*1
State,
Grogen
OPINION ON MOTION
See
ters are considered Court. presently
The matters being addressed are “Appellees’ Response Opposition to Merrell’s Appellees’ Motion Rehearing En RICHARDS, Texas, Ann Governor Reconsideration,” Banc “Appellant’s Motion Kelly Robert I. and Debbie Response” “Appellees’ Strike such Irvine, Appellants, Response Response.” to the by appellees pres- two documents filed ently being addressed contain neither an Guadalupe MENA, Gomez, Maria Zulema record, analysis of the trial a discussion of Hernandez, Angel Garcia, Chayo Juan issues, any legal citations to Zaldivar, Alonzo, Flores Robert R. Pa authority. charge The documents conduct Roybal Sutton, Kennard, tricia José R. that, true, if constitutes clear violations of the Redistricting, El Paso Coalition for Fair Code of Judicial language Conduct. The Augustin Negrete, Benjamin Menchaca, being the two documents insult- considered is Arriola, Gonzalez, Richard Saul Marc ing, disrespectful, unprofessional. In ad- Campos, Camarillo, Leonardo Lalo Arc dition, the first of such documents reflects uate, Salinas, Cavazos, Beto Ramiro Hilliard, provid- Robert C. in addition to Edgar Ruiz, Appellees. ing other copy counsel the case with a No. 13-92-100 CV. document, also, for reasons which can nothing have to do with this Court’s consid- Texas, Appeals Court of ease, eration of copies issue sent Corpus Christi. jury”1 the documents to “our in the ease. May 11, 1995. Appellant’s counsel moved to strike the Rehearing Sept. Overruled first being stating, document considered among things, other that the document “is
unprofessional and outside the rules of this agree appellant’s
Court.” We assess- granted ment and such motion is as to both documents. addition,
In as we believe that these docu- ments evidence a violation of the Texas Disci-
plinary Rules of Professional Conduct that question raises a substantial as to the law- trustworthiness, fitness, yer’s honesty, accordance with Texas Code of Judicial Con-
duct, 3(D)(2), forwarding cop- Canon we are ies of these documents to the Office
General Counsel of the State Bar Texas. 1. Mr. Hilliard's term. *2 371 and 848
See also S.W.2d *3 Hicks, Special
Renea Attorney Assistant General, Austin, Guajardo, Javier Special As- General, Attorney Austin, sistant Dan Mor- ales, General, Attorney Austin, Pryor, Will General, Attorney Austin, First Assistant Keller, Mary Deputy F. Attorney Assistant General, Austin, appellants.
Alejandro Moreno, Jr., Edinburg, Travis Hiester, Hall, McAllen, Atlas & James C. Harrington, Austin, Austin, Bagley, Judith Sanders-Castro, Antonio, Judith San Jose Garza, Antonio, San McCLOUD, C.J.,
Before and BURGESS ANDELL, JJ.1
OPINION
BURGESS, Justice. appeal
This propriety involves the of attor- neys’ in redistrieting voting rights non-jury case. In a perma- trial the court nently enjoined legislative use of the 1991 redistrieting enactments the Texas House of Representatives and the Texas Senate. An agreed judgment except settled all issues appellees’ attorney By sixteen error, the State contends the trial court by awarding attorney against erred State.
Originally, appellees, the Mexican Ameri- Legal can Defense and Educational Fund (MALDEF), Rights Project the Texas Civil (TCRP), and Legal the Texas Rural Aid (TRLA), Fund on behalf of thirteen Mexi- can-Americans and El Paso Coalition for Redistrieting, Fair voting rights community organization, prevent sued to Texas officials 1. Assigned pursuant Supp.1995). to Tex.Gov’t Code Ann. 74.003(a), (b) 75.002(a)(1) (Vernon §§ & 1988 & or a legislative employee state using figures An officer census redistricting acting who is purposes. Appellees political claimed vi- state subdivision capacity Bill of olations of Texas Constitution’s in an official purporting act Rights statutory provisions. not, race, religion, and other person’s of a because color, sex, impose un- origin, or national Legislature passed HB-150 SB- person. on the reasonable burden TexCiv. Representatives House Texas Sen- (Ver- 106.001(a)(6) Ann. Prao. & Rem.Code redistricting plans. then ate 1986). person or there non If a has violated claiming newly their amended lawsuit grounds person to believe are reasonable legislation illegally enacted and unconstitu- 106.001, person about violate section tionally against Mexican- discriminated by the violation or threatened vio- aggrieved Americans. *4 relief, may including for preventive lation sue hearing, After a the trial court entered a injunction. temporary a permanent or Tex. injunction, partial summary temporary judg- 106.002(a) § Ann. CrvPRAC. & Rem.Code ment, declaratory invalidating the relief (Vernon 1986). Additionally, may the court plans ordering House and Senate the party, the other the prevailing than award develop redistricting plans, new ad- State state, attorneys’ part fees as of reasonable justing the for census undercount. costs. Tex.Civ.PRAC. & Rem.Code the Ann. impending pri- of 1992 Because the March 106.002(b) (Vernon 1986). Thus, § section Richards, maries, suit, Quiroz a second v. 106.002(b) express for an waiver of provides complaining was filed about the Senate redis- immunity governmental to those the State’s tricting agreed plan. An final was prohibited in acts listed section 106.001. enjoining implementation entered of SB-31 Quiroz replacing it plan, which Initially, does not chal- we note the State provided redistricting. a different method of lenge finding court’s that the House trial Quiroz plan The same was entered and imposed bills an unreasonable and Senate Quiroz adopted Entering in this ease. upon appellees. argues burden The State only plan partial settlement of this chapter all-purpose is not antidiscrim- 106 an case reapportionment because the House statute, governmen- of ination thus no waiver Later, plan dispute. remained in in immunity tal fees and costs case, judge signed agreed the trial an final redistricting cause of action. The ar- judgment enjoining appellants from im- racially gues discrimi- unintentional plementing ordering HB-150 and House redistricting natory legislation of impact plan. under elections a different discriminatory type act is not the ad- 106.001(a)(6)whereby in section sov- 8, 1992, dressed Legislature, January The on 106.002(b). immunity session, ereign is HB-1, waived special passed SB-1 and Sen- authority, citing Without the State contends redistricting plans ate and House identical section Quiroz prohibited acts referred to in approved those the trial 106.001(a)(6) not, acts, only are intentional judge in this case. ease, racially dis- this the unintentional State, through its various criminatory impact Legislature’s of the redis- issues; error, actually only two raises tricting legislation. availability attorneys’ for the evidentiary plaintiffs and the basis respond Appellees that the use of HB-150 award. prohibited are acts and SB-31 within the 106.001(a)(6). contemplated by first determined an issue is they pleaded contend that because interpretation scope waiver of the use of HB-150 and SB-31 held immunity governmental under Texas Civil underlying cen- Code, redistricting plans and their chapter Practice and Remedies on imposed data an unreasonable burden sus contends the trial court erred be rights of Mexican-American voters be- chapter governmen cause 106 does not waive color, race, origin, or national immunity payment for the cause their tal assert, therefore, They chapter applies. fees. 106 the trial political court acted within its discretion the state subdivision of the attorney’s state, [or]; when their ... interpreting When statutes (7) to, grant refuse to a benefit or im-
bound principles. three is im The State pose upon, per- unreasonable burden liability except mune from son, race, person’s religion, because of the immunity when that statu waived clear .... origin; color national Univ., tory language. Lowe v. Texas Tech (Tex.1976); Dept. 540 S.W.2d Texas (7) 6252-16, 1(a)(1),(2),(5) Former art. & Human Services Methodist Retirement (Vernon 1970). Leg., 60th See Acts Services, Inc., 763 S.W.2d R.S., ch. 1967 Tex.Gen.Laws 138. writ). must Statutes — Austin provided Former article 6252-16 also as a interpreted give legisla be as to so effect to preventive remedy specifically relief includ- Knight tive intent. Har International injunctive ing relief. article Former 6252-16 Corp., vester Credit 1970). (Vernon Additionally, § 2 section two (Tex.1982). A statute must be as a read court, discretion, provided that the in its interpreted give every whole and effect aggrieved party costs award and a rea- Pruitt, part. parte Ex part sonable fee as the costs from *5 (Tex.1977). 1971, Legislature In the state. Id. the add- The State contends section 106.001 refers 1971, protected category. as a ed “sex” Acts primarily by to acts discrimination the Leg.R.S., 989, eh. 62nd 1971 Tex.Gen.Laws government employment in situations. How 1983, passed Legislature 2994. In the the ever, appeals the Austin court of a addressed Rights on Human Act and Commission re- summary judgment involving alleged case an pealed recodifying provi- article 6252-16 its 106.001(a)(6) prohibited act under which chapter 106 of Texas Civil Prac- sions as the employment not related to an issue. See 1983, tice Remedies Acts 68th Code. Dist., Toungate Bastrop Indep. School C.S., 32, Leg., 1st 1983 Tex.Gen.Laws 57. writ). 1992, (Tex.App. S.W.2d 823 no — Austin applying principles When the three of stat- Toungate plaintiff complained The about the construction, utory legislative giving effect to school district’s assessment of iii-school sus reading intent and the statute as a whole pension violating length for the district’s hair giving every part to effect conclude that policy. Toungate The court reversed the contemplated the acts here are within those summary judgment concluding that an issue 106.001(a)(6). by section The State’s actions of fact existed about whether the school dis prohibited in this ease are acts such as envi- placed trict’s acts burden unreasonable 106.001(a)(6). in section sioned State’s upon plaintiff. the 106.002(b). immunity is waived under We 6252-16, Legislature enacted article appellant’s point of error. overrule third Be- predecessor chapter the to 106 of the Civil conclude State cause we that the waived its Code, in In Practice and Remedies immunity chapter under we decline to provisions related article 6252-16 read as appellant’s error address one and follows: they necessary disposition two as are not (a) employee Tex.RApp.P. No 90(a). Section 1. officer or of the case. political the state or of a subdivision By through eight, points five the State state, acting or act in purporting when the trial court erred as a matter asserts that may: his capacity, official by awarding attorney fees and costs law (1) ...; employ person refuse to 1) in challenging the senate redis- incurred (2) discharge person employment from 2) 7, 1991, plan, February tricting from 17, 1991, portion and on
June the the litigation congressional related to and board (5) 3) permit work in person redistricting, refuse to use of education extrane- settlement, owned, open public litigation to the and this after facilities ous case 4) operated, managed by expert expenses fees and or on behalf witness witnesses, the Appellees argue these address as of costs. We will part directly by the trial although appointed individually. effect, were, court-appointed experts court 1 is until The State contends that S.B. as properly assessed fees were and thus their appellees yet re implemented have not experts allege three Appellees costs. and, thus, trial tangible benefit ceived redistricting data analyzed interpreted attorney improperly fees court awarded as as trial by parties, all well upon relied Appellees assert related work. the ex argue that since Appellees court. invalidating HB- relief gave them entered of all performed duties on behalf perts their ordering HB-1 150 and SB-31 and effect, they, parties and the into effect. SB-1 experts. court-appointed acted as agree appellees and conclude any evidence never offered awarding at- the court was not barred testimony. Addi- experts’ appellees’ rebut pertaining to the sen- torney fees and costs January tionally, during hear- redistricting plan. ate succeeded plans analysis ing, the used pro- thus invalidating HB-150 and SB-30 experts. We developed by appellees’ viding a benefit. to the sums objection no the State find expert fees appellees fees submitted The State also contends February trial court. We find and costs before the and costs incurred between expert fees award of not have error court’s and June should through points five they incurred We overrule because were as costs. been awarded eight. appellees challenging were the board while redistricting plans. We find such education trial court nine contends the Point hearing nor complaint at improperly awarded *6 January hearing final 1992. at the on appearing on Heister’s work in for Travis complains the trial court The State next Judge Hidalgo County and the behalf of erroneously attorney fees and costs awarded argues The the Court. Commissioners relat- post-settlement for work and for work county court is a “creature commissioners litigation ed other than this lawsuit. to specifically as barred the state” and such segregate at- appellees asserts did not receiving attorney fees under Texas again, torney litigation. this Once fees for Code, section and Remedies Civil Practice trial complaint we find no made before the 106.002(b). respond that Hiester segregating court about fees behalf of the residents Hidal- appeared on different lawsuits. go County. im- asserts the trial court The State next legal are subdivisions Counties expert appellees’ witness
properly awarded Const, § IX 1. In action art. State. Tex. com- Specifically, costs. the State fees as the attorney fees under section 106.002 fees plains about the court’s award so party recover prevailing Brischetto, appellees to for Dr. Robert the prevailing party. the long as state is not the George Dr. Allan Lichtman and Korbel. 106.002(b) & Rem.Code Ann. Tex.Civ.PRAc. 1986). (Vernon Generally, prevailing party the will county find assertion not all We do recover court costs. Tex.R.Civ.P. they appeared shown, judge or commissioners any good costs Regardless cause county Hidalgo representatives of citizens. prepara experts expenses are incidental judge cannot county and commissioners trial not recoverable. See Whit tion for (Tex.Civ. attorney fees under section ley King, be awarded v. writ) 106.002(b). as a matter The trial court erred (expert was App. Worth — Fort appellees awarding court-appointed his duties of law in performed point attorney fees. sustain We plaintiffs therefore Hiester’s solely on behalf appellees the award to authority his ex nine and reverse to assess court without costs). $20,518.15 services. for Hiester’s penses as ten, By point represented Hidalgo County the State asserts that Hiester paralegal Judge County all fees should be denied as a mat Commissioners who were originally named specific appellees’ ter of law. note no as defendants in We amount original petition. county judge awarded to per for costs of work responded, commissioners and in their first paralegals. formed performed The work (at brought amended answer cross-action paralegals properly included rate) against the Director and the Di- Executive product. reduced in the work Legislative rector of the Council. Addition- We overrule ten. ally, judge county and commissioners eleven, By point the State asserts pleading, adopted paragraphs this one that the trial court erred attor through forty-three appellees’ original pe- ney fees and costs because the recitations in following tition. also language note the judgment were insufficient as a matter of original in the States’ first amended answer support judgment. non-jury law to In a appellees’ peti- original second amended trial, findings where no of-fact or conclusions tion: requested, implied of law are filed it is Thus, being there no other real defen- that the trial all necessary court made (the county dants in this action defendants findings support judgment. its Roberson having formally informally aligned Robinson, (Tex.1989). completely plain- themselves with the Furthermore, request the failure to addition _ tiffs), findings al fact of law conclusions By appears this statement it con- the State appeal constitutes a on waiver of the trial county judge cedes the and commissioners particular finding. court’s failure to make a However State takes a Keith, Keith Court, contrary position in their brief to this writ). Worth — Fort by asserting following: Although Hidalgo County Commission- request any specif The State did not plaintiff ers was treated Court as a in the findings ic of law conclusions after the below, plaintiffs never took judgment. trial court’s See Tex.R.Civ.P. procedural simple step officially realign 296-298. ap The trial court’s on Procedurally, the commissioners court. peal upheld will be it can unless be shown (and the commissioners court the commis- support any the evidence does not *7 sioners) always have been and still are Wharton, West, theory. Point Lookout Inc. v. defendants. 277, (Tex.1987). 42 S.W.2d 279 We find 7 county judge and in commissioners were the recitations were not plaintiffs during treated as the course insufficient of support as a matter of law to Therefore, proceedings. Hiester was an at- judgment. We overrule eleven. torney evidentiary must now consider the appellees When the called Korbel and foundation for the award. during hearing Hiester the November 1991 asserts the trial court fees, testify attorney the State ob- about allowing George erred Korbel and Travis jected they designated timely that were not testify attorney Spe Hiester about experts. Appellees then asserted that cifically, the State contends that Korbel and while, perhaps, they designated had not Kor- properly designated Hiester were not as ex experts, they desig- bel and Hiester as had pert witnesses before trial accordance with nated as fact witnesses. The them 166b(2)(e)(l), Texas Rules of Civil Procedure conceded as much. 215(5). 166b(6)(b) and many eourt The trial admitted exhibits ad- litigation dressing appellees’ attorney Korbel is director election of fees without ob- Legal jection. for Texas Rural Aid. He was asked Korbel and at Hiester testified great length to examine the House and Sen- about their fees. Kor- plans compare ate redistricting and them bel and Hiester established that this case existing plans apportionment. significant They with the of involved a amount of work.
573 with sections have dealt Several cases great about the total number went into detail predeces- 38.001, 38.004 and their 38.003 and expended by persons in their law of hours sor, 2226, (repealed). Tex.Rev.Civ.Stat. clerks, art. including lawyers, and as- office hourly per- these sistants and rates Czeschin, 643, 632 S.W.2d Holsworth They type per- of work sons. outlined the 1982, no (Tex.App —Corpus Christi 645 . necessity of the formed in the case and 693, writ), Wolfe, 697-98 Ho v. 688 S.W.2d Additionally, they about fees work. testified ( writ), were Tex.App. no — Amarillo they usually litigation. Al- collect similar “The provided: usual 2226 which eases under cross-examined, though they their testi- were customary in such cases shall be In mony not the State." was rebutted reasonable, presump but the presumed to be detailed, abundant, light and relevant of the by competent evidence. may tion be rebutted presented Korbel factual evidence ... In before the court proceeding fees, it was Hiester on issue judicial knowledge may court take testimony as fact to admit their error customary fees in such matters usual and witnesses. file, without the contents of case receiving Inwood Dad’s other evidence.” If the reasonableness Dist., Aldine 882 S.W.2d Club v. School by competent supported fees must be evi Dist.] no (Tex.App [1st . —Houston Groves, City dence. Fart Worth v. See Appellant writ), delinquent tax suit. was (Tex.App. Worth — Fort brought argued had forth the district writ) Espinoza (citing v. Victoria attorney’s rea that the fees were evidence Co., Bank Trust 572 S.W.2d & trial court was The court held “The sonable. 1978, writ Civ.App. Corpus Christi ref'd — judicial of the usual to take notice entitled n.r.e.), none then there is on issue. attorney’s customary without However, appellees argue Tex.Civ.Prac. evidence,” citing v. 3D Tow Ross additional (Vernon 1986) § can 38.004 & Rem.Code Ann. er, Ltd, (Tex.App. litigation, be the lack of used thus denied). 1992, writ [14th Dist.] —Houston testimony on the reasonableness issue Ltd., a turnover stat v. 3D Tower was Ross 38.004, is not fatal. Section entitled Judicial ute case. Tex.Civ.PeaC. & Rem.Code ANN. Notice, states: (Vernon 1986). underly Since 31.002 judicial take notice of the 38.001, Carlyle ing governed case customary attorney’s fees usual and Leibman, 230, 233 Real Estate receiv- contents the case file without 1989, no Dist.] (Tex.App [1st . —Houston (1) ing proceeding in: further evidence 38.001, writ), applied 38.004 held 38.003 and (2) jury before the court or case which to turnover statute action. the amount fees is submitted alone, 38.004, standing has been Section by agreement. to the court justification for in several instances as used Matelski, 840 *8 solely attorney’s fees. Matelski v. deals “usual and This section 124, fees”; (Tex.App Worth 130 customary attorney’s not with rea- S.W.2d . —Fort writ), modify 1992, to involved motion speaks to no issue. Section 38.003 sonableness clarify Mrs. Matelski and a divorce decree. presumed and “It that that issue states: attorney’s litigation. in the was customary for a claim of awarded the usual and testimony argued there no Mr. Matelski was type in section 38.001 rea- described attorney’s fees found the amount of presumption be rebut- that sonable. The court Therefore, court reasonable. the trial was section 38.004 allows a ted.” and could file judicial the trial court review notice the “usual and held court to take of of judicial notice of amount reason attorney’s customary fees” while section take fees, citing attorney’s 38.004. General presumption of “reason- able 38.003 creates the 817 Higginbotham, Acc. S.W.2d brought v. in a claim under section ableness” Life 1991, 830, writ (Tex.App Worth standing alone 833 does 38.001. Section 38.004 . —Fort denied), to set aside involved the failure any statutory prov- provide not assistance Court judgment. The Fort Worth default ing the “reasonableness” issue. 574 Kidd, applied Matter ing paralegal 38.004. Estate We need address this of 356, 812 359 (Tex.App. disposition point S.W.2d of our because ten. — Amarillo 1991, denied), discovery writ was a sanction appel- reverse and award to render the Although issue in a was will contest. it not a Hiester, lees fees for T. reverse 38.001, upon suit under the court relied and remand the award of fees for J. 38.004(2) and 38.003. The court Ho v. cited Sanders-Castro, Harrington, J. and J. Garza Wolfe, 697-98, 688 at S.W.2d and Holsworth and affirm the remainder. Czeschin, 645, authority. v. 632 S.W.2d at ' REVERSED AND RENDERED IN All of eases fail appreciate these to PART; REVERSED AND REMANDED article 2226 was divided into 38.004 PART; AFFIRMED PART. IN IN
38.003,
relating directly
-with
to
38.003
38.001.
Consequently,
justi-
38.004 cannot be used
McCloud,
(Retired),
Chief Justice
fy
reasonableness
fees and
concurring
dissenting.
38.003 cannot
used
be
outside of
38.001
part
part.
I
concur
and dissent in
I
action.
except
agree
majority
with the
as to the
arguably
case which
There is one
could be
affirming of the trial court’s award as costs
justify appellees’
used
position.
White v.
expert
witnesses’ fees to
Dr.
Payne,
727,
(Tex.App.
728
Brischetto,
Lichtman,
Robert
Dr. Allan
1991,
denied),
Dist.]
—Houston
writ
was a
[1st
George
experts
Korbel. None of these
were
declaratory judgment case
37.009.
under
They
appointed
designat
the court.
were
The court used the abuse of
stan
discretion
ed
and testified on
behalf
applied
Tanglewood
dard
Assn. v.
Homes
The trial court
erred
these sub
Henke,
39,
(Tex.App
728
44
S.W.2d
against
stantial fees as court
costs
State.
. —Hous
n.r.e.).
1987,
ton
writ
[1st Dist.]
ref'd
When
Acker,
750,
(Tex.
King v.
755
prove
faced
failing
with the contention of
1987,
writ);
no
[1st Dist.]
— Houston
fees,
necessary attorneys’
reasonable and
King,
v.
Whitley
581
544
S.W.2d
testimony
used
at
1979, writ);
Civ.App
City
Worth
. —Fort
hearing
the default
which stated
had ex
he
Biggers,
S.W.2d
Houston
705
pended
community
at
hours
the standard
(Tex.Civ.App.
writ
ref'd
— Houston
n.r.e.),
denied,
fee of 200 an
The court
was
hour.
held there
cert.
380 U.S.
S.Ct.
(1965);
“nothing
suggest
this amount
unrea
factual authority decline to this case as utilize instance. HERZING, Appellants, al., Don et evidentiary being
There foundation reasonable, attorneys’ fees awarded were four, twelve, we sustain error thir- LIFE METROPOLITAN INSURANCE teen and fourteen. Metropolitan Insurance COMPANY Annuity Company, al., Appellees. et fees, Regarding witness No. 13-93-394-CV. all of rea Korbel testified their hours were *9 necessary. Again, sonable and find no Texas, Appeals Court of testimony. After evidence to refute Korbel’s Corpus Christi. determining trial court Kor- could award June 1995. fees, bel’s we find abuse of discretion Rehearing Sept. Overruled the trial court’s rate and amount. We overrule fifteen. sixteen,
By point complains the State the trial court abused its discretion in award-