Someday, this is going to be taught in political science classes. And possibly law schools.
The ongoing election dispute in District B has put Jerry Davis in a peculiar position, seemingly caught between two provisions of the Texas Constitution as he challenges longtime incumbent state Rep. Harold Dutton in the March 3 Democratic primary.
And it is unlikely to change until the courts clear the way for voters to cast ballots in the long-delayed runoff for his council seat.
Until then, Davis is stuck in the council seat he was supposed to leave in January because of term limits.
With no new council member seated by the first of the year, Article XVI, Sec. 17 of the Texas Constitution kicked in, requiring Davis to remain in the District B seat until his successor can be elected and seated.
“All officers of this State shall continue to perform the duties of their offices until their successors shall be duly qualified,” the provision reads.
When Davis filed Dec. 9 to challenge Dutton for the District 142 seat in the Texas House, it raised another constitutional clause, this one found in Article III, Sec. 19.
That provision says no public official who holds a “lucrative office… shall during the term for which is he elected or appointed, be eligible to the Legislature.”
Texas Supreme Court rulings have held that any paid public office, no matter how small the compensation, is considered “lucrative.” Additionally, the high court has ruled that the eligibility requirement extends to one’s candidacy.
A Houston city council salary is around $63,000 a year.
To date, no one has challenged Davis’ eligibility.
The councilman said he believes he is in the clear because his elected term ended in January. Democratic Party officials, tasked with determining eligibility for primary candidates, say they believe he qualifies because his appointed term as a hold-over should end long before he would join the Legislature next January if he wins.
And Dutton has not lodged any complaints or challenges. That could change, should Davis prevail in the March election.
Buck Wood, an authority on Texas election law who has represented clients in landmark Supreme Court rulings on the subject, said the law holds that candidates have to be eligible while they are running for office, not just on the date they take it.
Since Davis still is on the council, someone could make the case that he is not eligible, he said.
“The problem is, the court has also held that you have to be eligible as of the date that you file,” Wood said.
The interaction of those two constitutional clauses is an open legal question, left unresolved for now by Texas judges.
“The courts have not ruled on that hold-over provision,” he said.
It gets deeper into the weeds from there, and I’ll leave it to you to read up. For now, all is well and legal and good. Until such time as someone files a lawsuit – either Dutton over Davis’ eligibility to be on the ballot (an irony that may wash us all into the sea), or a city resident alleging that some action Davis has taken since January 1 as Council member is invalid, or maybe some other claim I can’t envision right now – there are no problems. Maybe we’ll make it all the way to the (we hope) May runoff in District B and there will still be no problems. It can all come crashing down at any time, and if that happens it’ll tie up the legal system for years, but for now, make like Wile E. Coyote and keep on running. As far as you know, the end of that cliff has not yet arrived.
(Note: this story ran, and I drafted this post, before the ruling in the District B runoff lawsuit. The fundamentals are the same, as Davis will still be serving till we have a runoff winner.)