Jo Anne Embleton
Jacksonville Daily Progress
CHEROKEE COUNTY —
A petition filed in the 2nd District Court on March 6 by Pct. 4 Justice of the Peace Vera Foreman claiming Republican primary candidate Rodney P. Wallace does not meet county residency requirements could go before a visiting judge as early as mid-April.
Both 2nd District Court Judge Dwight Phifer and 369th District Court Judge Bascom Bentley III of Cherokee County have recused themselves from the case, the District Clerk’s office confirmed Friday. An order of assignment has been issued for another judge to hear the case, officials said.
The petition was filed against Wallace and Jerry Rix, the Republican Party county chairman for Cherokee County.
According to attorney John Ament, who represents Foreman – the uncontested Democratic incumbent in the local March 4 primary – “we’re looking at a tentative (court) date of April 11.”
A candidate application filed by Wallace, dated Oct. 31 and signed by a Justice of the Peace in Tarrant County, was included in the court document, which 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 Nov. 13, noting that the application was accompanied by an 8-page petition submitted “in lieu of filing fee.”
However, Foreman's petition states “Mr. Wallace was ineligible to be a candidate in the Republican Primary of Cherokee County, and is, likewise ineligible to be a candidate in the general election set for November 4, 2014, as the Republican nominee. The basis of Mr. Wallace's ineligibility is that 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 that justice of the peace candidates in a general primary election to have resided 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.
It also states that more than half the 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.
“Apparently, 57 signatures were verified as meeting the requirements necessary to make them valid,” the court document states; “however, 29 of the signatures were dated after the date shown by Mr. Rix … thus putting Mr. Wallace without the required number of signatures. The names on the petition filled all or parts of eight sheets. Four of the signature sheets bear the date of oath as November 20, 2013, and one is undated.”
While the main thrust of the lawsuit focuses on the question of Wallace's residency, Ament admits “contesting residency in an election is a really tricky, difficult procedure.”
However, he added, “some of the case law I found says that (a voting record) is conclusive evidence of residency.”
Foreman's petition includes a Jan. 31, 2014, dated copy of a Tarrant County voting history record for Rodney Paul Wallace. It lists a Fort Worth address for Wallace and reflects a period between November 2002 and November 2013. The record notes that Wallace voted in Republican primaries and primary runoffs, as well as general and special elections.
Ament said his client is questioning how Wallace “can be a resident of two places at once,” and that while the Republican candidate listed a Cherokee County address on documents used for applying for the Republican primary, the best source of determining where someone has established residence is to look “where a person is registered to vote, where a person votes.
“I believe Mr. Wallace has a homestead declared in Tarrant County,” the lawyer said.
Foreman's petition mentions that a writ of mandamus – which, according to a www.law.com dictionary, “orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so” – “cannot be utilized to determine residency ineligibility,” leaving no other recourse “save for injunction.”
In a recent case involving candidates in the March 4 Republican primary, a similar question arose about residency.
A January writ for petition filed by Court-at-Law candidate Kelley Peacock disputing candidate Janice Crosby Stone's residency was denied. The writ claimed Stone had not resided in Cherokee County the length of time necessary to file for a petition.
The 12th Court of Appeals in Tyler said Stone's voting records in a different county and documentation for a homestead in a different county “raise a fact issue” but were not enough to take her off the Republican primary ballot.
In that case, Rix was said not to have violated his statutory duty.
In the event the court rules in favor of his client in the case involving Rix and Wallace, Ament said one or both defendants have the option to file an appeal.
However, per state election code, any appeals “must be over and done with at least 74 days before the November election,” to allow for printing of ballots, he said.
“That 74 days puts us sometime in the latter part of August,” he said. “If it goes to appeal, getting the case finalized by then is going to be difficult.”
When contacted by the Jacksonville Daily Progress, Rix deferred comments to his attorney, Steven Guy, who had not replied to calls from the paper by press deadline.
“I would rather he make any comments about (the case) at this point in time,” Rix said.
Attempts to contact Wallace were unsuccessful as of press deadline.