Opposition Brief — Washington Legal Foundation v. Texas Equal Access to Justice Foundation

No. 96-1766

Supreme Co

FIL

In The

Supreme Court of the United \

October Term, 1996

e¢—

HON. THOMAS R. PHILLIPS, HON. RAUL A. GONZALEZ,

HON. JACK HIGHTOWER, HON. NATHAN L. HECHT,

HON. LLOYD DOGGETT, HON. JOHN CORNYN, HON.

BOB GAMMAGE, HON. CRAIG T. ENOCH, HON. ROSE

SPECTOR, TEXAS EQUAL ACCESS TO JUSTICE

FOUNDATION, AND W. FRANK NEWTON, IN HIS

OFFICIAL CAPACITY AS CHAIRMAN OF THE TEXAS

EQUAL ACCESS TO JUSTICE FOUNDATION,

Petitioners,

WASHINGTON LEGAL FOUNDATION,

WILLIAM R. SUMMERS, AND MICHAEL J. MAZZONE,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

OPPOSITION TO CROSS-PETITION

FOR A WRIT OF CERTIORARI

Nancy TREASE

Office of the Attorney

General of Texas

P.O. Box 12548, Capitol

Station

Austin, TX 78711

(512) 475-4075

Attorneys for Petitioners Hon.

Thomas R. Phillips, Hon. Raul

A. Gonzalez, Hon. Jack

Hightower, Hon. Nathan L.

Hecht, Hon. Lloyd Doggett,

Hon. John Cornyn, Hon. Bob

Gammage, Hon. Craig T.

Enoch, and Hon. Rose Spector

June 3, 1997

Darrevt E. JORDAN

H. Rosert Powe"

BrittAN L. BUCHANAN

Davip J. SCHENCK

BetH W. Brvans

Hucues & Luce, L.L.P.

111 Congress, Suite 900

Austin, TX 78701

(512) 482-6800

Attorneys for Petitioners Texas

Equal Access to Justice

Foundation, and W. Frank

Newton, in His Official

Capacity as Chairman of the

Texas Equal Access to Justice

Foundation

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO,, (800) 225

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Did the Fifth Circuit err by holding that the Texas

Equal Access to Justice Foundation, an entity created

by the Texas Supreme Court to operate in a manner

directed by the Rules of that Court, is an arm-of-the-

state entitled to immunity under the Eleventh

Amendment in a suit challenging the Order of the

Texas Supreme Court that brought the Foundation

into existence?

TABLE OF CONTENTS

Page

STATEMENT GE TEGS CAGE a cicncccinsedccsevensten 1

REASONS FOR DENYING THE WRIT............. 3

INTRODUCTION AND SUMMARY ................ 3

1. The Fifth Circuit Did Not Reject Hess .......... 4

2. Neither the Fifth Circuit’s Holding Nor Those

Cited By the Cross-Petitioners are in Conflict

With Any Other Deckstomt ... oc occ. cc eccecenses. 6

3. Cross-Petitioners’ Actual Argument Is Not Wor-

Gey af REWEONT 2 occ oc ccnccusscnsanssenetees ee) 9

4. This Court has Already Applied the Hess Factors

to Sdenghe-Ginte Tee «oon a ccp ce ccenkcdes eases 10

COCL AFSL oii con cinsasiceecenenenceneens bacean 12

iii

TABLE OF AUTHORITIES

Page

CasES

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ........ 6

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534

| ARE Sey pe aoe y oe ee eer ere Te ram 10

Chevron U.S.A., Inc. v. Natural Resources Defense

Ga OO, Me Gm Gee ERNE cis cise eeccsedense 11

Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d

1140 (3d Cir.), cert. denied, _ U.S. __, 116 S. Ct

ES SRT re yer ere gn ear ene rere ere 8

Delahoussaye v. City of New Iberia, 937 F.2d 144 (5th

EE ear a bas ce Ve bee kk ae ath nee nan be oki os 5

Gray v. Laws, 51 F.3d 426 (4th Cir. 1995) ............. 8

Green v. State Bar of Tex., 27 F.3d 1083 (5th Cir.

EE ete ces aks a Wank eR RACKARWN Oo ue aa RAO a Oe >

Hadley v. North Arkansas Community Technical Col-

lege, 76 F.3d 1437 (8th Cir. 1996), cert. denied, __

ee Bae ee eee DG EOE D6 5 caw baw bee Seukhe nts 8

Hess v. Port Authority Trans-Hudson Corp., 513 U.S.

eh ae Oo, ne Pe nc ake deus ewan de passim

Holly Farms Corp. v. NLRB, __ U.S. __, 116 S. Ct.

NE ee a a has CES REDKEN SS aE DS REED 11

Lake Country Estates, Inc. v. Tahoe Reg’l Planning

po a ee eg Sy | ae ee en 7

Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493 (5th

PE facet chigteGuans KESeD VA te wa teu ae nd pees 6

Mancuso v. New York State Thruway Auth., 86 F.3d

289 (2d Cir.), cert. denied, __ U.S. __, 117 S. Ct.

eg tae ae ES Sd EEK SEAR EEA O ROR EST AA OSES 8

iv

TABLE OF AUTHORITIES — Continued

Page

Morris v. Washington Metro. Transit Auth., 781 F.2d

PE CR. SE TNE 0 vein ess ind Caeane eats 10

O’Connor v. State Bar of Nev., 686 F.2d 749 (9th

Cir.}, cert. denied, 459 US. 1071 (1982). ... 2.200.255. 6

Pillsbury Co. v. Port of Corpus Christi Authority, 66

F.3d 103 (5th Cir. 1995), cert. denied, _U.S.__,

SO Hi 0. Se Ee ee ee cas 4

Regents of Univ. of Cal. v. Doe, Ri cg RAF Oe

ee BY og ney ee peem raters Cyt 3, 8, 11

Seminole Tribe of Fla. v. Florida, ____ U.S. __, 116 S.

eR hs Bi. | Pepe pres waren: rete e re 4,8,9

Sonnenfeld v. City & County of Denver, 100 F.3d 744

(10th Cir. 1996), cert. denied, 65 U.S.L.W. 3572

(US. May 19, 1997} (No. 96-1296).................. 8

Thiel v. State Bar of Wis., 94 F.3d 399 (7th Cir. 1996) ...6, 7

OTHER

Clothing State Governmental Entities with Sovereign

Immunity: Disarray in the Eleventh Amendment

Arm-of-the-State Doctrine, 92 Colum. L. Rev. 1243

5 Brees eee ren ene net pi penn tn Cab yen Genre Fs 8

Carlos M. Vazquez, What is Eleventh Amendment

Immunity, 106 Yale L. J. 1683, 1806 (1997)......... 10

STATEMENT OF THE CASE

This opposition is submitted by the Justices of the

Supreme Court of Texas, the Texas Equal Access to Justice

Foundation (“TEAJF”) and W. Frank Newton in his offi-

cial capacity as Chairman of the Texas Equal Access to

Justice Foundation (collectively “Petitioners”) in response

to the Cross-Petition for a Writ of Certiorari filed by the

Washington Legal Foundation and other cross petitioners

(collectively “Cross-Petitioners”).

The case is a challenge to the existence of the Texas

IOLTA (“Interest on Lawyer’s Trust Account”) program

established by order of the Texas Supreme Court in 1984.

The facts of the underlying suit have been thoroughly

briefed by the parties in the Petition for a Writ of Cer-

tiorari and in the Cross-Petition. See Cross-Pet. at 3-8. The

Cross-Petition seeks review of the specific language

employed in the Fifth Circuit’s Eleventh Amendment anal-

ysis,! claiming a “conflict” exists among the circuit courts.

This “conflict,” however, involves nothing more than

a once-existing academic debate (since resolved by this

Court) over the relative significance of factors in the

“arm-of-the-state” analysis. In truth, the Cross-Petition

merely clouds the issues presented in the original Petition

for a Writ of Certiorari related to the Fifth Amendment's

Takings Clause. Indeed, the attendant briefing on the

Eleventh Amendment issue would be cumbersome and

unnecessary, as no actual “conflict” exists.

1 The Cross-Petition is directed only at the Fifth Circuit’s

holding that TEAJF is entitled to immunity. There is no

challenge to the immunity of W. Frank Newton.

From the outset, the parties have focused attention

on the constitutional attack on the existence of the Texas

IOLTA program. At the district court, and again at the

Fifth Circuit, the Eleventh Amendment was of only minor

concern. Both courts found that the Eleventh Amendment

immunized TEAJF from suit in federal court without its

consent. Specifically, in the district court, Cross-Peti-

tioners challenged the Texas Supreme Court and its Rule

bringing TEAJF into existence. The district court held that

TEAJF acts as an agent of the Texas Supreme Court and

occupies the position of a public agency for purposes of

the Eleventh Amendment. Pet. App. 38a. Cross-Peti-

tioners had argued that TEAJF was not an arm-of-the-

state absent evidence that the state treasury would be

liable for money judgments entered against TEAJF.

While the Eleventh Amendment issue was again

raised at the Fifth Circuit, that court commented on the

“lackadaisical approach” of the parties in pursuing the

issue. In short order, the court held that Eleventh Amend-

ment immunity clearly applied. The Cross-Petition makes

much of the language and analysis employed by the Fifth

Circuit in reaching this holding, claiming that the suc-

cinct opinion is somehow in “conflict” with the analysis

employed by other courts of appeals. It is on the basis of

this contrived “conflict” that Cross-Petitioners seek

review in this Court.

REASONS FOR DENYING THE WRIT

INTRODUCTION AND SUMMARY

In their Conditional Cross-Petition, Washington

Legal Foundation and the other Cross-Petitioners (hereaf-

ter collectively “Cross-Petitioners”) urge the Court to

resolve “the conflict among the circuits regarding how to

evaluate claims that an entity is an ‘arm of the state’

entitled to Eleventh Amendment immunity.” (Cross-Pet.

at 8). In fact, there is no conflict. The Cross-Petitioners

have strained to create the impression that a conflict

exists by finely parsing the opinion in Hess v. Port Author-

ity Trans-Hudson Corp., 513 U.S. 30, 115 S. Ct. 394 (1994),

which involved a bi-state entity, and by selectively focus-

ing on nuances in the way the lower courts have applied

Hess's language in the more typical situation involving

only a single state.

At most, the Cross-Petition addresses supposed “con-

fusion,” outside the bi-state entity context, over the rela-

tive “importance” of one of the “factors” cited by the

Court in Hess.? This academic debate does not amount to

a conflict, was not addressed by the court or the parties in

this case and, in any event, appears already to have been

resolved by this Court. Regents of Univ. of Cal. v. Doe, __

U.S. ____ , 117 S. Ct. 900, 904-05 (1997) (applying state

treasury factor of Hess to single-state entity). The argu-

ment Cross-Petitioners seek to advance on the tentative

2 In Hess, the Court stressed “Bi-state entities occupy a

significantly different position in our federal system than do the

States themselves,” and ultimately found that no immunity

existed. 115 S. Ct. at 400. The holding is clear and has not

created any “confusion” among the lower courts.

strength of this “conflict” - that immunity cannot exist

unless a judgment would be satisfied directly from the

state treasury — is one that has not “confused” the lower

courts or created any conflict, real or imagined. Indeed, it

was rejected by this Court in Seminole Tribe when it held

two Terms ago that “The Eleventh Amendment does not

exist solely in order to ‘preven[t] federal court judgments

that must be paid out of a state treasury.’ ” Seminole Tribe

of Fla. v. Florida, __ U.S. __, 116 S. Ct. 1114, 1124 (1996).

Granting the Cross-Petition would do little more than

unnecessarily expand the issues before the Court in this

case.

1. The Fifth Circuit Did Not Reject Hess

Far from announcing some radical departure from

any rule laid down in Hess, even a cursory examination of

the decision below confirms, as the Cross-Petitioners con-

cede (Cross-Pet. at 9), that the Fifth Circuit never even

cited Hess or had any occasion to depart from its holding.

Cross-Petitioners, in artfully-crafted language, suggest

that the Fifth Circuit has “taken the position” that Hess

applies only to bi-state entities and has “no relevance” to

the immunity of entities created by a single state. Id.

(emphasis added).

Cross-Petitioners cite an earlier Fifth Circuit decision,

Pillsbury Co. v. Port of Corpus Christi Authority, where the

court held that Hess had not overruled an earlier opinion

in which the Port Authority of Houston was found to be

entitled to Eleventh Amendment immunity. 66 F.3d 103,

104 (5th Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct.

1705 (1996). The Fifth Circuit panel went on to discuss the

holding of Hess in dicta: “[w]le view Hess as a limited

holding addressing the standard to be applied to bi-state

entities not created pursuant to state statute.” Id. This dicta

is hardly surprising given Hess’s own recognition that “Bi-

state entities occupy a significantly different position in

our federal system than do the States themselves.” 115 S.

Ct. at 400. Regardless, nowhere in this decision (or any

other opinion) did the Fifth Circuit ever suggest (as Cross-

Petitioners now claim) that any of the “factors” driving the

holding in Hess were “irrelevant.”> In fact, just the opposite

is true. The Fifth Circuit has repeatedly applied the state-

treasury factor, even where the entity in question was the

creation of a single state. Green v. State Bar of Tex., 27 F.3d

1083, 1087 (5th Cir. 1994); Delahoussaye v. City of New Iberia,

937 F.2d 144, 147-48 (5th Cir. 1991) (listing state-treasury

factor as “most significant”).

Exactly where or how the Fifth Circuit in this case

has “taken the position” that any factor employed in Hess

is “irrelevant” in the single-state (or any other) context is

a mystery. See Pet. App. la-19a. Indeed, no mention of

such a distinction is even made. Instead, the Fifth Circuit

makes short work of the argument that an agency created

by a state supreme court to effectuate a court ruling is not

entitled to immunity. Though it makes no mention of

3 This Court’s denial of certiorari despite the explicit dicta

concerning Hess (absent here) of course does not carry any

precedential effect and should not be taken as an indication that

the Court found no need to clarify any deficiency in “language”

either in Hess or this opinion.

4 In fact, the Fifth Circuit makes note of the parties’

“lackadaisical approach” to the Eleventh Amendment

argument. Perhaps the Court’s perception was driven in part by

Hess, it certainly suggests no confusion over the proper

analysis.

Thus, at most, the Cross-Petition seeks to present the

question of a supposed conflict among the other circuits

over the relative importance of language in Hess as it

relates to state agencies. As explained below, no such

conflict exists. Moreover, to the extent the language in

Hess has created “confusion” on this issue, this Court has

already resolved it.

2. Neither the Fifth Circuit’s Holding Nor Those Cited

By the Cross-Petitioners are in Conflict With Any

Other Decision

The Fifth Circuit’s holding below is consistent with

every one of the few published decisions in which a

plaintiff has attempted to argue that officials appointed

by a state supreme court to effectuate a court mandate

should not be considered an arm of the state. E.g., Thiel v.

State Bar of Wis., 94 F.3d 399, 403 (7th Cir. 1996); Lewis v.

Louisiana State Bar Ass'n, 792 F.2d 493, 497 (5th Cir. 1986)

(focusing on impact on public funds); O’Connor v. State

Bar of Nev., 686 F.2d 749, 750 (9th Cir.), cert. denied, 459

U.S. 1071 (1982); see also Bates v. State Bar of Ariz., 433 U.S.

350, 361 (1977) (discussing relationship between Arizona

Supreme Court and Bar). Of course, the Cross-Petition

does not focus on the actual holdings of this Court or of

the obvious inconsistency of Cross-Petitioners’ argument both

in this Court and below. On the one hand, Cross-Petitioners

vigorously propound a Fifth Amendment case alleging action

under color of state law. On the other, they attempt to suggest an

absence of state action as it applies to the Eleventh Amendment.

the circuits. Rather, the Cross-Petition stresses the lan-

guage and analyses in this Court’s Hess decision and in a

handful of decisions from other circuits. Most specifically,

Cross-Petitioners stress the relative importance of one

factor in this Court’s suggested multi-pronged Eleventh

Amendment test: whether a judgment would be paid

from a state’s treasury.

The Cross-Petition claims that the lower federal

courts and commentators have been “confused” about

whether this factor is still the most important where,

unlike the agency at issue in Hess, the defendant is

related to a single state. Nowhere do Cross-Petitioners

suggest that this debate was even addressed in this case.

In fact, all of the decisions cited by the Cross-Petitioners

in support of the supposed “conflict” with the Fifth Cir-

cuit’s “position” agree that the decision in Hess is ger-

mane.°

Even in the context of a single-state entity, no conflict

exists among the circuits as to the applicability of the

factors enunciated in Hess and other cases from this

Court® to the Eleventh Amendment analysis. Contrary to

Cross-Petitioners’ assertions, the analyses of other cir-

cuits following Hess are not inconsistent with that of the

> One panel of the Seventh Circuit did note that this factor

may have played a greater role in Hess, because the entity there

involved was a joint creation of several states that generated

income (and satisfied debts) outside a single state’s treasury. See

Thiel v. State Bar of Wis., 94 F.3d 399, 401 (7th Cir. 1996).

© E.g., Lake Country Estates, Inc. v. Tahoe Reg’! Planning

Agency, 440 U.S. 1171 (1979) (analyzing factors relevant to the

Eleventh Amendment inquiry in the bi-state context).

Fifth Circuit. Each considers a variety of factors.”? While

Cross-Petitioners would argue otherwise, even after Hess,

this Court itself has already noted that the payment of

judgments out of the state treasury is not the sole factor

in an Eleventh Amendment analysis. Seminole Tribe of Fla.

v. Florida, __ U.S. __, 116 S. Ct. 1114, 1124 (1996). The

Fifth Circuit’s analysis is simply less detailed than those

found in other circuits. Thus, while there may be some

confusion in Eleventh Amendment jurisprudence as a

general matter, it would seem that only the Cross-Peti-

tioners are unable to understand Hess.®

This raises what should be a rather obvious question:

how would adding the question of whether the state

treasury factor is the “most” important to this case aid in

its disposition? There is no indication that the Fifth Cir-

cuit disregarded this factor as “an indicator of the rela-

tionship between the state and its creation.” Regents of

7 E.g., Mancuso v. New York State Thruway Auth., 86 F.3d 289,

293 (2d Cir.), cert. denied, __ U.S. __, 117 S. Ct. 481 (1996);

Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1144-45

(3d Cir.), cert. denied, __ U.S. __, 116 S. Ct. 340 (1995); Gray v.

Laws, 51 F.3d 426, 431-33 (4th Cir. 1995); Hadley v. North Arkansas

Community Technical College, 76 F.3d 1437, 1438-39 (8th Cir.

1996), cert. denied, __ U.S. __, 117 S. Ct. 1080 (1997); Sonnenfeld

v. City & County of Denver, 100 F.3d 744, 749 (10th Cir. 1996), cert.

denied, 65 U.S.L.W. 3572 (U.S. May 19, 1997) (No. 96-1296).

8 The one student note Cross-Petitioners cite in support of

the notion that the appeals courts are unable to devise a

coherent approach to these questions was written two years

before this Court’s decision in Hess attempted to lend guidance.

Note, Clothing State Governmental Entities with Sovereign

Immunity: Disarray in the Eleventh Amendment Arm-of-the-State

Doctrine, 92 Colum. L. Rev. 1243 (1992).

Univ. of Cal. v. Doe, ___ U.S. ___, 117 S. Ct. 900, 904 (1997).

Instead, Cross-Petitioners seek to present a new argu-

ment - that immunity is not available if the judgment

would be paid by an entity related to the state out of

operating funds, regardless of whether the state treasury

would ultimately be called on to replace them.

3. Cross-Petitioners’ Actual Argument Is Not Worthy

of Review

For reasons that are not apparent, Cross-Petitioners

would narrow the inquiry to whether Hess would require

denial of immunity (apparently with respect to single- or

bi-state entities) unless a judgment would be paid

directly from the state treasury. They do not even suggest

that there has been any conflict in the lower courts over

this question or that it was even presented in this case.

They cite no authority from this Court or any other in

support of such an absurd result. Yet they maintain that

their contrived “conflict” requires resolution in this case.

The position of the Cross-Petitioners is simply illogical

and wrong. This Court has already refused to give the so-

called “state-treasury factor” the controlling weight that

Cross-Petitioners would urge if the Cross-Petition were

granted. Seminole Tribe of Fla. v. Florida, ___ U.S. __, 116S.

Ct. 1114, 1124 (1996) (“The Eleventh Amendment does

not exist solely in order to ‘prevent federal court judg-

ments that must be paid out of a state’s treasury’ ”)

(quoting Hess). In fact, even Hess suggests that where, as

here, the continued existence of the entity would be

r |

10

threatened by the litigation itself were it not for addi-

tional financial backing of the state, the judgment per-

force expends itself against the state’s treasury. Hess, 115

S. Ct. at 405 (citing Morris v. Washington Metro. Transit

Auth., 781 F.2d 218 (D.C. Cir. 1986)).

Further, it is difficult to imagine how this case would

be an appropriate vehicle for addressing this argument.

While Cross-Petitioners apparently have some philosoph-

- ical motivation, they have no cognizable interest at stake.

Even they concede (Cross-Pet. at 20) that there are just a

few hundred dollars at stake. In fact, they have no money

at stake; their funds could have earned no net interest at

all were it not for the aggregation in an IOLTA account.

This Court has traditionally refused to involve itself (for a

host of salient reasons) in cases in which the parties do

not have any real injury or other concrete motivation to

pursue the issues. Legal questions presented to the Court

should “be resolved, not in the rarified atmosphere of a

debating society, but in a concrete factual context condu-

cive to a realistic appreciation of the consequences of

judicial action.” Bender v. Williamsport Area Sch. Dist., 475

U.S. 534, 542 (1986).

4. This Court has Already Applied the Hess Factors to

Single-State Entities

To the extent the Cross-Petition and commentators?

truly seek clarification of the role the state treasury “factor”

plays in the context of single-state entities, that question was

9 E.g., Carlos M. Vazquez, What is Eleventh Amendment

Immunity, 106 Yale L. J. 1683, 1806 (1997).

pais

11

answered rather emphatically in Regents of Univ. of Cal. v.

Doe, __ U.S. ___, 117 S. Ct. 900, 904-05 (1997). In that case,

the Ninth Circuit had denied immunity to the University,

because a federal agency had agreed to indemnify it. This

Court applied Hess and concluded that the University

remained immune, reaffirming that it is the potential effect

of a judgment?! that is significant in determining the

relationship between the entity and the state.

In sum, the Cross-Petitioners’ “conflict” is illusory

and insubstantial. Further, the rule Cross-Petitioners wish

the Court to consider (1) has nothing whatever to do with

this case or the supposed “conflict” they advance and (2)

finds no support in this Court or any other. This Court

should adhere to its usual role of resolving actual con-

flicts and issues presented in the case under review. Holly

Farms Corp. v. NLRB, ___ U.S. __, 116 S. Ct. 1396, 1402 n.7

(1996). Moreover, the Court should refrain from review of

the particular language or analyses employed by the

lower courts. Although, Cross-Petitioners make much of

this “conflicting” language, it has long been true that

“this Court reviews judgments, not opinions.” Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842 (1984).

10 Hence, one would assume that a payment out of the

budget of the University would have required replacement by

the state.

12

CONCLUSION

The Cross-Petition does not identify any conflicting

holdings of the lower courts. Neither does it suggest any

conflict between the decision below and any other deci-

sion. Instead, it suggests that there has been a conflict in

language and analyses in lower court opinions regarding

the state-treasury factor as applied to single-state entities

in Eleventh Amendment jurisprudence. As even this pe-

‘dantic “conflict” has been resolved (and in any event

played no role below), it is not in the interest of the Court

or the parties to grant the Cross-Petition. The Cross-

Petition should therefore be denied.

Nancy TREASE

Office of the Attorney

General of Texas

P.O. Box 12548, Capitol

Station

Austin, TX 78711

(512) 475-4075

Attorneys for Petitioners

Hon. Thomas R. Phillips,

Hon. Raul A. Gonzalez,

Hon. Jack Hightower, Hon.

Nathan L. Hecht, Hon.

Lloyd Doggett, Hon. John

Cornyn, Hon. Bob

Gammage, Hon. Craig T.

Enoch, and Hon. Rose

Spector

June 3, 1997

Respectfully Submitted,

Darrett E. JoRDAN

H. Rosert Powe .*

BrittAN L. BUCHANAN

Davin J. SCHENCK

Bet W. Brvans

Hucues & Luce, L.L.P.

111 Congress, Suite 900

Austin, TX 78701

(512) 482-6800

Attorneys for Petitioners

Texas Equal Access to

Justice Foundation, and W.

Frank Newton, in His

Official Capacity as

Chairman of the Texas

Equal Access to Justice

Foundation

*Counsel of Record