                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                               No. 01-50301



ISMAEL LEGARRETA; ROBERTO M. LERMA;
FRED SANCHEZ, JR.; MAGDALENA C. LERMA; MANUEL G. LERMA;
MARIA J. MONTOYA; JESSIE WILLIAMSON;
MARGARITA GIRON SANCHEZ; ROSA D. CABALLERO;
SOCORRO ESPARZA; PEDRO ESPARZA;
TERESA LABORDE; MARGARITA M. GUERRERO;
VIRGINIA VALENCIA; HAILAR SOILS;
ANTONIO R. CAMPOS; GRISELDA Y. LERMA;
BEATRICE CAMPOS; MANUEL J. BARRAZA,
                                        Plaintiffs-Appellants,

                                   versus

JAMES NELSON, in his individual capacity
and his official capacity as Commissioner of
Education of the State of Texas;
LINDA MORA, in her official capacity as the Master
designated by the Texas Commissioner of Education
for the Ysleta Independent School District,
                                         Defendants-Appellees.




            Appeal from the United States District Court
                  For the Western District of Texas
                           (EP-01-CV-81-H)

                               March 7, 2002



Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.*

PER CURIAM:



     *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
     The Ysleta Independent School District in Texas is governed by

a seven-member board of trustees.           YISD had elections in May 2000

resulting in a majority Latino board.            On August 29, 2000, after

receiving a request from the board, the Commissioner of Education

for Texas, James Nelson, informed the board of his decision to

grant the request and appoint a master to govern the YISD pursuant

to Texas law.     The enabling legislation that gave the Commissioner

this power had previously been precleared by the Attorney General,

however    the   United   States    has    at   all   times   maintained   that

individual decisions to appoint masters must also be precleared.

The State of Texas had attempted to obtain “advance” preclearance

of these decisions through a suit in the District of Columbia, but

was ultimately rebuffed by the Supreme Court on ripeness grounds.1

     Under the Commissioner’s order the master would have the power

to approve or disapprove of any action of the board but no power

over elections or tax rates.         The master’s role would be reviewed

every 90 days.      After the first 90-day period, the master released

her first report on YISD, and the Commissioner continued her

appointment “indefinitely” and expanded the master’s authority.

     On March 6, 2001, residents of YISD filed a complaint in

district court against the Commissioner under § 5 of the Voting

Rights Act alleging that the decision to appoint a master must be




     1
         See Texas v. United States, 523 U.S. 296 (1998).

                                       2
precleared.2      The complaint also alleged that the appointment of

the   master   violated    state    law.3     The    plaintiffs    moved   for

designation of a three-judge panel, and the district court refused,

dismissing the case sua sponte without a responsive pleading and

without convening a three-judge panel.

      Given the present position of the case, we cannot say that the

claim is so insubstantial as to warrant dismissal by a single

judge.   We must vacate the order of dismissal and remand the case

to the district court with instructions to request the Chief Judge

to convene a three-judge court.        We express no opinion on the sole

question    the    three-judge     court    will    answer   –   whether   the

appointment was subject to preclearance.               It may be that the

question will be answerable without an evidentiary hearing, but

that decision belongs to the three-judge court.

      VACATED and REMANDED.




      2
        While the appointment of the master had been requested by the Board,
they became dissatisfied when the master demanded that the school
superintendent be retained over the objections of the Board.
      3
        The district court apparently also based its decision on the § 5
matter on the plaintiffs’ allegations that the appointment violated state law.
The State appears to have abandoned this defense of the district court’s
decision on appeal, as it does not appear in the briefing.


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