
    McCARTHY et al. v. BRISCOE, GOVERNOR OF TEXAS, et al.
    No. A-201.
    Decided September 14, 1976
   Mr. Justice Powell, Circuit Justice.

This application, for a partial stay of an order and judgment of a three-judge District Court for the Western District of Texas, reaches me during the summer recess of the Court. Following a practice utilized by other Justices and by myself on previous occasions, see, e. g., Graves v. Barnes, 405 U. S. 1201 (1972) (Powell, J., in chambers), I have consulted informally with each of my Brethren who was available. Although no other Justice has participated in the drafting of this order, I am authorized to say that each of those consulted would vote to deny the application for the reason stated below.

In denying injunctive relief to applicants, the three-judge District Court based its action not upon resolution of the merits of the constitutional claim presented (which it resolved in favor of applicants), but upon the equitable doctrine of laches. I conclude, therefore, that direct appeal to this Court does not lie under 28 U. S. C. § 1253, MTM, Inc. v. Baxley, 420 U. S. 799, 804 (1975), and that the Court is without jurisdiction to grant the relief now requested. Accordingly, the application for a stay is denied, but without prejudice to the right of applicants to seek relief in the Court of Appeals. 
      
      A11 Members of the Court, save two who were not available, have been consulted.
     