Residency Isn't a Simple Issue in Texas Law

Home might be where your heart is, but it's not necessarily your political residence. For legal purposes, where you sleep is only part of the answer to where you live. Where you vote, where you intend to reside, whether you consider your nesting place temporary and where you pay taxes can all change to the answer to that basic question: Do you live in the place you seek to represent in Austin?

The residency case of the moment is that of state Sen. Brian Birdwell, R-Granbury, who's facing a legal challenge to his residency in Texas by the Texas Democratic Party and his opponent, John Cullar, who say his Virginia voting record disqualifies him. Birdwell won the seat in a special election this summer and is the Republican nominee for a full term in the general election later this year. But he voted in Virginia in November 2006 — an act the Democrats and their lawyers call conclusive evidence of his residency there. Texas law requires senators to reside in the state for the five years before they take office. The courts will decide whether voting established his Virginia residency, making him ineligible, or whether his intent to return to Texas made him a resident here, which would allow him to keep his Senate seat (and would raise questions about whether it's legal for a Texas resident to vote in another state).

His dispute over residency certainly isn't the first. They seem to pop up almost every election cycle.

State Rep. Frank Corte Jr., R-San Antonio, was accused of not living in his district in 2008. His house was, in fact, in another district. Democrats squawked to the Republican Party, saying they should replace him on the ballot. But he owned a lot in the district he represented and said he intended to build a house there and live in it. He'd actually lived at that address for years and moved his old house to build a new one there. And under Texas law, that was enough. "I get there and pick up my mail every day," he told the San Antonio Express-News at the time. "I am going to build a house there."

State Rep. Ken Legler lives in a house in his district, and his wife owns a condo in the next district (and next county), where she stays five nights a week to allow the couple's daughter to go to Friendswood High School instead of Pasadena High. That let the daughter remain involved with a particular group of friends, but it caused a kerfuffle in her dad's election last cycle, especially when tax records in Houston and Galveston counties incorrectly made it appear that he had claimed two homestead exemptions. His opponents used the issue in mailers but never challenged his residency in court.

Democrat Chris Bell — the former Houston city councilman, congressman and gubernatorial candidate — went to court to knock an opponent off the ballot in a race for state Senate in 2008, saying Stephanie Simmons didn't reside or vote in the district. Bell, who was running in the special election to replace retiring Sen. Kyle Janek, R-Houston, had hoped to be the only Democrat in that contest, and Simmons' last-minute filing spoiled his plan. He said she had voted in another district and didn't live in the place she sought to represent; a judge told her she should've known better than to vote elsewhere but was convinced her home was in the district and left her on the ballot. (The final outcome? Neither one of them won. Republican Joan Huffman took the seat and remains in the Senate today.)

Some candidates get away with what looks like residency in politics but would get you in trouble if you tried it in real life. Democrat Chet Edwards, who's now a congressman, ran for Senate in a district that didn't include his hometown of Duncanville in 1982 — by renting a place that was in the district and declaring it his residence. Ted Lyon, D-Mesquite, did the same thing that year, taking a lease in a somewhat shady corner of his district that overlapped a Senate seat he coveted. Both got elected. Republican Bill Zedler, R-Arlington, followed suit in 2002, renting one room of a mobile home and calling it his residence for purposes of seeking a place in the Texas House. He won, too, then lost in 2008. He's on the ballot this year trying to get that seat back.

The state's election law calls residence "one's home and fixed place of habitation to which one intends to return after any temporary absence." It also says you don't lose your residence by temporarily moving somewhere else and that you don't necessarily become a resident of another place if it's not your intention to stay there. And it says the issue is subject to case law.

Residency fights aren't based on a clear set of rules, and politicians regularly avoid them. The law has lots of gray areas in it — you can reside in one place, sleep every night in another, all while intending to live in a third spot. What's more, the challenge itself can work against the attacker. Settling elections on residency and other technicalities don't always sit well with voters. In Birdwell's case, for instance, neither of his Republican opponents filed suit to challenge him, though both of them talked about his residency. One of them, former state Sen. David Sibley, had a potential issue of his own that was, at the least, politically inconvenient: Since leaving the Senate, he's been living in Austin and in Waco. Not deadly, necessarily, but awkward.

State law used to hold that a man's residence was wherever his wife lived. That standard died, according to Austin attorney and election law expert Randall "Buck" Wood, when the Equal Rights Amendment went into the state constitution and the law had to be applied equally to both sexes. Now, the question of residency resides in various pieces of evidence — where you actually sleep most of the time, whether there's evidence you regard your living spot as temporary (think of a soldier stationed overseas), where you have a homestead exemption and so on. But voting can be the clincher.

Wood and some others say voting in local elections more clearly signals residency than any other factor. Most places require people to declare themselves residents, effectively, when they register to vote (otherwise, you could register wherever you wanted and vote there; imagine the dirty tricks that would ensue). Birdwell has to argue, in effect, that he was a resident of Texas when he was voting on local officials and issues in Virginia. If the courts disagree, then his November 2006 vote in Virginia would prevent him from eligibility for the Texas Senate until November 2011.

The Birdwell case should get decided pretty soon. It's pending in the state's 5th Court of Appeals in Dallas; briefs from Birdwell and GOP chairman Steve Munisteri are due by the end of the day Thursday, and the Democrats have until the end of the day Friday to respond. August 20 — a week from Friday — is the last day the parties can replace candidates on the ballot (though the courts can stretch that if they choose), and chances are that the loser in Dallas will appeal to the Texas Supreme Court.

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