Perry v. Del Rio, 01-0728.

Citation66 S.W.3d 239
Decision Date12 September 2001
Docket NumberNo. 01-0827.,No. 01-0810.,No. 01-0728.,01-0728.,01-0810.,01-0827.
PartiesRick 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, Petitioners, v. Alicia DEL RIO, Phyllis Dunham, and Jeremy Wright, Respondents. 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, Petitioners, v. Martha Cotera, Respondent. In re Ken Bentsen, et al., Relators.
CourtSupreme Court of Texas

Renea Hicks, Attorney At Law, E. Leon Carter, Case Carter Salyers & Henry, David Weiser, Kator Parks & Weiser, Austin, for Respondents in Dkt. No. 01-0728.

Jan Soifer, E. Lee Parsley, Andy Taylor, Locke Liddell & Sapp, Austin, C. Robert Heath, David Mendez, Steve Bickerstaff, Bickerstaff Heath Smiley, Pollan, Kever & McDaniel, Austin, John Cornyn, Julie Caruthers Parsley, Philip A. Lionberger, Lisa Royce Eskow, Attorney Generals, Austin, for Petitioners in Dkt. No. 01-0810.

David Weiser, Kator Parks & Weiser, Austin, Richard E. Gray, III, Gray & Becker, Austin, for Respondent in Dkt. No. 01-0810.

Russell S. Post, Richard P. Hogan, Jennifer Bruch Hogan, Kevin H. Dubose, Roger Townsend, Hogan Dubose & Townsend, Houston, for Relator in Dkt. No. 01-0827.

George Irvin Terrell, Samuel W. Cooper, Kevin Thomas Jacobs, Baker Botts, L.L.P., Houston, E. Leon Carter, Barbara Kay Salyers, Case Carter Salyers & Henry, Dallas, for Respondent in Dkt. No. 01-0827.

Justice HECHT, delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice OWEN, Justice HANKINSON, Justice O'NEILL, Justice JEFFERSON, and Justice RODRIGUEZ joined.

Four cases challenging the constitutionality of the State's congressional districts in light of the 2000 decennial census, all involving essentially the same issues, parties, lawyers, and witnesses, were set for trial on the same day, September 10, 2001, two in a district court in Travis County1 and two in a district court in Harris County.2 Before us are two interlocutory appeals from the cases in Travis County, an original mandamus proceeding arising out of the cases in Harris County, and motions to stay the trials in all of the cases. The central dispute is over which of the two district courts has dominant jurisdiction and should proceed to trial first. We hold, for reasons that we explain, that the district court in Travis County has dominant jurisdiction and should proceed to trial immediately, and that the district court in Harris County should abate the cases pending there. We conditionally grant the petition for writ of mandamus in No. 01-0827 and dismiss the interlocutory appeals in No. 01-0728 and No. 01-0810 as moot. The stays we previously issued are lifted. Because of the importance of completing the trial with dispatch, no motions for rehearing will be entertained.3

I

The members of the United States House of Representatives must be "apportioned among the several States according to their respective numbers"4 as determined by the decennial census.5 As a result of the 2000 census, Texas is entitled to two additional congressional delegates, and thus the State's congressional districts must be redrawn. Although the United States Supreme Court has held "[f]rom the beginning" that redistricting "`is primarily a matter for legislative consideration and determination,'"6 the 77th Legislature this year adjourned its regular session without redrawing congressional districts, and the Governor has notified the presiding officers of that body that he will not reconvene it in special session to consider redistricting "at this time".7 It therefore falls to the courts—first the Texas courts and then those of the United States—to reconstruct the State's congressional districts.8 The federal courts must defer, but only for a reasonable time, and may set a deadline for state courts to act.9 That deadline, set by the United States District Court for the Eastern District of Texas in three of the five congressional redistricting cases filed in federal courts this year, is October 1, 2001, after which the federal court has stated that if no state redistricting plan is adopted it will proceed in its own cases to minimize the "risk of disrupting and delaying elections".10

Five congressional redistricting cases, all raising essentially the same issues, have been filed in Texas courts, three in Travis County by persons identified with the Democratic Party,11 and two in Harris County by persons identified with the Republican Party.12 The Legislature has not provided adequate procedures for judicial administration to prevent undesirable forum-shopping and provide a simple means for designating a single court and judge for trial of these issues, thereby saving taxpayers and litigants the unnecessary cost of multiple proceedings involving the same issues and preventing delay that could disrupt the 2002 elections. Therefore, we must attempt to apply general legal principles for determining dominant jurisdiction between competing trial courts to resolve the mounting disputes that threaten any final state-court resolution of congressional redistricting issues before the October 1 deadline. To do so, we must explain in some detail the procedural history of the pending cases.

The first case, Del Rio v. Perry, was filed in Travis County on December 27, 2000.13 At that time, no official census data was available—the U.S. Secretary of Commerce did not release preliminary state-by-state figures until the next day—but the plaintiffs14 asserted that estimates by the Texas Legislative Council15 showed that Texas would be apportioned two additional congressional seats. The plaintiffs acknowledged that "the appropriate opportunity" for correcting their complaints was in the regular legislative session that would convene January 9, 2001, but alleged that there was "reason to believe" that the Legislature would deadlock over a redistricting plan. The plaintiffs asserted that the trial court could act "[i]f the State of Texas fails to enact a new congressional redistricting plan in the 2001 session, or if it enacts one that is legally inadequate". The plaintiffs named as defendants the State of Texas, the Governor, the presiding officers of the Senate and House of Representatives, the Secretary of State, and the chairs of the Texas Democratic Party and the Texas Republican Party. All of the defendants except the Democratic Party chair filed pleas to the jurisdiction, asserting that the case was not ripe when it was filed and therefore the court lacked subject matter jurisdiction. The Democratic Party chair filed a plea in abatement, urging that the action be left pending in the event that judicial action should become warranted.

The detailed census data necessary for redistricting was not released until March 12, 2001. Prior to that date, three congressional redistricting cases had been filed in federal courts.16 Each of these cases was dismissed for lack of ripeness necessary for jurisdiction because the Legislature had not had an opportunity to adopt a redistricting plan.17 In one of the cases, dismissed on May 8, the federal court stated that "there is no threat that the Texas Legislature will fail to enact valid redistricting plans before the next election cycle begins."18 That same day, however, the Del Rio plaintiffs amended their petition to allege that although the Legislature had full access to the necessary census data, "there is reason to believe that the State of Texas will deadlock over congressional redistricting and fail to enact a new plan in the regular session of the Texas Legislature that is now in progress." The plaintiffs alleged that no congressional redistricting bills had been reported out of committee, and that House rules set May 10 as the last day for the House to pass its own bills and May 18 as the last day for the House to receive Senate bills. "For all practical purposes," the plaintiffs asserted, it was "a near-certainty" that the Legislature would fail to redraw congressional districts during its regular session.

On May 15, the district court in Del Rio heard the defendants' pleas to the jurisdiction (excluding Speaker Laney's) but did not announce a decision. On May 24, four days before the adjournment of the Legislature, the second state redistricting case, Associated Republicans of Texas v. Cuellar,19 was filed in Harris County. The petition alleged that "[d]ue to the rules of the Texas Legislature," it was "almost certain that no redistricting plan of any kind will be passed by the Texas Legislature in its regular session." The petition did not address, however, whether the rules of the House and Senate could be suspended to permit last-minute consideration of a congressional redistricting plan.20 While the plaintiffs acknowledged that it remained uncertain whether the Governor would convene a special session of the Legislature, they asserted that it was unlikely because there was "no sign that the Texas Legislature could produce a plan in a special session." Two days later, Governor Perry wrote to Lieutenant Governor Ratliff and Speaker Laney, urging that the Legislature continue to work on redistricting after the regular session, and stating that he would call a special session once acceptable plans were produced.21

On May 28, the Legislature adjourned sine die without having adopted a redistricting plan for the congressional delegation, the Senate, the House, or the State Board of Education. Three days later, on May 31, the plaintiffs in Del Rio...

To continue reading

Request your trial
245 cases
  • In re Prudential Ins. Co. of America, 02-0690.
    • United States
    • Supreme Court of Texas
    • April 2, 2003
    ...... Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex.2001); Walker, 827 S.W.2d at 842; Canadian Helicopters, ......
  • Zaatari v. City of Austin
    • United States
    • Court of Appeals of Texas
    • November 27, 2019
    ......Ripeness is "peculiarly a question of timing." Perry v. Del Rio , 66 S.W.3d 239, 249–51 (Tex. 2001) (quoting Regional Rail Reorganization Act Cases ......
  • In re Allstate Fire & Cas. Ins. Co.
    • United States
    • Court of Appeals of Texas
    • January 7, 2021
    ...... In re Perry , No. 13-18-00676-CV, 2019 WL 1723509, *8 (Tex. App.—Corpus Christi-Edinburg Apr. 18, 2019, ...Gerstner , 232 S.W.3d 117, 124 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) ; In re Rio Grande Valley Gas Co. , 987 S.W.2d 167, 176 (Tex. App.—Corpus Christi 1999, orig. proceeding) ; ......
  • Hagen v. Hagen, 07-1065.
    • United States
    • Supreme Court of Texas
    • May 1, 2009
    ....... 20. Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001) (quoting 13 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & ......
  • Request a trial to view additional results
2 books & journal articles
  • A Shared Existence: the Current Compatibility of the Equal Protection Clause and Section 5 of the Voting Rights Act
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 88, 2021
    • Invalid date
    ...2001) (alleging that the 2000 census showed that the current state senate and house districts were malapportioned); Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) (same allegations, also dismissed on standing 255. 571 S.E.2d 100 (Va. 2003). 256. See West v. Gilmore, 2002 Va. Cir. LEXIS 37 (Va.......
  • CHAPTER 8 Staying Execution and Superseding the Judgment
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...Tex. Civ. Prac. & Rem. Code § 51.014(b).[15] Tex. Civ. Prac. & Rem. Code § 51.014(b).[16] Tex. R. App. P. 29.5(b); Perry v. Del Rio, 66 S.W.3d 239, 259 (Tex. 2001).[17] Rule 29.2 expressly permits supersedeas in interlocutory orders granting relief. Tex. R. App. P. 29 cmt. 1. The predecesso......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT