Baker v. Wade

Decision Date21 September 1984
Docket NumberNo. 82-1590,82-1590
Citation743 F.2d 236
PartiesDonald F. BAKER, Plaintiff-Appellee, v. Henry WADE, District Attorney of Dallas County, Texas, Etc., et al., Defendants, Danny E. Hill, 47th District Attorney, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

William Charles Bundren, Roderic G. Steakley, Dallas, Tex., for Hill.

Mark White, Atty. Gen. of Tex., Douglas M. Becker, Theresa Ann Kraatz, Asst. Attys. Gen., Austin, Tex., for State of Tex.

Donovan Campbell, Jr., Dallas, Tex., for amicus Doctors Against A.I.D.S.

James C. Barber, Dallas, Tex., for plaintiff-appellee.

Thomas J. Coleman, Jr., Houston, Tex., for amicus Texas Human Rights Foundation.

Abby R. Rubenfeld, Nan D. Hunter, New York City, for amicus Lambda Legal Defense & Educ. Fund, Inc.

Leonard Graff, San Francisco, Cal., for amicus Nat. Gay Rights Advocates.

Robert R. Murdoch, Los Angeles, Cal., for amicus Medical Advisory Council of Aids Project/Los Angeles.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, RUBIN and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

One who performs "deviate sexual intercourse" with another person of the same sex in Texas is guilty of a misdemeanor. A homosexual sued a class of all Texas district, county, and city attorneys, challenged the constitutionality of this statute, and the State, represented by Texas' Attorney General, intervened to defend the statute. After the district court, 553 F.Supp. 1121, held the statute unconstitutional as violating both the Texas and the United States constitutions, the State and the original class representatives declined to appeal. One class member, a Texas county attorney, moved to intervene as of right to prosecute this appeal. A motions panel granted his motion to intervene. Having now had the benefit of full briefing, and having more fully considered the matter, we hold that the aspiring appellant did not have the right to intervene and that the Attorney General of Texas, who chose not to appeal, properly represented the interests of the State. We, therefore, dismiss the appeal.


Donald F. Baker, a homosexual, sought a declaration that Sec. 21.06 of the Texas Penal Code is unconstitutional. The statute, captioned "Homosexual Conduct," provides:

A person commits an offense if he [or she] engages in deviate sexual intercourse with another individual of the same sex.

"Deviate sexual intercourse" is defined by statute, in pertinent part, as "any contact between any part of the genitals of one person and the mouth or anus of another person." 1 Violation of Sec. 21.06 is a "Class C misdemeanor," punishable only by "a fine not to exceed $200." 2 Adopted in 1974 as part of the first comprehensive reform of the state's criminal laws, 3 the statute proscribes both public 4 and private 5 homosexual conduct between consenting adults.

The complaint named as defendants Henry Wade, the District Attorney of Dallas County, and Lee Holt, City Attorney of Dallas, Texas; it also sought certification of a defendant class, under Fed.R.Civ.P. 23(b)(2), consisting of "all district, county and city attorneys in the State of Texas responsible for the enforcement of Texas Penal Code Ann. Sec. 21.06." After the State of Texas, represented by its Attorney General, intervened, defendant Holt advised approximately forty district, county, and city attorneys that, if they wished to intervene, they should do so "well in advance of the class certification hearing." Neither Hill's predecessor in office, Thomas A. Curtis, District Attorney of Potter County, Texas, nor any of the other attorneys who received notice chose to intervene. The parties then agreed that the defendant class was proper, and the court entered a consent certification order naming Holt and Wade as class representatives.

After a trial, the district court, in a comprehensive opinion, held Sec. 21.06 unconstitutional as a violation of Baker's fundamental right of privacy and his right to equal protection of the law. The court enjoined the defendants from enforcing the statute. The State of Texas filed a notice of appeal and then withdrew it, and neither of the class representatives appealed. Thereafter, Danny Hill, who had become District Attorney of Potter County, filed both a motion to set aside the judgment and to reopen the evidence, and a motion to intervene and to substitute class representatives. The Dallas Doctors Against AIDS, which was neither a named defendant nor a class member, also sought to intervene. The district court denied all of these motions. Hill later filed a petition for writ of mandamus in the Supreme Court of Texas in order to compel the Attorney General to appeal the district court's decision, but his petition was denied. A panel of this court then granted Hill's motion to intervene on appeal.

In addition to asserting the constitutionality of the statute, Hill attacks Baker's standing to sue and the justiciability of his claim. Baker counters that Hill should not be heard because his intervention is improper under Fed.R.Civ.P. 24(a)(2). The threshold question is the propriety of Hill's intervention. The failure of Hill's efforts to intervene would leave us without an appellant and consequently without authority to consider any of the other issues. Although the motions panel granted Hill's motion to intervene, its ruling was made without the benefit of complete briefing and without opportunity to consider the relationship of the aspirant intervenor's interest to the substantive issues in the case. Its ruling, therefore, is perforce provisional and may be reconsidered by the oral argument panel to which the case is assigned after complete briefing. The court may then on occasion reach a different conclusion, and it is free to follow the course chosen after receiving more complete information. 6


Hill sought to intervene under Fed.R.Civ.P. 24(a)(2). That provision bestows a right to intervene only if each of the following conditions is satisfied:

(1) the application for intervention must be timely;

(2) the applicant must have an interest relating to the property or transaction which is the subject of the action;

(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest;

(4) the applicant's interest must be inadequately represented by the existing parties to the suit. 7

If the applicant for intervention fails to establish any one of these requirements, then he may not intervene of right. 8 Hill contends that his official capacity as District Attorney for Potter County, his membership in the defendant class, and the failure of the class representatives to appeal justify his intervention on the ground of inadequate representation. Although Baker disputes the timeliness of Hill's post-judgment attempt to intervene, 9 we need address that issue only if the other three requirements for intervention of right are satisfied. Because the Attorney General of the State of Texas appeared on behalf of the State to defend the constitutionality of Sec. 21.06, and the class representatives also asserted its constitutionality, we first focus on whether Hill has demonstrated the existence of a personal interest that has not been adequately represented by the existing parties.

Although the 1966 amendment to Rule 24(a) liberalized the requirements for intervention as of right, the burden of establishing inadequate representation, however slight, remains on the applicant for intervention. 10 Even though this burden is satisfied if the applicant makes a minimal showing that representation of his interest may be inadequate, 11 "it cannot be treated as so minimal as to write the requirement out of the rule." 12 Thus, in this circuit, as in others, representation is presumed adequate unless the applicant alleges that the representatives engaged in collusion, nonfeasance, or had an interest antagonistic to his. 13 As we recently stated in Bush v. Viterna, "when the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance." 14 A presumption of adequate representation also arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee, 15 whether a citizen or a subdivision of the state seeks to intervene. 16

To assess both whether the presumption of adequacy was justified in this case and whether the Attorney General in fact adequately represented Hill's interest, we examine the nature of Hill's interest 17 and the interest of the State as represented by the Attorney General.

As an applicant for intervention, Hill must assert "an interest relating to the property or transaction which is the subject of the action" in order to satisfy the requirement of Rule 24(a)(2). This circuit requires the asserted interest to be direct, substantial, and legally protectable 18--"one which the substantive law requires as belonging to or being owned by the applicant." 19 Accordingly, the claim an applicant seeks intervention to assert must be one as to which he is the real party in interest under Fed.R.Civ.P. 17(a). 20 Hill's standing to participate, 21 and therefore the interest he may intervene to protect arises solely out of his official capacity as Potter County Attorney; the judgment binds him only in that role. 22 As a private person, he has no greater interest than any citizen of Texas, a private interest that would not support intervention. Hill's role as County Attorney, the duties of which are defined by state law, 23 circumscribes his official interest in this case.

In this attack on the facial unconstitutionality of a statute...

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11 cases
  • Baker v. Wade
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 26, 1985
    ...court's judgment. A panel of this court held that Hill did not have the right to intervene and prosecute the appeal. Baker v. Wade, 743 F.2d 236 (5th Cir.1984). We granted rehearing en banc and now hold that Hill is a proper appellant and that section 21.06 is 1. Jurisdiction Both Baker and......
  • City of El Cenizo v. State
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    • U.S. District Court — Western District of Texas
    • August 30, 2017
    ...challenge laws that would compel them to violate their oath of office. Allen , 392 U.S. at 241 n.5, 88 S.Ct. 1923 ; Baker v. Wade , 743 F.2d 236, 241 n.21 (5th Cir. 1984), on reh'g , 769 F.2d 289 (5th Cir. 1985), overruled on other grounds by Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472......
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