Saturday, November 17, 2012


 








DID THE CORRUPT 4 ON THE BISD BOARD OF TRUSTEES KILL LINDA GILL-MARTINEZ'S RIGHT TO A RECOUNT?


CHECK OUT HOW MUCH WORSE IT IS IN HIDALGO COUNTY

http://www.texaswatchdog.org/2012/11/hidalgo-texas-elections-officials-allowed-voters-outside-school/1353084964.column

I truly hope my research is wrong.  I would love nothing more than to be 100% wrong. This post is not about making a definitive statement on the issue, but to start a conversation on the issue. Let's explore this as a community and try and learn what the law is on the issue.  Again I am not declaring this the law, I am just starting a discussion on the issue.

It would be sad if the conduct of the corrupt 4 has the ability to subvert  a recount.  The gist of the problem is simple.  The Board rather than wait for an opportunity for a recount, swore in Chirinos.  The removal statute does not provide for removal after a recount.  The recount statute voids the original count if the numbers change.  The 2 laws are in conflict with one another.  It could take the courts 1-2 years before they resolve the question.

http://www.caller.com/news/2012/nov/16/corpus-christi-isd-trustee-at-large-incumbent-6/

In the above article note how it is being done in Corpus. The trustees are not sworn in after canvassing such as BISD did. CC waits until a recount can be requested and conducted. There may be a good reason for this - Chapter 87 of the Local Government code strictly governs removal of an elected school board trustee. A recount after being sworn in is not a basis for removal.

http://law.onecle.com/texas/local-government/87.013.00.html

The below case explains how 87.013 applies to this situation.

http://caselaw.findlaw.com/tx-court-of-appeals/1164087.html

 

I have reviewed the entire recount statute and this is all I can find which may change the result. "An original canvass for the office or measure is void, and the new canvass is the official canvass for the election on that office or measure" http://law.onecle.com/texas/election/213.033.00.html

For anyone interested in reviewing the entire statute on recounts - here it is.

http://law.onecle.com/texas/election/chapter213.html

Best case scenario for Gill-Martinez, there is a conflict in the law between removal and recount. But I believe the Conflict of Laws rule in Texas does not bode well for her. Worse case scenario is a court will enjoin the recount as not allowed by law once the official is sworn into office.

TEXAS STATUTORY CONTRUCTION - CONFLICT OF LAWS

"Sec. 311.026. SPECIAL OR LOCAL PROVISION PREVAILS OVER GENERAL. (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail"

This case falls under part (b) - because the last change to the recount law is newer than the last change to the removal law, the issue comes down to whether or not the specific statute for removal intends that the general statute of recount prevail.  It does not.  This is where Gill Martinez has problems.

Roger Ortiz would be remiss in his duties if he did not have the lawyers for the SOS advice him on this matter before turning over the ballots to BISD.

This is what I was able to find. It would be best if someone can find a clear statutory basis for removing a sworn trustee after a recount. This would certainly be in the interest of justice.

SECRETARY OF STATE GUIDE

http://www.sostx.us/elections/laws/recounts.shtml

Based on what I saw during the canvassing meeting BISD did not preserve the issue as required by IB2.  Whether or not the issue is jurisdictional will be a question for the court. Further there is nothing in the guide which addresses removal of an already sworn in trustee.

This is going to be a mess, and not because of Roger Ortiz, but because the corrupt 4 may have jumped the gun.


 

 

3 comments:

Patricia A. said...

Why wouldn't the law require the swearing in of new trustees after the deadline for contesting the election has passed, and provide new timelines for when it is?

Patricia A.

BobbyWC said...

Comment rejected - you people really think you are helping Linda Gill-Martinez with homophobic tirades and insults

I am working hard to understand this issue - the law is clearly not clear- Under statutory contruction rules the specific law for removal governs, unless the law itself says otherwise. The law does not say otherwise and the law does not provide for removal of a trustee after they have been sworn in based on a recount.

But the recount law makes the the original count void. This is the essence of the conflict which could take the courts a year to resolve.

But here is an interesting part of the recount law which may help Linda

http://law.onecle.com/texas/election/212.0331.00.html

It invisions a situation wherein the candidate has been given "certificate of election and qualified for an office.'

In some ways it only muddies the waters more. I think lawyers on both sides will have strong arguments.

But the certificate of election is not the same as being sworn in - it is this step which may bring disaster to Linda Gill-Martinez's efforts

http://law.onecle.com/texas/election/67.016.00.html

BobbyWC said...

In CC case that board seems to think that you do not swear in the candidates the same night as the canvas. Texas law on this issue is a mess. No one can definitively state one way or the other - it is a mess. I can find nothing to indicate any entity has faced this question in the past.

You would think BISD with its lawyers would have asked if they must wait to swear in Chirinos until after the time line for a recount had expired. What you have is a lot of incompetence all around, and a lot of confusion in the law.

This serves no one - I will say this, several people have told me Chirinos does not really want to be a trustee and that he ran because no one else would. If you look to the campaign he really did not even run a campaign.

It would not surprise me if he quietly goes away into the sunset without defending himself.

Also there may be a host of problems with whether or not BISD issued proper certifications of election. If they did not it could make Chirinos swearing in void - the questions grow by the minute

Bobby WC