Secretary of State says Ms. Chaffin wrong

On June 4, Ms. Chaffin declared Mr. Fleming ineligible citing a provision in the election code that allows a a presiding officer to declare a candidate ineligible,"Facts indicating that the candidate is ineligible are conclusively established by another public record." However, the Secretary of State office position is clear THERE ARE NO PUBLIC RECORDS THAT CONCLUSIVELY ESTABLISH RESIDENCY

From: Melanie Huff [mailto:MHuff@sos.state.tx.us]
Sent: Tuesday, September 29, 2009 3:38 PM
To:
Subject: Candidate eligibility.-

Dear CONCERN CITIZEN

Thank you for your inquiry. I understand your question to be: Based on the wording of Section 145.003(f) of the Texas Election Code and the information set forth on administrative declaration of ineligibility on the Texas Secretary of State’s website, is it correct to conclude that it would be improper for the presiding officer (of the canvassing authority) to declare a candidate ineligible for not being a resident because no public record exists to conclusively establish residency?

The statement on the SOS website, “NOTE: No public record conclusively establishes residency,” correctly states the position of this office. This position is based upon Section 1.015(b) of the Texas Election Code. There is at least one case holding that public records conclusively established residency. See Nixon v. Slagle, 885 S.W.2d 658 (Tex. App. – Tyler 1994) (orig. proceeding). And there are other cases holding that records relied on to find a candidate ineligible either were not public records or that the public records presented did not conclusively establish residence. See Garcia v. Carpenter, 525 S.W.2d 160 (Tex. 1975); In re Tolliver, 2002 WL92919 (Tex. App.- Dallas 2002) (orig. proceeding) (not reported in S.W.3d); In re Jackson, 14 S.W.3d 843 (Tex. App. – Waco 2000) (orig. proceeding); Texas Dem. Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006).
I hope you find this information helpful. 

Melanie Huff 
Staff Attorney 
Elections Division Texas
Office of Secretary of State 
1.800.252.8683