Richard Fleming decision

ORDER – Page 1N

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. 09-07085-D

RICHARD FLEMING,§IN THE DISTRICT COURT OF§Plaintiff,§§V.§DALLAS COUNTY, TEXAS§CARROLLTON-FARMERS BRANCH§INDEPENDENT SCHOOL DISTRICT§and LYNN CHAFFIN, in her capacity as§presiding officer,§§Defendants.§95

TH

JUDICIAL DISTRICT

ORDER

On September 11, 2009, the Court called this matter for final hearing and trial on theplaintiff’s application for mandamus, injunctive and declaratory relief. Defendants haveinterposed pleas to the jurisdiction and in bar, seeking dismissal of Fleming’s claims without atrial. They have otherwise denied that Fleming is entitled to the relief he requests.All parties appeared through able counsel and announced ready to proceed. Withoutobjection, the Court determined that it would carry the defendants’ pleas and their motion todismiss until the completion of the evidentiary presentation and would treat the case as a finaltrial on the merits.

I. B

ACKGROUND AND

N

ATURE OF THE

D

ISPUTE

This dispute involves Plaintiff Richard Fleming’s eligibility to hold the office of Trustee,Place 4, on the Carrollton-Farmers Branch Independent School District (C-FB ISD) Board of Trustees.All parties and the Court concede that the unique facts of this case raise some of the mostperplexing legal issues that exist under the Texas Election Code and the court decisionsinterpreting that Code.

1

The canvassing authority in this case was the Board of Trustees of the C-FB ISD.

2

The presiding officer of the canvassing authority, here Chaffin, has the exclusive authorityand duty to issue such a declaration. Such an action does not require school board approval.

ORDER – Page 2

It is undisputed that Fleming won the May 9, 2009, election, garnering some 52 percentof the vote for the Board’s Place 4 position.The election results were canvassed within the time allowed by law and Fleming wasdeclared the winner in a formal vote of the canvassing authority on May 18, 2009.

1

Morespecifically, a unanimous Board declared Fleming the victor and endorsed the election process.The Board found:[that the] election was duly called, that notice of said election wasduly posted and that

said election was held in accordance withlaw

; and that at said election . . .

Fleming was elected to said Board of Trustees in Place 4, subject to issuance of the certificateof election by the presiding officer in accordance with the law

andtaking the oath of office.” [Emphasis added.]Nevertheless, Fleming was not then, nor has he been, issued a certificate of election andallowed to take the Place 4 seat. Rather than issue the certificate and seat Fleming, DefendantLynn Chaffin, the presiding officer of the election’s canvassing authority and the currentpresident of the C-FB ISD Board of Trustees, issued a formal declaration of ineligibility againstFleming more than two weeks after the canvass and more than three weeks after the vote.

2

The refusal to seat Fleming is based on defendants’ claim that Fleming fails to meet state-mandated residency requirements for the public office at issue. Defendants argue that at alltimes material to this proceeding Fleming lived some 17 feet within the Lewisville IndependentSchool District (LISD), not in the Carrollton-Farmers Branch district. Put another way,defendants say that close only counts in Horseshoes and hand grenades, not in the determinationof a candidate’s residency requirements.

3

Fleming recently moved into a “non-controversial” part of the C-FB ISD.

ORDER – Page 3

Fleming counters that the defendants failed to adhere to legal requirements indisqualifying him and preventing him from taking office. He also argues that for purposes of theMay 9 election, he was within the boundary lines of the district.For more than 20 years, the electoral area’s tax appraisal districts (Dallas and Denton)sited the boundary line between C-FB ISD and LISD to include what is Fleming’s residencewithin C-FB ISD.Since he has resided there, Fleming has paid taxes to C-FB ISD at its demand and subjectto governmental penalties for nonpayment. A mere day before the filing period opened for theoffice at issue, the C-FB ISD tax assessor-collector sent Fleming a formal statement for hisschool district taxes and demanded payment. Fleming tendered his payment and the districtaccepted it some 30 days later. Defendants concede that only properties within the district aresubject to taxation.Throughout this same time, Fleming was also the caretaker of several family members,including children, who resided with him at the residence.

3

The uncontradicted evidence showsthat these children have attended schools within C-FB ISD. They would not have been able todo so had they not resided within the district. The defendants admit this.On March 9, 2009, Fleming filed his application for candidacy with C-FB ISDauthorities. On it he listed his residence address as the one currently challenged as beingoutside the school district. Fleming’s application was accepted by the district pursuant to T

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.E

LEC

.

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ODE

§ 145.003(g), which affirmatively requires the filing authority, here C-FB ISD, topromptly verify its legal efficacy. That provision mandates that the C-FB ISD reviewinformation relating to a candidate’s residency, and if “the record establishes ineligibility . . . the