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March 21, 2014

4th judge recuses self in JP case

CHEROKEE COUNTY — Citing “deadlines of hearings and conflict of schedules,” Judge Richard Davis recused himself Monday from hearing a petition involving a local primary candidates of an upcoming Pct. 4 Justice of the Peace race.

“I am unable to timely hear this case and request another judge be appointed,” he said in a document filed with the 2nd Judicial District Clerk's office.

Davis was assigned March 14 to overhear a case based on a petition filed earlier this month in district court by Vera Foreman, the uncontested Democratic incumbent in the local March 4 primary.

In her petition, Foreman claims candidate Rodney P. Wallace – who ran in the March 4 Republican primary – does not meet county residency requirements; the petition was filed against Wallace and Jerry Rix, the Republican Party county chairman for Cherokee County.

Foreman's case is based on a candidate application filed by Wallace that states  “Mr. Wallace's length of continuous residence in the county (Cherokee) was for 11 months as of the date the application was sworn.”

The application reflects a Jacksonville address for Wallace.

Rix – in his role as local Republican party chairman – signed the document, noting that the application was accompanied by an eight-page petition submitted “in lieu of filing fee.”

However, the petition states Wallace is ineligible to be a candidate in the primary – and therefore ineligible to be a candidate in the Nov. 4 general election – because “he was not a resident of Cherokee County for a period of six months prior to the filing deadline for primary elections, said deadline being December 9, 2013.”

The Texas Election Code requires candidates filing for a Justice of the Peace seat must reside in the territory they seek to represent “for a period of six months next preceding the filing deadline for said election,” the document points out.

Foreman's petition also states that 29 of the 57 signatures Wallace procured on a petition to be placed on the primary ballot were dated after a Nov. 13, 2014, the date Rix said he received the petition.

Steven R. Guy of Jacksonville, Rix's attorney, filed a brief response Thursday on behalf of his client, stating “defendents deny each and every allegation of plaintiff's original petition, and demand strict proof thereof as required by the Texas Rules of Civil Procedure.”

According to records from the district clerk's office, Wallace, who was originally served a citation March 11 regarding Foreman's petition, has not yet responded, nor has an attorney of record.

Davis is the fourth judge to recuse himself from the case, according to court documents.

District Court Judge Dwight Phifer was recused March 6, while 369th District Court Judge Bascom Bentley III of Cherokee County was recused the following day.

Diane DeVasto, a former state district judge, was assigned to overhear the case March 10, but “voluntarily entered a recusal” March 11.

As a result, Judge Jerry Calhoon, the senior judge of the 349th District Court, was assigned Monday to overhear the case, according to reports.

In a previous Jacksonville Daily Progress interview with John Ament, who represents Foreman, the attorney said that should the court rule in his client's favor, Rix and Wallace have the option to file an appeal, though they could face time constraints in getting the issue settled before a state election code deadline stating appeals must be concluded “at least 74 days before the November election.”

“That 74 days puts us sometime in the latter part of August,” he told the Daily Progress. “If it goes to appeal, getting the case finalized by then is going to be difficult.”

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