Wendy Davis eligible to run for Texas Senate District 10

COMPLETE TEXT OF TARRANT COUNTY DEMOCRATIC PARTY CHAIRMAN ART BRENDER'S DECISION ON CHALLENGE TO WENDY DAVIS' CANDIDACY FOR TEXAS STATE SENATE DISTRICT 10

This letter serves as my response to the above referenced challenge to Wendy Davis' candidacy for Texas Senate District 10.

At about 2:30 p.m., on December 31, 2007, I received your challenge, pursuant to the Texas Election Code, to the candidacy of Wendy Davis for the office of Texas State Senate District 10. Art. III, § 19, TEX.
CONST., prohibits a person holding a lucrative public office from being eligible for election to the Texas Legislature "during the term for which he is elected or appointed." This long standing provision of the Texas Constitution has been subject to a great deal of litigation here, in Tarrant County for over five decades, beginning with the landmark decision, in Willis v. Potts, 377 S.W.2d 622 (Tex. 1967). In Willis, then Fort Worth City Council Member, Doyle Willis, sought nomination for this same Senate seat. The Supreme Court strictly construed this constitutional provision, thus, preventing Doyle Willis from becoming a candidate for the Senate seat in 1964.

However, in 1992, the Texas Supreme Court decided the case of Wentworth v. Myer, 839 S.W.2d 766 (Tex. 1992) (which your challenge has very ably briefed). In that case, Jeff Wentworth's term of office as a member of the Board of Regents of Texas State University System came under similar challenge. The Texas Supreme Court reversed the decision of the Republican State Chairman denying Wentworth a position on the ballot, holding that any constitutional or statutory provision which restricts the right to hold public office "must be strictly construed against ineligibility." The Court then held that since Wentworth had resigned his position on the Board of Regents some four years before he sought to be nominated to the State Senate, and because he had not continued to exercise any right, privilege or obligation of that office in the intervening four years, his resignation effectively ended his term of office and he was thus not subject to the restriction of art. III, § 19, TEX. CONST.

The Wentworth case, which consists of eight separate opinions by the nine Justices who decided the case, specifically withheld ruling on "when an officeholder must resign to avoid art. III, § 19." Thus, Wentworth avoided any determination on the application of the Texas holdover provision, contained in art. XVI, § 1, TEX. CONST. which is the subject of your challenge. Following Wentworth, Texas Attorney General Dan Morales, in Letter Opinion No. 95-069, specifically addressed this issue, pointing out that the issue presented in your challenge was not decided by the Wentworth court.

Your research has not presented any subsequent case discussing the issue. Neither I nor the attorney for the Secretary of State have found any other applicable authority.

Consequently, and pursuant to Wentworth, I must construe your challenge strictly against ineligibility. I have been provided evidence from the public record indicating that Wendy Davis resigned her position from the Fort Worth City Council on August 9, 2007. Accordingly, I am denying your challenge to the candidacy of Wendy Davis in the 2008 Democratic Primary for the position of State Senator for Texas State Senate District 10.

Thank you for your interest and support in the Democratic Party.


--ART BRENDER,
TARRANT COUNTY DEMOCRATIC CHAIR