Response by Attorney Randall Wood to Lillie Schechter on behalf of Brittanye Morris

donald w. ray (1940-1992) randall buck wood doug w. ray

RAY & WOOD attorneys at law 300 beardsley lane suite b-100 austin, texas 78746

tel (512) 328-8877 fax (512) 328-1156

March 27, 2020 Lillie Schechter County Chair Harris County Democratic Party 4619 Lyons Avenue Houston, Texas 77020

Via email: lillie@harrisdemocrats.com

Dear Ms. Schechter: Despite having only six days in which to secure counsel and respond during a pandemic that has resulted in shelter-in-place orders across the State of Texas, on behalf of Brittanye Lashay Morris, the Democratic nominee for the office of Judge, 333rd Judicial District, we are responding to your letter of March 21, 2020 regarding her eligibility to hold that office. Because your authority to administratively declare a candidate ineligible is limited to instances in which you have been presented with public records conclusively demonstrating such ineligibility, and no such public records have been provided, you have no authority to declare Ms. Morris ineligible.

“A candidate may be declared ineligible only if . . . facts indicating that the candidate is ineligible are conclusively established by another public record.” TEX. ELEC. CODE § 145.003(f)(2). As such, a party county chair has no “authority to make a factual determination as to whether [a candidate] actually resides at [a particular address], or that he is otherwise legally ineligible.” In re Tolliver, No. 05-0200109-CV, 2002 WL 92919, at *2 (Tex. App.—Dallas Jan. 25, 2002, no pet.). If the public records presented do not establish a candidate’s ineligibility conclusively, then the county chair has no authority to declare such candidate ineligible. See In re Palomo, 366 S.W.3d 193, 198 (Tex. 2012) (holding that because the “[p]ublic records certainly do not ‘conclusively establish’” the candidate’s ineligibility, the “county chair was therefore not authorized, let alone required, to declare [the candidate] ineligible”).

You have been presented with two public records that are claimed to show that Ms. Morris has not resided in Harris County for two years prior to November 3, 2020, as is required by Article V, § 7 of the Texas Constitution. However, neither document shows Ms. Morris’s residency conclusively and are therefore insufficient to authorize you to declare her ineligible.

In relevant part, the Election Code defines “‘residence’ [as] domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence. Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.” TEX. ELEC. CODE § 1.015(a)-(b). “Whether “‘a person resides in a particular [voting district] according to the election code definition [of residence] is a question of fact.’” State v. Wilson, 490 S.W.3d 610, 616 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting In re Peacock, 421 S.W.3d 913, 917 (Tex. App.—Tyler 2014, orig. proceeding)).

Under the common law, the “term ‘residence’ is an elastic one and . . . depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.” Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964). “Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined.” Id. In assessing presence, “relevant factors include where the person sleeps, stores personal possessions, and generally conducts day-to-day activities.” Wilson, 490 S.W.3d at 619.

Moreover, when “a person’s statements concerning his residence are inconsistent with the facts showing actual residence, ‘such statements “are of slight weight” and cannot establish residence in fact.’” Id. at 618 (citation omitted).

One of the public records submitted to you was a deed of trust related to the purchase of property by Ms. Morris in Fort Bend County in November 2018. This deed of trust contains a contractual provision stating that: Borrower shall occupy, establish, and use the Property as Borrower’s principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower’s principal residence for at least one year after the date of occupancy, unless Lender determines that this requirement shall cause undue hardship for the Borrower or unless extenuating circumstances exist which are beyond Borrower’s control.

Nothing in the public records submitted to you conclusively demonstrates that Ms. Morris was not exempted from this provision by its own terms or that she ever actually occupied the Fort Bend property. As such, this public record does not conclusively establish either element of residence—Ms. Morris’s intent to live in Fort Bend County or her actual presence there. Ms. Morris stands by her sworn application of candidacy that she has not resided outside of Harris County in the past two years.

She never occupied the Fort Bend County property as her residence, principal or otherwise.

The second public record submitted to you, the homestead affidavit signed by Ms. Morris, likewise fails to conclusively establish that the Fort Bend property was her residence. 1 In two instances challengers have requested a candidate be administratively declared ineligible based upon a homestead exemption application and in both instances the courts of appeal held that a homestead exemption does not conclusively establish a candidate’s residency at the property for which the homestead exemption was sought.

Although not identified as a public record in either the memorandum submitted to you or your letter to Ms. Morris, the documents submitted to you contained information regarding changes on the address listed on Ms. Morris’s driver’s license. A driver’s license is not conclusive proof of residence as defined by the Election Code. See, e.g., McDuffee v. Miller, 327 S.W.3d 808, 811, 818, 824 (Tex. App.—Beaumont 2010, no pet.) (holding that clear and convincing evidence demonstrated that voter Heath was not a resident of the relevant election district although he had changed his driver’s license address to one within the district prior to the election in question).

1

In In re Vela, 399 S.W.3d 265 (Tex. App.—San Antonio 2012, orig. proceeding) a mayoral candidate for the City of Rio Bravo was administratively declared ineligible as a non-resident based upon 1) an application for homestead exemption in Laredo, Texas regarding his property located in Laredo, Texas; 2) his voter registration in Laredo, Texas; and 3) his claimed residential address in Rio Bravo being a commercial property not eligible for the homestead exemption. Id. at 265. The court of appeals held that “we cannot say the public records on which the City relied conclusively establish Vela’s ineligibility as a candidate for mayor of the City of Rio Bravo. Therefore, Peguero, in her capacity as City Secretary, lacked the authority to declare Vela ineligible.” Id. at 266.

Similarly, in In re Peacock, 421 S.W.3d 913 (Tex. App.—Tyler 2014, orig. proceeding) a county court at law candidate sought to mandamus the county chair to administratively declare her opponent ineligible for failure to reside in the county for the previous two years. She provided the following public records to the county chair: 1. “[A] certified copy of records from Williamson County, Texas, showing that Mrs. Stone has voted in an election in Williamson County within the two years preceding any election to which her candidacy is applicable”; and 2. “[A] certified record from the Williamson County Appraisal District showing that Mrs. Stone, whose prior married name was Janice Crosby McKennon, enjoyed a homestead exemption for the home she owned in Round Rock, Williamson County, Texas.”

Id. at 916.

The court of appeals held that voting record, which showed that the candidate had voted outside the county in the election two years prior was not conclusive, because it did not show whether the candidate had voted on election day or in early voting, which would have been before the two-year residency requirement. Id. at 917-18. It went on to hold that: The document pertaining to Stone’s Williamson County homestead exemption is equally inconclusive. A homestead designation may be relevant to resolution of a dispute concerning the person’s residence for purposes of the election code. However, no one factor is dispositive on the question of one’s intended residence. Therefore, we cannot say that the document verifying Stone’s homestead exemption conclusively shows her ineligibility as a candidate for Judge of the County Court at Law. At most, Stone’s Williamson County voting history and the document verifying her 2014 Williamson County homestead exemption raise a fact issue concerning her residence for the relevant two year period. See Mills, 375 S.W.2d at 943. These documents do not, either considered separately or read together, conclusively establish that Stone is ineligible to be a candidate for Judge of the County Court at Law of Cherokee County. Consequently, Rix did not violate his statutory duty by declining to declare Stone ineligible as a candidate for that office.

Id. at 918 (citations omitted).

The case of State v. Wilson, 490 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2016, no pet.) likewise shows that you have no public records before you that conclusively show Ms. Morris has resided outside of Harris County within the past two years. In Wilson, the Harris County Attorney brought a quo warranto proceeding challenging the eligibility of a Harris County Community College trustee on the grounds that he did not live in the trustee district. Id. at 612. Based upon the trustee’s testimony and other documentary evidence, the jury found that he was a resident of the district. Id. Part of the evidence showed that the trustee had previously purchased a home outside of the trustee’s district for his wife in her name, but had designated himself as an owner also of the home, and that there was a homestead designation on this property. Id. at 613-14. In affirming the trial court’s judgment, the court of appeals held that the evidence was legally sufficient to support the jury’s verdict because a “homestead designation outside of [the] voting district is relevant but not dispositive in determining [the] residency of [a] candidate,” and therefore the homestead exemption was “neither controlling nor conclusive.” Id. at 621. The County Attorney argued that a candidate should not be able to gain the tax advantages of a homestead designation at one address while claiming another address for purposes of running for office. The court of appeals rejected this argument, holding that “[d]eriving tax benefits, such as a homestead exemption, from one property does not automatically preclude a finding that the person actually resides at another.” Id. at 623.

The deed of trust presented to you contains no more regarding Ms. Morris’s residence in Fort Bend County than is contained in her application for a homestead exemption. Three courts of appeal have already specifically held that a homestead exemption application does not conclusively establish a candidate’s residence at the property subject to the exemption. You have therefore been presented with no public records that conclusively show Ms. Morris has resided anywhere other than Harris County for the previous two years as stated in her ballot application. There is every reason to believe that a Houston court of appeals would certainly agree and thus any administrative declaration of ineligibility under these circumstances would require the needless expenditure of judicial resources to undo this unauthorized act.

Sincerely, Randall B. Wood