By Matt Smith/msmith@trcle.com
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State Sen. Brian Birdwell (R-Granbury) filed a response Thursday to what he termed a “politically driven lawsuit filed by the Texas Democratic Party.”
Both Republican and Democratic opponents have questioned Birdwell’s residency and eligibility to hold Texas office since he entered the race earlier this year.
Birdwell has continuously denied such allegations going so far as to seek — and receive — a declaratory judgment on the matter. Senior Judge William Brigham declared Birdwell a Texas resident since 1973 in that case.
Allegations subsequently arose that Birdwell voted twice in the 2004 presidential election, once in Virginia and again in Texas. Another claim states that Birdwell voted in Virginia in 2006 and is therefore not qualified to hold a seat on the Texas Legislature.
The Texas Democratic Party and John Cullar, Birdwell’s opponent in the November election, filed an emergency petition with the 5th Court of Appeals in Dallas last week seeking to have Birdwell declared ineligible to remain on the November ballot.
Birdwell became District 22’s state senator in June when he defeated fellow Republican David Sibley in a special election runoff, which became necessary when Kip Averitt resigned the seat because of health reasons. Because Averitt had filed for re-election and won the March Republican primary, each of the county party chairs in District 22 picked a candidate for the general election in November. To the winner is a full four-year term.
SD-22 Republican chairs were unanimous in their choice of Birdwell as were the Democratic chairs in their choice of Cullar several days later.
“I have great confidence in both our legal team and the judicial process, and feel certain that our response will demonstrate that I am qualified to continue serving as a Texas state senator,” Birdwell said.
In the legal response, lawyers argued that while Birdwell was stationed in Virginia during a portion of his military service, he has continually owned property in Texas since 1988, and purchased his current home in Texas in 2005. The response goes on to reference the declaratory judgment, ruling Birdwell a continuous Texas resident since 1973.
Cullar and TDP filed against an incorrect party, namely Steve Munisteri, chairman of the Republican Party of Texas, attorneys claim in the response.
“Munisteri did not nominate Birdwell to be the replacement candidate for the general election ballot position for SD-22,” the response reads. “[He] is not the chair, or even a member, of the SD-22 executive committee that made the replacement nomination and did not certify the candidate’s name for placement on the general election ballot.
The court, therefore, cannot order Munisteri to declare Birdwell ineligible because he is not the person charged by law to do so, according to the response.
Among other points, the response argues that voting histories and public records relied upon by Cullar and TDP fail to exclusively establish that Birdwell was not a Texas resident during the time in question.
For that reason, their request, that the court order mandamus — that is, order Munisteri to declare Birdwell ineligible to run in November — cannot stand, attorneys for Munisteri argued in their response.
“Disputed questions of fact cannot be resolved in a mandamus proceeding,” attorneys write in the response, citing a finding of law from an earlier case.
Certain records, namely press clippings, relied upon by Cullar and the TDP are not public records and election authority can consider under the election code, the attorneys further argue.
Cullar’s and TDP’s answer to the response was not available at press time.
