Art Brender, Chairman of the Tarrant County Democratic Party, has issued a statement clarifying the eligibility of Wendy Davis' candidacy for State Senate District 10.
At about 2:30 p.m., on December 31, 2007, I received a challenge from three Fort Worth Firefighters, pursuant to the Texas Election Code, claiming that Wendy Davis who had filed as a candidate in the 2008 Democratic Primary for State Senate District 10 was ineligible for the office pursuant to Art. III, § 19, of the Texas Constitution, which provides as follows:
No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.
This provision has resulted in a landmark decision here, in Tarrant County, that resulted in former State Senator and State Representative Doyle Willis being excluded from seeking election to this same Senate seat in 1964, In Willis v. Potts, the Texas Supreme Court strictly construed this section of the Texas Constitution and excluded Doyle Willis as a candidate despite his resigning from the Fort Worth City Council. In 1982, Woodie Woods, Mayor of Fort Worth, was excluding from the ballot in his attempt to run as Republican Senator in Senate District 12 by this same provision. In 1992, a decision by the Texas Supreme Court, Wentworth v. Myer, 339 S.W.2d 766 (Tex. 1992), modified the ruling in Willis v. Potts. Wentworth involved another challenge to a Texas Senate seat where the nominee, Jeff Wentworth, had resigned his position on the Board of Regents, but had not sought or been subject to the holdover provisions contained in Art. XVII, § 17, of the Texas Constitution. This provision provides that an office holder who resigns his or her office continues to serve until a successor has qualified to hold the office.
On New Year's Eve, three firefighters who vote in the Democratic primaries, made a citizen's challenge, as permitted by the Texas Election Code, to Wendy Davis as a Democratic nominee to the State Senate District 10. The firefighters claimed that Wendy Davis had not resigned as that term is defined under the Texas Constitution, since she had continued to serve on the Fort Worth City Council and received a weekly salary after she had filed as a candidate for the Texas State Senate. The effect of remaining as a holdover candidate and continuing to serve in that capacity was specifically exempted from the Supreme Court decision in the Wentworth case. I have thoroughly researched this matter and consulted, as I am required to do, with the Secretary of State's Office, for an opinion concerning whether or not any Court since 1992 has decided this issue. I am advised by the Secretary of State, as well as by my own research, that this issue has not been addressed by the Texas appellate courts since the Wentworth decision. Since decisions to determine the eligibility of the candidate must be strictly construed AGAINST INELIGIBILITY, I have followed the law strictly and to the letter and have declared this date that Wendy Davis is eligible to run as a candidate in the 2008 Democratic Primary for the position of State Senate District 10. A copy of my decision follows this announcement.
A number of inquiries have been posed by Democrats since this challenge was presented and discussed in the news media. Under the Texas Election Code, if a candidate is declared ineligible to serve in an office by order of a court prior to the 74th day before the General Election, the Executive Committee of the Party whose candidate is disqualified may replace that candidate.
At this time, there has been no lawsuit filed to determine this issue. I am hopeful that none will be. In many instances over the past twelve years I have served as your County Chair, I have represented the Party's and its candidates in challenging the eligibility of Republican candidates, such as Representative Bill Zedler. In this instance, however, I am the official actually making the decision, under the Election Code. Thus, I will not serve as an attorney in the event of any legal challenge to my decision to declare Wendy Davis an eligible candidate. That duty would be undertaken by the Secretary of State's Office and/or the Texas Attorney General's Office. My connection with this matter has officially ended with this decision. Any defense of my decision will be undertaken by the Texas Attorney General or the Secretary of State......