the Supreme Court, and in

continuing to deny Plaintiff’s right to have his 1991

application for admission be governed by the rules approved

by the Supreme Court.

Facts

9. That the formula for the 1991 bar examination and for

the 1974 to 1994 bar examinations, was not approved by the

Supreme Court is undisputed. In 1991, Plaintiff Roman

Perales, a bar applicant, met all the requirements of the State of

Texas for admission to the Bar of Texas. There was however

one obstacle for admission to the Bar. The Board of Law

Examiners made and applied a procedure as to grading or

scoring system for the bar examination without approval of the

Texas Supreme Court. The Texas Supreme Court denied and

continues to deny Plaintiff’s right to have his 1991 application

for admission be governed by the rules approved by the

Supreme Court. Based on the said procedure for the bar

examination, and denial of the right to be governed by rules

approved by the Supreme Court, Plaintiff scored 74.29 on his

bar exam in 1991 and missed the passing score by one-fifth of

a point, where the Supreme Court admitted applicants with a

score 74.50 or higher.

10. While the Supreme Court set the passing score for the

entire bar exam at 75 from 1974 to 1994, it did not establish a

scoring system for the bar examination or set the passing score

for the multistate bar exam. In 1994, the Supreme Court

approved the procedure as to the scoring system for the bar

examination and the passing score for the multistate bar exam

recommended by the Board.

11. The following are the Texas Constitutional provisions

and civil statutes relating to admission to the Bar. The Texas

Constitution vests authority in the Supreme Court to determine

who should be admitted to practice law in the State. Vernon’s

Ann. Texas Const. Art. 2, §1; The Texas Legislature

established the Board of Law Examiners. Under Texas law,

The Supreme Court’s rulemaking power is exclusive and not

subject to the approval of the state bar. Tex. Gov’t Code Ann.

§81.061 (West 1988). The Texas Supreme Court has

exclusive authority to grant licenses for the practice of law,

Sec. 82.021, Supreme Court authority. The Supreme Court

is also authorized to adopt rules on eligibility for examination

for a license to practice law and on the manner in which the

examination is conducted. The rules include the legal topics to

be covered by the course of study and by the examination; and

the manner of conducting the examination; and the grades

necessary for licensing, Government Code-Title 2 Judicial

Branch, Chapter 82. Licensing of Attorneys, Subchapter B.

Licensing of Attorneys, Sec. 82.022, (2), (4). The Supreme

Court shall adopt rules necessary to administer its functions

and to govern the administration of the Board of Law

Examiners’ function relating to the licensing of lawyers. Sec.

82.022, (6)(b).

12. The Board of Law Examiners acts under instructions of

the Supreme Court and shall determine the eligibility of

candidates for examination for a license to practice law in this

state. Sec. 82.004(a). Board Duties. The board shall examine

each eligible candidate as to the candidate’s qualifications to

practice law. Government Code-Title 2 Judicial Branch,

sign Hb

Chapter 82. Licensing of Attorneys, Subchapter A. Board of

Law Examiners. Sec. 82.004(b). Under the law, the

Applicants for admission have the right to be governed by the

rules approved by the Supreme Court.

13. In discharging its responsibilities under the above

Statute and prior statutes, the Texas Supreme Court has

adopted and published a compilation of rules. The rules in

effect in 1991, required a passing score of 75. However, the

rules provided no grading or scoring system for the bar

examination. See. Tex. R. Governing Admission VII(e)

(1991 & 1992). In 1991 and 1992, the description of the bar

examination was located in Rules Governing Admission to the

Bar VII(e). Amendments in 1993 and adopted by the Supreme

Court in 1994, renumbered this rule as Rule XI(e). The 1994

amendments to Rule XI(e) specifically call for the procedure as

to the administration of the MBE and for the grading or

scoring system. The scoring system for the bar examination

now requires a combined score of 675 out of 1000 to pass.

bee scoring system fixed the passing score for the MBE at

135.

14. The Board and the Supreme Court contended and the

state court held, in a suit against the Supreme Court of Texas

and the Board of Law Examiners and others, that Rule XX(d)

and (¢) of the Rules governing admission, prompted or

authorized the Board alone to make the procedure as to the

ding or scoring system for the bar examination. Rule

XX(d) of the Organizational and Miscellaneous powers of the

Board provides that: Insofar as may be consistent with these

Rules, the Board is authorized to make all reasonable

regulations, including written interpretations of general

application with respect to these Rules or provisions of general

application for relevant subjects not covered by these Rules.

The Board may also prescribe forms and certificates to be

executed by Applicants for admission to the Texas Bar,

whether for a first license or as a practicing attorney of another

jurisdiction, or certificates or other forms to be executed by or

on behalf of the Board itself. Rule XX(e), provides that the

Board is given discretion in the interpretation and application

of these Rules. For good cause shown to the satisfaction of

the Board, upon written request, waivers of specific

requirements described in these Rules may be granted, unless

it appears therefrom that no exceptions are contemplated by the

Supreme Court.

15. A rejected applicant is not entitled under the Rules to

seek in the District Court or in the Supreme Court

individualized review of an adverse recommendation of the

Board and denial of admission by the Supreme Court based on

the subject procedure.

16. Perales filed the petition for injunctive and declaratory

relief and damages, in the state district court on July 1993,

inter alia, to review the procedure complained as to the

violation of state law in the enactment and enforcement of the

subject procedure. In particular, he alleged that the procedure

as to grading or scoring system was in violation of state law

because the Supreme Court did not approved the procedure

made by the Board alone, which under the law required

approval before it was effective. He further alleged among

other claims, that the illegal conduct deprived him of due

process and equal protection as to his right to have the 1991

application for admission be governed by rules approved by

the Supreme Court. On March 1994, the state district court

denied his petition. On May 1995, the state court of appeals

affirmed, holding that the Board alone has authority to fix the

grading formula for the bar examination. On August 1995,

Perales then petitioned the Supreme Court to stop enforcement

of the subject procedure made by the Board and not approved

by the Supreme Court and to review the decisions of the lower

state courts as to the subject 1991 procedure or formula. He

alleged that the Board’s conduct with respect to the said 1991

ure violated state law and the subject procedure is void;

and further alleged that the orders of the lower state courts are

void thereby the state court denied him due process, equal

ion and access to courts for consideration of his petition

on the basis of fact that the subject formula made by the Board

and not approved by the Supreme failed to comply with the law

as a matter of law. Ten months later, on June 28, 1996, the

Supreme Court denied his petition; and approximately five

more months later, on November 15, 1996, the Supreme Court

denied the subsequent motion for rehearing and supplement.

Application for writ of error to the court of appeals was filed

on November 12, 1996 in the Third Court of Appeals in

Austin. The Supreme Court on February 21, 1997, dismissed

the application for writ of error for want of jurisdiction.

)

Cause of Action

17. The procedure complained as to grading or scoring

system made by the Board alone and not adopted by the

Supreme Court is a violaton of state law and is not state or

sovereign action as a matter of law. The Supreme Court

denied Plaintiff’s 1991 application for admission on the sole

basis of the said procedure that is not state or sovereign action,

and illegally reduced the number of attorneys to the practice of

law, a per se violation of §1 of the Sherman Anti-Trust Act, 26

Stat. 209, 15 U.S.C. §1. Goldfarb v. State Bar of Virginia,

421 U.S. 773, 790, 95 S.Ct. 2004, 2014, 44 L.Ed. 2d 572

(1975). The aforesaid unlawful per se non sovereign state

action, as to the grading formula made in 1991 by the Board

and not approved by the Supreme Court was intended to and

did result in a restaint of trade and commerce among the

several states by intentionally and unlawfully reducing the

numbers of competing attorneys in the State of Texas; and in

further consequence of said intentional and unlawful conduct,

Plaintiff was among those intentionally and unlawfully denied

his right to have his application be governed by the rules

approved the supreme court and thus prevented in 1991 from

entering into competition as an attorney in the State of Texas

and thereby further intentionally and unlawfully deprived of

the right to compete as an attorney for the legal business

deriving from or involving the Several States of the United

States, including Texas.

As a direct and proximate result of defendants’ acts

alleged above, Plaintiff has been illegally denied the right to

have is application for admission be governed by the rules

approved by the Supreme Court. Under 15 U.S.C. Section

15, Plaintiff is entitled to recover from each of the Defendants,

jointly and severally, threefold such damages sustained as well

as future damages and the cost of suit, including reasonable

attorneys’ fees.

As a result, the public has been deprived of free and

open competition in the foregoing trade and commerce. The

defendants’ actions have harmed and threaten to harm the

general public by interfering with the orderly practice of law in

the state by reducing the number of lawyers practiciag in the

State, and by depriving clients of the quality of legal care they

would receive but for Defendants’ actions against Plaintiff.

18. Notice of Intent to Request a Restraining Order of the

procedure complained made by the Board and not approved by

the Supreme Court has been delivered to the Supreme Court of

Texas and to the Attorney General of Texas.

REQUEST FOR INJUNCTIVE RELIEF

19. A temporary restraining order and preliminary injunction

are requested because (a) the actions of the Defendants with

respect to the 1991 procedure complained are not state or

sovereign action as a matter of law and violate per se the

Sherman Act; (b) an irreparable injury will result to Plaintiff, if

the actions of Defendants are not enjoined in that Plaintiff is

being illegaly denied the right to have his application for

admission be governed by the rules approved by the Supreme

Court; (b) there is no other adequate remedy at law available to

Plaintiff to redress the conduct of Defendants; and (c) the

Plaintiff has a reasonable possibility of prevailing on the merits

of his claims. Plaintiff has suffered and will continue to suffer

extensive damages in the denial of his right to have his

application for admission be governed by the rules approved

by the supreme court, unless defendants are restrained.

20. Plaintiff alleges that there is no damage or loss to the

Defendants for which bond would be necessary to protect.

The Defendants should not reasonably be expected to incur any

court costs or chargeable costs in this matter. Therefore,

Plaintiff requests the Court to set a minimal bond ag by

individual sureties.

21. Defendants appeared, participated and orally opposed, by

and through James Pinson of the office of the Attorney General

on December 11, 1996 on a hearing for temporary restaining

order and/or preliminary injunction. The case was referred to

and heard by the Honorable John William Black, Magistrate.

As of the filing of the First Amended Complaint, the Magistrate

has not filed with the court a written recommendation to grant

or deny the relief requested.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff

requests that Defendants be cited to appear and answer herein,

and that the Court:

(1) issue a temporary restraining order at once and a

preliminary injunction, pursuant to Sherman Anti-Trust Act

and Rule 65 of the Federal Rules of Civil Procedure, ordering

and enjoining the Defendant Supreme Court, and individual

Defendants, in their individual and official capacities, their

agents, servants, and/or employees, and all other persons

acting in active concert with them or under their control and

direction, to refrain immediately, and pending further hearings

and determinaticn of this action, from:

(a) enforcement of the grading system complained that

was not approved by the Supreme Court;

(b) denying Plaintiff’s right to have his 1991

application for admission be governed by the rules approved

by the Supreme Court;

procedure;

(2) issue order directing the Supreme Court of Texas to

immediately and without delay to apply only the rules

approved by the Supreme Court to Plaintiff's 1991 application

for admission.

(3) upon final hearing, issue a permanent injunction

perpetually enjoining Defendants, their agents, servants,

and/or employees and all persons acting in active concert with

them or under their control and direction, from committing the

conduct complained of herein, to wit: enforcement of the

formula complained and not approved by the supreme court;

and illegally denying Plaintiff’s right to have his 1991

application for admission be governed by the rules approved

by the Supreme Court ;

(4) declare that the complained formula made by the board and

not approved by the Supreme Court is void;

(5) direct the Supreme Court of Texas to apply the rules

approved by Supreme Court to Plaintiff's 1991 application for

admission;

(6) declare that the said procedure is in violaion of state law

and not state or sovereign action as a matter of law, and

violated per se the Sherman Act;

(7) award Plaintiff damages and costs;

(8) award treble damages;

(9) award the plaintiff his costs and expenses of this litigation

including reasonable attorneys’ fees;

(10) order such other and further relief as is necessary to

effectuate the foregoing and to which Plaintiff, may be justly

entitled.

Respectfully submitted,

McKenzie

Brownsville, Texas 78523

(210) eee

Robert H. Mendoza

3505 Boca Chica, Suite 162

P. O. Box 5566

Brownsville, Texas 78523

(210) 541-3848

OF COUNSEL: Federal I.D. 11418

CESAR A. AMADOR Attorney for Plaintiff

Jury Demand

Plaintiff respectfully requests that all issues of fact,

save those expressly reserved by law for the Court, be

determined by a jury.

VERIFICATION

STATE OF TEXAS §

COUNTY OF CAMERON

Before me, the undersigned Notary Public, on this day

personally appeared ROMAN PERALES, who being by me

duly sworn upon his oath deposed and said that he is the

Plaintiff in the above-entitled and numbered cause; that he has

read the above and foregoing Plaintiff’s Amended Complaint;

and that every statement contained therein is within his

personal knowledge and true and correct.

/s/

ROMAN PERALES

SUBSCRIBED and sworn to before me on the 8th day

of April 1997, to certify which witness my hand and official

seal.

Js/

Abel Bentacourt, Jr.

Notary Public in and for

the State of Texas

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing verified First Amended Complaint, First Amended

Motion for Temporary Restraining Order and/or Temporary

Injunction and affidavit was forwarded by United States first-

class mail, postage-prepaid, on this the 9th day of April, 1997

to the following:

Attorney for Defendants:

Honorable Dan Morales

Attorney General of Texas

James Pinson

Office of the Attorney General

Tom Clark Building

205 West 14th Street

P.O. Box 12548

Austin, Texas 78711-2548 a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES, §

Plaintiff §

Vv. § Civil Action No.

§ B-96-226

SUPREME COURT OF TEXAS, §

CHIEF JUSTICE §

THOMAS R. PHILLIPS, et al §

Defendants §

December 11, 1996

Minute entry

Attorneys Present: Robert Mendoza and James Pinson.

On this date a hearing was held on the record to address

Plaintiff's Motion For Temporary Restraining Order and/or

Preliminary injunction. Above Counsel appeared. After

argument by counsel, Plaintiff was instructed to address (1)

whether venue was proper and (2) whether these claims were

precluded by Plaintiff’s state court claims. Plaintiff testified

that he had not taken any bar exam subsequent to the one

complained of in 1991. Defendants were instructed to prepare

a written response to Plaintiff’s pleadings. The court indicated

that a Recommendation to DENY all requested relief would be

written on the grounds that no emergency or other injury was

demonstrated, but, as agreed to by counsel for the parties, such

recommendation would not be issued until Defendant’s

responsive pleading was filed.

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES, §

Plaintiff §

Vv. § Civil Action No.

§ B-96-226

SUPREME COURT OF TEXAS, §

CHIEF JUSTICE §

THOMAS R. PHILLIPS, et al §

Defendants §

STATE DEFENDANTS’ MOTION TO DISMISS

AND BRIEF IN SUPPORT

TO THE HONORABLE COURT:

Supreme Court of Texas Chief Justice Thomas R.

Phillips, Justices Raul A. Gonzalez, Nathan I. Hecht, John

Cornyn, Craig yong Rose Spector, Priscilla R. Owen,

James A. Baker, Greg Abbott, Dan Morales, Board of Law

Examiners of Texas, Rachael Martin and Warlick Carr,

hereinafter collectively Defendants, hereby move for dismissal

of this action. In support of their motion, Defendants show

the court the following: '

Factual Background

Plaintiff Roman Perales failed the Texas Bar Exam in

February 1989, July 1989, and July 1990. In July 1991, he

passed Part Il of the exam but failed Part I. In July 1992, he

again failed Part II. Then, on June 4, 1993, plaintiff began his

crusade to browbeat the legal system into giving him a law

license. For four years, Plaintiff has pursued his claims

through the State Court system. Plaintiff has now duly

litigated his dissatisfaction with the Supreme Court and the

Board of Law Examiners before the the Travis County Disrict

Courts, the Third Court of Appeals and the Texas Supreme

Court. Plaintiffs claim, through his four year state court battle,

was, primarily, that his inability to pass the bar stems from a

change in the calculation of the Multistate Bar Examination

score. This change was made in July 1991 Board of Law

Examiners meeting. Throughout the Plaintiff’s state court

pleadings, Plaintiff asked the various courts to enjoin the

application of the changed MBE score and to enter a passing

score for the Plaintiff. On March 28, 1994, after a trial on the

merits, the trial court denied Plaintiff's requests for injunctive

and declaratory relief. That finding was affirmed by the Third

Court of Ap — on May 17, 1995. Plaintiff has filed an

avalanche of motions before the Supreme Court of Texas,

between August 29, 1995 and March 11, 1996. Included have

been a Motion for Leave to File a Petition for Writ of

Mandamus, A Motiont for Extension of Time to File a Petition

for Writ of Error, A Motion for Emergency Temporary

Injunctive Relief and a First Amended Motion for Leave to File

Amended Petition for Writ of Mandamus and Writ of

Prohibition. These motions were overruled by the Court on

june 28, 1996. Plaintiff’s Motion of Rehearing of Motion for

Leave to File Petition for Writ of Mandamus, as supplemented,

Plaintiff's Motion to Recuse and Plaintiff's Motion to Issue

License were overruled on November 15, 1996.

II.

Brief in Support

A. Pilaintiff’s claims should be dismissed under the

Rooker-Feldman Doctrine.

Plaintiff in actuality is seeking to collaterally attack an

order rendered in a state court proceeding by claiming, at this

late date and after exhausting all State Court remedies, that

there is not an adequate State Court forum for his complaints.

This Court lacks appellate jurisdiction over state court

proceedings under the Rooker-Feldman Doctrine, and

Plaintiff's request for relief should be dismissed. Although

Plaintiff's complaint seeks redress for alleged anti-trust

violations, the essential relief sough is review of the state

court’s orders against Plaintiff.

Plaintiff’s allegations regarding anti-trust violations

stem from alleged defects in the procedure and rulings in the

Texas Courts. Such claims are properly reviewed in the state

judicial system, not in federal district court. As the Fifth

Circuit has stated, “judicial errors committed in the state courts

are for correction in the state court system, at the head of which

stands the United States Supreme Court; such errors are

no business of ours.” Hale v. Harney, 786 F.2d 688, 691

(Sth Cir. 1986). ;

Under the Rooker-Feldman doctrine, this Court has no

appellate jurisdiction over the questioned state court

proceedings. Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923); District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482 (1983).

This is the relief that the Plaintiff seeks in the present

case. Plaintiff is improperly seeking an appellate review by

this court in an attempt to have this Court reverse the rulings in

the Texas State court civil action rendered against Plaintiff. To

circumvent dismissal, Plaintiff has attempted to camouflage

this improper action by couching its allegations in terms of

anti-trust violations that are closely based upon the decisions

rendered by the Texas state court. This Court does not have

jurisdiction over this action and should therefore dismiss

Plaintiff's suit.

WHEREFORE, PREMISES CONSIDERED,

Defendant prays that Plaintiff’s suit be dismissed and that

Plaintiff takes nothing by his suit and that all costs be taxed

against Plaintiff; Defendant further prays that the Court grant

Defendant whatever and other further relief to which they may

show themselves to be justly entitled both in law and in equity.

First Assistant Attorney General

LAQUITA A. HAMILTON

Deputy Attorney General for Litiation

TONI HUNTER, Chief

General Litigation Division

Assitant Attorney General

Texas Bar No. 00785834

Attorney in Charge

Southern District #19416

P.O. box 12548, Capitol Station

Austin, Texas 78711

phone (512) 463-2120/

Fax (512) 320-0667

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing document has been sent by u.S. Mail on April 14,

1997 to:

Robert H. Mendoza Roman Perales, Pro Se

p. O. box 5566 1403 Lawson

Brownsville, Texas 78523 — Texas 77023

ALLISON H. ECCLES

Bear 1K NORE A ET Sagi nM OO OR

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES, §

Plaintiff §

Vv. § Civil Action No.

§ B-96-226

SUPREME COURT OF TEXAS, §

CHIEF JUSTICE §

THOMAS R. PHILLIPS, et al §

Defendants §

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

Roman Perales (“Perales”) has failed the Texas Bar

Examination ‘ee times coming heartbreakingly close once.

Since 1993, he has been en in the Texas state courts with

the Texas Supreme Court and the Board of Bar Examiners.

He has been unsuccessful in pressing his argument that the

Board of Bar Examiners improperly changed the method of

scoring the Multistate Bar Examination in 1991, and did not

get that decision notified by the Supreme Court.

On December 5, 1996, Perales filed this suit against

the Texas Suprmee Court, the individual justices of that court,

the Attorney General of Texas, the Board of Bar Examiners,

its Executive Director and its Chairman.

PERALES’ CLAIMS

Perales claims that the defendants violated the Sherman

Anti-trust Act 15 U.S.C. §1 seq. The factual predicate of this

claim is that under Texas law the function of the Board of Bar

Examiners is to advise the Texas Supreme Court which has the

authority to set standards for the Bar Examination. According

to Perales and not denied by the State defendants, the Board of

Bar Examiners did not get approval from the Supreme Court

forr the formula used in 1991 to determine whether or not

someone had passed the Exam.

Perales argues that he is entitled to an injunction and a

declaratory judgment declaring the 1991 Bar Examinations

void.

THE STATE’S RESPONSE

The State has filed a Motion to Dismiss arguing that

this Court has no jurisdiction over Perales’s claims which are

in effect a collateral attack on a state court judgment. The State

cites Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and

Disrict of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983) for this proposition. :

RECOMMENDATION

Hoover v. Ronwin, 466 U.S. 558 (1983) involved a

fact situation virtually identical to Perales. Ronwin sued to

gain admission to the Arizona Bar, claiming that the grading

procedure in Arizona was a violation of the Sherman Act,

because it was aimed at restricting the number of lawyers in the

state. Arizona’s procedures are identical to Texas’ i.e. the

Supreme court has authority to admit to the Bar. The Court

delegated the power to examine applicants to a Committee

which established a grading formula which was submitted for

approval to the Supreme Court.

In the Hoover case, the U. S. Supreme Court held that

since this proceeding gives ultimate authority for admission to

the Bar to the Arizona Supreme Court, it is state action and

thus exempt from the application of the federal anti-trust laws

yee the state action doctrine Parker v. Brown, 317 U.S. 341

(1943).

Perales attempts to distinguish Hoover from his case by

arguing that the Texas Board of Bar Examiners did not submit

the grading formula to the Texas Supreme Court in 1991. He

argues that this administrative lapse permits the application of

the Sherman Act to his claims. In their motion to Dismiss, the

state defendants do not address this point. Their motion is

limited to the claim that this court has no jurisdiction. This

position is best stated by the Fifth Circuit in Hale v. Harney,

786 F.2d 688, 691 (Sth Cir. 1986):

Judicial errors committed in state courts are for correction

in the state court systems, at the head of which stands the

United States Supreme Court; such errors are no

business of ours.

Perales attempts to clothe his complaints about the

adminstration of the Texas Bar Examination in the garb of an

anti-trust suit when in reality it is a complaint about the way he

was treated in the Texas judicial system. This is“... no

business of ours.”

IT IS THEREFORE RECOMMENDED that this case

be DISMISSED for want of jurisdiction.

A party’s failure to file written objections to the

proposed findings, conclusions, and recommendation in a

magistrate judge’s report and recommendation within 10 days

after being served with a copy shall bar that party, except upon

grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings and legal conclusions

accepted by the district court, provided that the party has been

served with notice that such consequences will result from a

failure to object. Douglass v. United Services Automobile

Association, 79 F.3d 1415 (5th Cir. 1996).

DONE at Brownsville, Texas, this 28th day of April,

1997.

/s/

John Wm. Black

United States Magistrate Judge

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES, §

Plaintiff

Vv. Civil Action No.

B-96-226

et. al.,

Defendants

ORDER OF DISMISSAL

SUPREME COURT OF TEXAS, ;

Before the Court is the Magistrate Judge’s Report and

Recommendation on the above-referenced cause of action.

After a de novo review of the entire file, it is the opinion of this

Court that the Magistrate Judge’s Report and Recommendation

of April 28, 1997, should be Adopted.

Accordingly, it is hereby ORDERED, ADJUDGED,

AND DECREED, that the above-referenced Report and

Recommendation should be and is hereby fully Adopted and

the case is Dismissed with Prejudice.

SO ORDERED.

DONE at Brownsville, Texas this 21st day of May,

1997.

/s/

FILEMON B. VELA

United States District Judge

ragh ore

APPENDIX F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ROMAN PERALES, §

Plaintiff §

v. § Civil Action No.

§ B-96-226

SUPREME COURT OF TEXAS, §

et. al., §

Defendants §

ORDER

Before this Court is Plaintiff Roman Perales’

Emergency Motion for Reconsideration in the above-

referenced cause of action. For the reasons stated in the

previously-issued Order of Dismissal dated May 21, 1997, the

me is of the opinion that the relief sought therein should be

Accordingly, it is ORDERED, ADJUDGED and

DECREED that Plaintiff’s Emergency Motion for

Reconsideration should be and is hereby DENIED.

DONE at Brownsville, this 30th day of July, 1997

/s/

FILEMON B. VELA

United States District Judge

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40721

Summary Calendar

ROMAN PERALES

Plaintiff-Appellant

versus

SUPREME COURT OF TEXAS, CHIEF JUSTICE

THOMAS R. PHILLIPS; JUSTICES RAUL A. GONZALEZ;

NATHAN I. HECHT; JOHN CORNYN; CRAIG ENOCH;

ROSE SPECTOR; PRISCILLA R. OWEN; JAMES A.

BAKER; GREG ABBOTT; in their individual and official

capacities, DAN MORALES, Attorney General of Texas,

individually andinhis official capacity; BOARD OF LAW

EXAMINERS OF TEXAS; RACHAEL MARTIN, Executive

Director of Texas Board of Law Examiners; WARLICK

CARR, Chairman, Texas Board of Law Examiners;

individually and in their official capacities

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

(B-96-CV-226

Before JOHNSON, JONES, and DEMOSS, Circuit Judges.

PER CURIAM:*

Pro se Plaintiff Roman Perales appeals the district

court’s dismissal of his complaint. In his complaint, Perales

argued that the grading formula used in the 1991 Texas Bar

Examination violated the Sherman Act. The district court

concluded that because Perales’s complaint was “about the way

he wes treated in the Texas judicial system[,]” the court did not

have subject matter jurisdiction.

This court reviews a district court’s dismissal for lack

of jurisdiction de novo. Musselwhite v. State Bar of Texas,

32 F.3d 942, 945 (Sth Cir. 1994), cert. denied, 515 U.S.

1103 (1995). Under the Rooker/Feldman doctrine, federal

courts lack jurisdiction to entertain collateral attacks on state

court judgments. Liedtke v. State Bar of Texas, 18 F.3d 315,

317 (Sth Cir.), cert. denied, 513 U.S. 1036 (1994). Stripped

to its essentials, Perales’s complaint is an attack on the

judgment of the state court. Therefore, after a careful review

of the record and the controlling authorities, this Court holds

that the district court did not err in dismissing Perales’s

complaint for lack of subject matter jurisdiction. See

Musslewhite, 32 F.3d at 945.

Perales also asserts that his right to access to courts,

due process and equal protection were violated by the district

court’s dismissal of his complaint. A litigant’s right of access

to the courts is implicated where the ability to file suit is

delayed or blocked all together. Foster v. City of Lake

Jackson, 28 F.3d 425, 430 (Sth Cir. 1994). The district

court’s dismissal of Perales’s complaint did not abridge his

right of access to the court, his right to due process or his right

to equal protection.

This court does not consider Perales’s argument in

support of mandamus as the issue is moot.

Therefore, for the foregoing reasons, the judgment of

the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5th Cir. R.

47.5.4.

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40721

ROMAN PERALES

Plaintiff-Appellant

versus

SUPREME COURT OF TEXAS, CHIEF JUSTICE

THOMAS R. PHILLIPS; JUSTICES RAUL A. GONZALEZ;

NATHAN I. HECHT; JOHN CORNYN; CRAIG ENOCH;

ROSE SPECTOR; PRISCILLA R. OWEN; JAMES A.

BAKER; GREG ABBOTT; in their individual and official

capacities; DAN MORALES, Attorney General of Texas,

individually andinhis official capacity, BOARD OF LAW

EXAMINERS OF TEXAS; RACHAEL MARTIN, Executive

Durector of Texas Board of Law Examiners; WARLICK

CARR, Chairman, Texas Board of Law Examiners;

individually and in their official capacities

Defendants-Appellees

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 3/27/98, 5 Cir.. F.3d )

Before JOHNSON, JONES and DeMOSS, Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENTED and no member of

this panel nor judge in regular active service on the court

having requested that the court be polled on Rehearing En

Banc, (Fed. R. App. P. and 5th Cir. R. 35) the Suggestion for

Rehearing is also DENIED.

ENTERED FOR THE COURT

/S/ Sam D. Johnson

United States Circuit Judge

APPENDIX I

28 U.S.C. §1254

Court of Appeal; certiorari; appeal; certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after rendition

of judgment or decree;

28 U.S.C. §1651

Writs

(a) The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the usages and

principles of law.

28 U.S.C.A. 1337

Commerce and antitrust regulations; amount in controversy,

costs

(a) The district courts shall have original jurisdiction of any

civil action or proceeding arising under any Act of Congress

regulating commerce or protecting trade and commerce against

restraints and monopolies: Provided, however, That the

district courts shall have original juisdiction of an action

brought under section 11707 of the title 49, only if the matter

in controversy for each receipt or bill of lading exceeds

$10,000, exclusive of interest and costs.

Sherman Act, 15 U.S.C.A. § 1 seq.

§1. Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce

among the several States, or with foreign nations, is declared

to be illegal. Every person who shall make any contract or

engage in any combination or conspiracy hereby declared to be

illegal shall be deemed guilty of a felony, and, on conviction

thereof, shall be punished by fine not exceeding $10,000,000

if a corporation, or, if any person, $350,000, or by

imprisonment not execeeding three years, or by both said

punishments, in the discretion of the court.

§2. Every person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or commerce

among the serveral States, or with foreign nations, shall be

deemed guilty of a felony, and, on conviction thereof, shall be

APPENDIX I con’t

punished by fine not exceeding $10,000,000 if a corporation,

or, if any person, $350,000, or by imprisonment not

exceeding three years, or by both said punishments, in the

discretion of the court.

Constitution of the United States

Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time

of War or public danger; nor shall any person be subject for

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.