Opposition Brief — Randell v. Johnson

Supreme Caest, U.S.

FILiD

MAR 15 2001

No. 00-1054

Inu the CLERK

Suprente Court of the United States

TOMMY RANDELL.

Petitioner.

V.

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;

MELINDA BOZARTH, DIRECTOR, TEXAS BOARD OF

PARDONS AND PAROLES: JOHN DOE, I; JOHN DoE, II,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN CORNYN GREGORY S. COLEMAN*

Attorney General of Texas Solicitor General

ANDY TAYLOR CHARLES K. ELDRED

First Assistant Attorney Assistant Attorney General

General

MICHAEL T. McCAUL P.O. Box 12548

Deputy Attorney General Austin, Texas 78711-2548

for Criminal Justice [Tel.] (S12) 936-1700

[Fax] (512) 474-2697

*('ounsel of Record

COUNSEL FOR RESPONDENTS

QUESTION PRESENTED FOR REVIEW

Should limitations or exceptions to Heck v. Humphrey's “favorable-

termination” prerequisite for §1983 suits be considered in a case in

which the plaintiff has not alleged that it was somehow impossible

for him to satisfy Heck’s requirement, where there is only the barest

of factual allegations, and where the issue has not been developed

or fully litigated in the courts below?

TABLE OF CONTENTS

Question Presented for Review .......................... i

foe yo oso v5 0S Cie ndovacoewans ill

Index of Authorities OL OE A ee iv

a 2

Reasons for Denying the Writ .......................... 5

I. This Case Does Not Present the Heck

Issue Posed by Petitioner and It Is an

Inadequate Vehicle for Reviewing

EE iS iy A a ar 5

I. There Is No Confusion in the Lower

Courts Requiring the Court's

te 9

SE ee i 14

iii

INDEX OF AUTHORITIES

CASES

Berkovitz v. United States, 486 U.S. 531 (1988) ............ 2

Board of Pardons & Paroles v. Court of App. for the

Eighth Dist., 910 S.W.2d 481

ee FS re rer rrr rrr ry Trt. 3

Cabrera v. City of Huntington Park,

Se Fe FO CE 8s nok ona cease een aaween 1]

Carr v. O'Leary, 167 F.3d 1124 (CA7 1999) ............. 10

DeWalt v. Carter, 224 F.3d 607 (CA7 2000) ............. 12

Edwards v. Balisok, 520 U.S. 641 (1997) ................ 13

Figueroa v. Rivera, 147 F.3d 77 (CAI 1998) ............. 1]

Green v. Montgomery, 219 F.3d 52 (CA2 2000) ........... 11

Harvey v. Waldron, 210 F.3d 1008 (CA9 2000) ........... 12

Heck v. Humphrey, 512 U.S. 477 (1994) «2... 2.00... passim

Hoard v. Reddy, 175 F.3d 531 (CA7 1999) .............. 7,9

Huey v. Stine, 230 F.3d 226 (CA 6 2000) ................ 12

Jenkins v. Haubert, 179 F.3d 19 (CA2 1999) ............. 12

Kim v. Hurston, 182 F.3d 113 (CA2 1999) ............... 13

Leather v. Eyck, 180 F.3d 420 (CA2 a) REUTER POT 10,11

Nashville, C. & St. L.R. Co. v. Wallace,

SO Ds POT one cn vn bs vk daene oddcedieun 8

Shamaeizadeh v. Cunigan, 182 F.3d 391 (CA6 re 12

Spencer v. Kemna, 523 U.S. 1 (1998) ............... passim

STATUTES

oO UBL. GEINSA 55 io dda as 5hsnel ne 4,8

28 U.S.C. §1915(eX2(B) ....... 0000s 8

OE Nihon QUOORS 30x winded ener eet ee passim

TEX. GOv’T CODE §508.251 ........................... 3

TEX. GOV’T CODE §508.252 ................00.-....... 3

TEX. GOv’T CODE §508.254 ........................... 3

No. 00-1054

In the

Supreme Court of the United States

TOMMY RANDELL.

Petitioner.

Vv.

GARY L. JOHNSON, DiRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;

MELINDA BOZARTH, DiRECTOR, TEXAS BOARD OF

PARDONS AND PAROLES; JOHN DoE, I: JOHN DoE. II,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Petitioner has not identified any legitimate reason for the

Court to revisit its holding in Heck vy. Humphrey.' He has not

presented a significant division in the lower courts regarding the

proper scope of Heck’s “favorable-termination” prerequisite for

§1983 suits. He has also failed to allege that it was somehow

impossible for him to satisfy that requirement, which would be the

only legitimate way to raise the possibility of a limitation on Heck’ s

application. Lastly, this case lacks the necessary factual and issue

development to permit meaningful consideration of modification of

1. 512 U.S. 477 (1994).

2

the Heck rule. All these reasons render this case an inappropriate

candidate for the Court’s review.

STATEMENT OF THE CASE

Randell’s in forma pauperis complaint was dismissed sua

sponte as frivolous, so all of the factual allegations in Randell’s

complaint must be accepted as true.” Those brief allegations, in

their entirety, follow:

On 9-7-96 while incarcerated in Plainview, TX, for DWI,

no bond was available as T.D.C.J. [Texas Department of

Criminal Justice] Board of Pardons and Paroles had

placed a blue warrant detainer on me preventing me from

making any bond and I was not given or granted liberty of

freedom in any way, and thus, from 9-27-96 to 6-26-97,

| was not credited for all this time I served on this

sentence under a detainer and at later time(s) I’ve had to

serve all over again. | have fully served my five year

sentence, but still to this day I have never received any

credit for this flat time served under this detainer from 9-

27-96 to 6-26-97. This time was served under my 655140

T.D.C.J. number. (Complaint §V) (emphasis in original).

Randell also states that Respondent Johnson, Director of

TDCJ-Institutional Division, is “responsible for the detention past

the correct sentence of (5) five years,” and that Respondent

Bozarth, Director of the Texas Board of Pardons and Paroles, is

“responsible for the proper discharge and calculation of time on

sentence.” (Complaint §1V.B).

2. Berkovitz v. United States, 486 U.S. 531, 546 (1988).

3

Randell appears to allege that at some time before he was

arrested for driving while intoxicated, he was sentenced to five

years in TDCJ for an unidentified crime and was paroled before

serving the complete five-year sentence. Following his DWI arrest,

Randell spent the nine months in the Plainview, Texas jail. While

he does not explain if these nine months were a sentence for the

DWI offense, he claims that he could not make bond on the DWI

arrest because TDCJ issued a “blue warrant” on him, which is a

prerevocation warrant issued for the arrest of a person suspected of

violating his or her parole.’ After being released from the

Plainview jail, he went back to TDCJ one or more times on the pre-

existing five-year sentence, presumably due to parole violation,

eventually serving the entire five-year sentence in TDCJ.

(Complaint JV).

Randell contends that because a blue warrant was issued, the

nine months in the Plainview jail on the DWI charge should also

count as part of his five-year sentence for the unspecified prior

crime, and sought solely “compensatory damages of $1,000 [for]

each day I served over my sentence.” (Complaint JV).

Randell does not suggest that he sought habeas relief when

TDCJ failed to release him at the allegedly appropriate time. The

first challenge to the allegedly unconstitutional additional nine

months of confinement appears to be this §1983 lawsuit. When he

filed this case, he had completed his five-year sentence but was

back in TDCJ on a new sentence. (Complaint JV).

Following the Prison Litigation Reform Act’s screening

requirement, 28 U.S.C. §1915A, the district court sua sponte

3. See, e.g., Board of Pardons & Paroles v. Court of App. for the

Eighth Dist.,910 S.W.2d 481, 482 (Tex. Crim. App. 1995); see also TEX.

GOv’T CODE §§508.251(a), 508.252(2) & (3), 508.254.

4

dismissed Randell’s complaint, citing Heck v. Humphrey’ and its

requirement that § 1983 plaintiffs seeking monetary damages for an

allegedly unconstitutional conviction or term of confinement first

obtain a “favorable termination” of that sentence or conviction.”

On appeal, the Fifth Circuit affirmed the district court’s

dismissal on the ground that Heck bars petitioner's §1983 claim,

citing the following portion of that decision:

We hold that, in order to recover damages for [an]

allegedly unconstitutional conviction or imprisonment, or

for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a §1983

plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus, 28

U.S.C. 2254.°

The Fifth Circuit observed that some courts, based on dicta from

concurring and dissenting opinions in Spencer v. Kemna,’ have

speculated that, if presented the question, the Court would relax

Heck’s universal favorable-termination requirement for §1983

plaintiffs with no procedural vehicle to challenge a conviction or

4. 512 U.S. 477 (1994).

5. App. 7a (citing Heck, 512 U.S., at 486-87).

6. App. 3a (citing Heck, 512 U.S., at 486-87).

7. 523 U.S. 1, 17 (1998) (deciding, inter alia, that a prisoner’s

release mooted habeas challenge to parole revocation despite potential

utility of successful habeas challenge in satisfying Heck’s “favorable-

termination” requirement).

5

sentence.* The Fifth Circuit went on to state that even if Heck were

to be relaxed for plaintiffs lacking a procedural vehicle to challenge

a conviction or sentence, Randell had failed to allege that he had no

available procedural vehicle, but rather complained only of an

inability to obtain habeas relief.’

REASONS FOR DENYING THE WRIT

I. THts CASE DOES NOT PRESENT THE HECK ISSUE POSED BY

PETITIONER AND IT IS AN INADEQUATE VEHICLE FOR

REVIEWING THAT ISSUE.

Petitioner urges the Court to grant the petition in order to

review the question whether convicted persons who have no

effective habeas remedy or other vehicle to reverse or call into

question a conviction or sentence may challenge their convictions

or sentences under §1983, or whether such challenges are

impermissible collateral attacks. But this case simply does not raise

that question, because Randell did not allege that he could not

comply with the requirement because he lacked any other avenue

to correct the alleged error in his TDCJ sentence.'°

In Spencer v. Kemna, Justice Souter’s concurring opinion

revisited Heck’s holding and expressed concern that application of

8. App. 3a & n.4.

9. App. 3a.

10. See Heck, 512 U.S., at 486-87 (holding that for a §1983

claim premised on invalid conviction or sentence, plaintiff must “prove

that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination or called into question by a

federal court’s issuance of a writ of habeas corpus” in order for action to

be cognizable).

6

the favorable-termination requirement could make a §1983 claim

unavailable to a convict not in custody simply because of that

status.'' The concurrence, together with the concurrence in Heck

itself, listed potential scenarios where Heck’s requirement might

render a plaintiff otherwise eligible for §1983 relief ineligible due

simply to not being in custody at the time of suit, e.g., where there

is nO imprisonment, but only a fine; where there is a short term of

imprisonment or parole; where a plaintiff, through no fault of his

own discovers a constitutional violation after the sentence has been

served; and finally, where the favorable termination requirement

would be impossible to satisfy as a matter of law."

Randell does not allege that he sought habeas relief while

incarcerated, nor does he address a reason for that failure. He does

not allege that through no fault of his own, he discovered a

constitutional violation only after the expiration of his sentence; to

the contrary, he states he was denied bond at the Plainview jail

because of TDCJ’s prerevocation warrant. See Pet. 2. Randell does

not suggest that he attempted to correct the alleged error in his term

of confinement through notice to TDCJ via the prison grievance

system. Instead of answering the question whether he used the

prison grievance system on the standard inmate §1983 lawsuit form

used to file this case, Randell crossed out the alternative choices of

“yes” and “no” and wrote “not applicable.” (Complaint III).

Furthermore, he did not allege that he had no other avenues by

which to call into question or correct his length of confinement. In

sum, Randell did not allege that he was “bound to a favorable-

11. 523 U.S., at 20-21 & n.* (Souter, J., concurring).

12. Jd, at21 & n.* (Souter, J., concurring); Heck, 512 U.S., at

500 (Souter, J., concurring); see also Spencer, 523 U.S., at 21 (Ginsberg,

J., concurring).

J

termination requirement that it would be impossible as a matter of

law for him to satisfy.”"”

Given the utter absence of allegations that petitioner tried any

routes to correct the alleged error, this is clearly not the kind of case

that was imagined as a cause for concern in the Heck and Spencer

concurrences heralded by petitioner.’ Randell was not fined or

sentenced to a short term, he did not contend that he lacked a way

to satisfy Heck’s “favorable termination” requirement, and he has

not suggested that he discovered the sentence error only after his

release.’ Randell does not present a case that even warrants

exploring the possible circumstances and conditions in which there

might be an exception to Heck’s prerequisite. As such, petitioner’s

case could not be a more poorly suited vehicle for consideration of

the issue.

13. Spencer, 523 U.S., at 21 (Souter, J., concurring). See also

App. 3a (noting Randell’s failure to do so).

14. See Spencer, 523 U.S., at 20-21 & n.* (Souter, J.,

concurring); Heck, 512 U.S., at 500 (Souter, J., concurring); see also

App. 3a (noting that courts observing that if the question were presented,

the Court “would relax Heck’s universal favorable termination

requirement [only] for plaintiffs who have no procedural vehicle’)

(emphasis added); Hoard v. Reddy, 175 F.3d 531, 533 (CA7 1999)

(noting that “there is probably an exception to the rule of Heck for cases

in which no route other than a damages action under section 1983 is open

to the person to challenge his conviction”) (emphasis added).

15. Heck, 512 U.S., at 500 (Souter, J., concurring) (expressing

concern about such potential circumstances in application of Heck); see

also Spencer, 523 U.S., at 21 (Souter, J., concurring) (suggesting that a

§ 1983 plaintiff not in custody could pursue a claim “without being bound

to satisfy a favorable-termination requirement that it would be impossible

as a matter of law for him to satisfy”) (emphasis added).

ne

In addition to the fact that this case does not truly raise the

issue identified by petitioner, it is also an inappropriate candidate

for the Court’s review because it has not been fully litigated. The

district court sua sponte dismissed the complaint in accordance with

its obligation to review prisoner complaints at the earliest possible

stage and dismiss those that are frivolous or malicious, fail to state

a claim upon which relief may- be granted, or seek monetary relief

from an immune defendant. See 28 U.S.C. §§1915A,

1915(e)(2)(B). The Fifth Circuit briefing involved only petitioner’s

single, pro se brief. The record before this Court includes only that

brief together with petitioner’s complaint (excerpted in full), filing

fee documents and rulings, and the two court orders included in

petitioner's appendix.

This case lacks the necessary concrete context in which to

review the issue. Without any basic factual allegations, the Court

could hardly even begin to consider the issue of lifting Heck’s bar

in certain circumstances. In addition, there was apparently no

prison grievance filed, which would have either resolved

petitioner's complaint-or contributed some record of dates,

sentencing, time served, and TDCJ’s position. And the critical fact

of whether Randell’s nine-month stay in the Plainview jail was part

of his DWI sentence or due to the prerevocation warrant remains

unclear. Delineating particular parameters for Heck’s rule would be

a highly fact-bound decision’ implicating incentives and policy

concerns in the areas of §1983 and habeas litigation that the Court

could not account for in its consideration of the issue because of the

absence of any issue or factual development in this case.'°

16. Review of petitioner's proposed issue in the context of this

case would border on “advising what the law would be on an uncertain

or hypothetical state of facts.” Nashville, C. & St. L. R. Co. v. Wallace,

288 U.S. 249, 261 (1935).

9

Il. THERE IS NO CONFUSION IN THE LOWER COURTS

REQUIRING THE COURT’S INTERVENTION.

Despite agreement among the First, Fourth, Fifth, and Sixth

Circuits that dicta in Spencer’s concurring opinions did not create

a limitation or exception to Heck,'’ Randell alleges a division

among the circuit courts regarding the scope of Heck’s “favorable-

termination” requirement for §1983 suits. An examination of the

cases, however, reveals that with only slight exception, they present

straightforward applications of Heck’s requirement and

uncontroversial §1983 suits that admittedly fall outside the scope

of Heck’s requirement. Petitioner does not demonstrate a level of

“confusion” warranting the Court’s review.

The division outlined by petitioner is shallow at best. He cites

decisions from the Second Circuit and Seventh Circuit that he

claims reflect confusion by the courts when confronted with §1983

plaintiffs who are no longer in custody. See Pet. !1-13. With regard

to the Seventh Circuit, however, petitioner admits that it “has not

yet had occasion to issue a square holding on this issue,” and

instead points only to “indicat[ions}” that the Seventh Circuit agrees

with the concurring opinions of Justice Souter in Heck and Spencer.

Pet. 13. Indeed, in Hoard v. Reddy,'* a decision cited by petitioner

in furtherance of a “split,” the Seventh Circuit held the plaintiff to

Heck’s requirement in a §1983 lawsuit seeking damages for an

access-to-courts violation based on hindering the prisoner’s ability

to litigate a state habeas action, noting that the plaintiff “had no

basis for complaining that no route was open to him other than this

damages action.”””

17. See Pet. 13-14.

18. 175 F.3d 531, 533 (CA7 1999).

19. Petitioner’s other Seventh Circuit decision addressing Heck

and Spencer did not even reach an application of Heck. See Pet. 13

10

Thus, it appears that it is only the Second Circuit that has

permitted an exception to Heck’s bar, while the other circuits have

stayed the course. And the Second Circuit's deviation is hardly an

impetus for the Court's review of the urged issue. That court’s

limitation on Heck’s rule does not have its origins in the concerns

expressed in the Heck and Spencer concurrences. Instead, it was a

quickly adopted extension by faulty reasoning from the situation

of “conditions-of-confinement” cases for which there is no habeas

remedy, although § 1983 actions are permitted. In Leather v. Eyck,”

a case in which the plaintiff was not imprisoned but fined with a

suspended license, the Second Circuit relied on the unavailability

of habeas relief in “conditions-of-confinement” cases to conclude

that because Heck clearly does not apply to such cases—because

they do not challenge the validity of convictions or sentences—then

Heck must not apply to any situation in which habeas relief is

unavailable. In reaching this conclusion, the Second Circuit failed

to explore or even acknowledge the logic behind the two different

circumstances, and instead wholesale imported the inapplicability

of Heck in “conditions-of-confinement” cases into the context of

§1983 cases, which do involve challenges to the validity of

sentences or convictions. The Second Circuit did not justify

curbing Heck because its rule would otherwise command some

unjust or anomalous result-—-the only concern which has been

hypothesized—and did not consider the effect of other possible

avenues of challenge.”!

(citing Carr v. O'Leary, 167 F.3d 1124, 1127 (CA7 1999) (holding that

defendants waived their Heck defense to due-process challenge to prison

disciplinary proceeding regarding good-time credits)).

20. 180 F.3d 420, 424 (CA2 1999).

21. See id., at 424; see also id., at 422 (noting that plaintiff did

not appeal conviction).

1]

In petitioner's only other Second Circuit decision implicating

Heck’s rule, Green v. Montgomery,” the court merely cited and

restated its Leather holding in a footnote,’ and certified questions

regarding issue preclusion to the New York Court of Appeals.”

Neither Second Circuit decision explores the parameters of Heck,

and Green ironically complies with the spirit of Heck’s rule by

directing an initial adjudication of the dispositive §1983 issues by

the state court, the very informing purpose of Heck’s rule.”

Armed with only the Second Circuit’s two idiosyncratic

decisions, petitioner faces the phalanx of decisions applying the

Heck rule without pause. In Figueroa v. Rivera,”* the First Circuit

performed a matter-of-fact application of Heck when a prisoner

brought a habeas challenge to his conviction, but later died,

mooting the action. His heirs then tried to assert the same claims

through a §1983 suit, an effort rejected on the ground that the

conviction could not be collaterally attacked via a § 1983 suit.”’ The

court noted that a separate deliberate indifference claim was not

subject to Heck’s requisite favorable termination.~* Ina variation on

a theme, the Ninth Circuit considered in Cabrera vy. City of

Huntington Park’ the interplay of the accrual of §1983 causes of

action for statutes of limitations purposes with the reasoning in

Heck regarding when §1983 claims become cognizable.” The

22. 219 F.3d 52 (CA2 2000).

23. /d., at 60 n.3.

24. Id, at 6).

25. 512 US., at 497-98 & n.4.

26. 147 F.3d 77(CAI 1998).

27. Id., at 81-82.

28. /d., at 82.

29. 159 F.3d 374, 380-81 (CA9 1998).

30. The Ninth Circuit conducted a similar analysis in Harvey v.

Waldron, 210 F.3d 1008, 1014-16 (CA9 2000). See also Shamaeizadeh

12

—

decision built on Heck’s foundation, and did so seemingly with

ease. The appropriateness of Heck’s bar was not at issue in the case

because the plaintiff did achieve a prior reversal of his conviction,

and other claims did not call into question any conviction or

sentence.

In an effort to conjure a circuit split, petitioner also reviews a

series of decisions which fail to even implicate Heck’s “favorable-

termination” prerequisite. Randell cites Jenkins v. Haubert’' to

illustrate the Second Circuit’s purported adherence to the

disinclination in Justice Souter’s concurrences to preclude a §1983

claim simply because of the status of being out of custody. In that

decision, however, the Second Circuit acknowledged that the case

did not even implicate Heck’s requirement because the Court “has

never announced that the Heck rule bars a challenge under §1983

to an administrative or disciplinary sanction that does not affect the

overall length or conviction.” Likewise, in DeWalt v. Carter,

another decision cited by petitioner, the Seventh Circuit recognized

that Heck does not come into play in a §1983 suit alleging a due-

process violation at a prison disciplinary hearing which results in a

change of conditions of confinement, because the fact or duration

of confinement is not under challenge.” In Kim v. Hurston,” the

Second Circuit merely noted once again that Heck is not implicated

v. Cunizan, 182 F.3d 391, 396-97 (CA6 1999) (considering same issue

and reaching same conclusion). See also Pet. 14 (acknowledging that

cited observation by Sixth Circuit in Shamaeizadeh regarding Court's

view of scope of Heck is “dictum” and that Sixth Circuit has explicitly

held that Spencer made no inroads on Heck’s rule in Huey v. Stine, 230

F.3d 226, 230 (CA6 2000).

31. 179 F.3d 19 (CA2 1999).

32. Id., at 27.

33. 224 F.3d 607, 616-18 (CA7 2000).

34. 182 F.3d 113, 118.3 (CA2 1999).

13

in a §1983 lawsuit complaining of conditions of confinement if the

prisoner is not challenging the validity of the term of confinement.

These decisions do not reflect any division among the courts,

as Heck itself explains that its requirement is triggered when a

§1983 damages claim “necessarily demonstrates the invalidity of

the conviction [or sentence],”** because only then could the

claimant be said to be “attacking the fact or length of

confinement.”** Any division in the circuit courts is shallow at best

and remains undeveloped.

35. 512 US., at 481-82.

36. Id., at 482 (quotation, citation and ellipsis omitted). See also

id., at 487 (“[w]hen a state prisoner seeks damages in a §1983 suit, the

district court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence; if it

would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated.”) (emphasis added); id., at 487 n.7 (stating that a §1983 suit

for allegedly unreasonable search may proceed without regard to

“favorable termination” because such an action “would not necessarily

imply that the plaintiff's conviction was unlawful”); Edwards v. Balisok,

520 U.S. 641, 648 (1997) (holding §1983 claim not cognizable under

Heck because challenge to procedures used in revocation of good-time

credits amounted to challenge to sentence and plaintiff had not satisfied

Heck’s requirement).

14

CONCLUSION

For these reasons, the Court should deny the petition.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

MICHAEL T. MCCAUL

Deputy Attorney General

for Criminal Justice

GREGORY S. COLEMAN

Solicitor General

Counsel of Record

CHARLES K. ELDRED

Assistant Attorney General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

COUNSEL FOR RESPONDENTS