Perry v. Del Rio
| Decision Date | 19 October 2001 |
| Docket Number | No. 01-0997.,No. 01-1000.,No. 01-0990.,No. 01-0994.,No. 01-1002.,No. 01-0991.,No. 01-0998.,No. 01-0996.,No. 01-1001.,No. 01-0999.,No. 01-0993.,No. 01-0995.,No. 01-0988.,No. 01-0989.,No. 01-0992.,01-0988.,01-0989.,01-0990.,01-0991.,01-0992.,01-0993.,01-0994.,01-0995.,01-0996.,01-0997.,01-0998.,01-0999.,01-1000.,01-1001.,01-1002. |
| Citation | 67 S.W.3d 85 |
| Parties | Rick PERRY, in his official capacity as Governor of The State of Texas, and Henry Cuellar, in his official capacity as Secretary of State of The State of Texas, Appellants, v. Alicia DEL RIO, et al., Appellees. Alicia Del Rio, et al., Appellants, v. Rick Perry, in his official capacity as Governor of The State of Texas, and Henry Cuellar, in his official capacity as Secretary of State of The State of Texas, Appellees. |
| Court | Texas Supreme Court |
Philip A. Lionberger, David Mendez, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Julie Caruthers Parsley, Office of Sol. Gen., Lisa Royce Eskow, C. Robert Heath, Andy Taylor, Locke, Liddell & Sapp, John Cornyn, Atty. Gen., Austin, Jonathan D. Pauerstein, Karen Lee Johnson, Jonathan L. Snare, Loeffler Jonas Tuggey LLP, San Antonio, for appellant.
Nina Perales, Albert H. Kauffman, Leticia Marie Saucedo, Joseph Berra, San Antonio, Richard Warren Mithoff, Mithoff & Jacks, Houston, David Weiser, Kator, Parks & Weiser, Austin, Richard P. Hogan, Houston, Renea Hicks, Tommy Jacks, Mithoff & Jacks, Richard E. Gray, III, Robert Long, Houdyshell & Long, Austin, Philip P. Sudan, Jr., Ryan & Sudan, Houston for appellee.
This matter is yet another chapter in the 2000 congressional redistricting controversy. Governor Rick Perry and former Secretary of State Henry Cuellar (the State defendants), Susan Weddington, several congressional members, the Associated Republicans of Texas, and Charles Babb directly appeal the final judgment from a bench trial held in Travis County, Texas. We determine two issues:
• Does the Attorney General, under the separation-of-powers doctrine, have the authority to require the trial court to adopt his redistricting plan and render judgment that his plan is the baseline state court plan for the federal court redistricting proceedings?
• Did the trial court violate the parties' due course of law rights when it rendered a judgment based on a party's new plans not in evidence at trial without giving the parties an opportunity for a meaningful hearing?
We conclude that the Attorney General's assertion that he speaks for the Legislature and thus the trial court must adopt his plan violates the separation-of-powers doctrine. Moreover, under the facts here, we conclude that the manner in which the trial court rendered its judgment violated the parties' due course of law rights. Accordingly, we vacate the trial court's October 10, 2001 judgment and remand the case to the trial court for proceedings consistent with this opinion.
On September 10, 2001, this Court determined that the Travis County trial court had dominant jurisdiction to hear the plaintiffs' claims that, under the 2000 census, the existing Texas congressional districts are unconstitutional and that the trial court must adopt a new redistricting plan. Perry et al. v. Del Rio et al., 66 S.W.3d 239. Following our decision, the Travis County trial court set the case for trial beginning September 17, 2001. The trial court received evidence and heard testimony and arguments from all the parties about the various proposed congressional redistricting plans they urged the trial court to adopt. On September 28, 2001, the parties rested, closed, and presented arguments to the trial court.
On October 1, 2001, the trial court notified the parties that it was, on its own motion, appointing the Texas Legislative Council to act as the trial court's expert in deciding the issues in this case. The trial court issued an order to this effect and required the Texas Legislative Council's staff to maintain as confidential the trial court's dealings and communications with the staff. The State defendants objected to this order. They argued that not only was the trial court's order impermissible under the Texas Rules of Civil Procedure, but it also created a conflict of interest because the Texas Legislative Council's staff are the Lieutenant Governor's and Speaker of the House's employees.
Two days later, on October 3, 2001, the trial court entered an order announcing its intent to adopt Plan 1065C for Texas' congressional districts. The trial court attached Plan 1065C to the order and identified an Internet site where the parties could view the plan. Further, the trial court invited all parties to file comments, proposed changes, or requested modifications to this plan by October 9, 2001. The trial court also stated that it was preparing findings of fact and conclusions of law.
On October 9, 2001, the Democratic Congressional Interveners and the Del Rio and Cotera Plaintiffs filed objections to Plan 1065C. On that same day, Speaker Laney submitted proposed modifications to Plan 1065C and requested that the trial court incorporate his proposed new plans, different from those he offered during the trial, into Plan 1065C.
Sometime after 10:00 a.m. on October 10, 2001, the trial court notified the parties by facsimile that it was "seriously considering" adopting several changes Speaker Laney proposed. The trial court briefly explained the changes it was considering making to Plan 1065C and asked the parties to submit comments on these proposed changes by noon that day. Unlike its previous order identifying Plan 1065C as the proposed plan, the trial court did not attach a map showing what the new proposed plan looked like. Also, it did not refer the parties to an Internet site where they could view the plan.
Later that day, the trial court rendered its final judgment. And, rather than adopting Plan 1065C, the trial court adopted a new plan designated Plan 1089C. The trial court's judgment states that Plan 1089C incorporates certain proposals the parties submitted. Moreover, the trial court's judgment permanently enjoins further use of the existing thirty Texas congressional districts in any primary or general election.
Throughout the state-court proceedings, litigation has been pending in the United States District Court for the Eastern District of Texas (the "Tyler court") before a three-judge panel. But the Tyler court has deferred to the state court litigation, as Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), requires. It previously rescheduled its redistricting proceedings to begin on October 1, 2001, and ordered the parties to file any state court plan—which the Tyler court would use as a baseline for its redistricting trial—by that date. At the Travis County trial court's request, on October 1, the Tyler court extended the filing deadline until October 3. The Tyler court also ordered the parties to file expert reports and proposed exhibits and to submit statements of position by October 11 and 12, respectively.
However, after the trial court rendered its October 10 judgment that adopted a redistricting plan different from Plan 1065C, the Tyler court again extended its trial-schedule deadlines. In its October 11 order, the Tyler court recognized that when it set the October 11 and 12 deadlines, it had "not contemplated major changes to the state court plan [Plan 1065C] filed on October 3." But it concluded that Growe compels it to use Plan 1089C, rather than Plan 1065C, as a baseline state plan. Thus, the Tyler court ordered that it would continue its trial until October 22, 2001, and extended the deadlines for the parties to file their position statements and exhibits.
On October 12, 2001, the State defendants, whom the Attorney General has represented throughout the proceedings, perfected their direct appeal with this Court. On October 15, 2001, the Associated Republicans of Texas and Charles Babb perfected their appeal. On that day, after considering the parties' jurisdictional statements and objections, we noted probable jurisdiction under Rule 57 of the Texas Rules of Appellate Procedure and ordered the parties to file briefs on an expedited schedule. Then, on October 16, 2001, Susan Weddington, Chair of the Republican Party of Texas, and Congressmen Tom DeLay, Joe Barton, John Culberson, Sam Johnson, and Kevin Brady ("Congressman DeLay" collectively) perfected their direct appeal and moved to consolidate their appeal with the State defendants' appeal. We noted probable jurisdiction and granted the motion to consolidate. The Court heard oral arguments on October 18, 2001.
Our State's existing congressional redistricting plan is embodied in Article 197h of the Texas Revised Civil Statutes. In 1996, a federal district court held that three congressional districts in Article 197h were unconstitutional. Vera v. Bush, 933 F.Supp. 1341, 1347 (S.D.Tex.1996). The Vera court entered an interim remedial order that redrew the three districts to correct the constitutional infirmities. 933 F.Supp. at 1352. Because the Legislature never enacted a new plan, the federal court's remedial order and the unaffected districts in Article 197h remained in effect for future elections. See Vera v. Bush, 980 F.Supp. 251, 253 (S.D.Tex.1997). However, the 2000 census demonstrates that Texas is now entitled to two additional congressional delegates. Therefore, Texas' existing plan with thirty congressional districts is presumptively unconstitutional. See U.S. Const. amend. XIV, § 2.
This Court has direct-appeal jurisdiction from "an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state." Tex. Gov't.Code § 22.001(c); see Tex. Const. art. V, § 3-b. Here, the trial court's order enjoins parties from using the State's existing thirty congressional districts—which Article 197h and ...
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