Sunday, November 18, 2012


UPDATE:  I will update this post by 10 a.m. Monday.  I am waiting on a source to respond to a request.   I just got off the phone with a lawyer at the SOS - true to form they have no clue - remember in the case of Don DeLeon they changed the election code without  consent from the DOJ, and continue to claim it was their right notwithstanding the plain language of the Voting Rights Act.

The lawyer agrees there is nothing in the recount statute which addresses removal of a trustee after being sworn.  She clearly stated it would not be a removal.  Why?  She does not know - well she does know - if you call it a removal then the removal statute governs. 

The Corpus Christi Court of Appeals has addressed the exlcusive remedy of removal under 87.013 of the local government code. "The local government code provides for the removal of a District Attorney for incompetency, official misconduct, or intoxication. Tex. Loc. Gov't Code Ann. § 87.013 (Vernon 1999). A trial court may remove a District Attorney only for one of the three causes enumerated in section 87.013, and only after a trial by jury. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990)  A recount is not one of them.

The good news for Gill-Martinez is, Chirinos will take no action regardless.  She needs to prepare for her swearing in party.

The bad news for Enrique Escobedo is, Longoria, Presas-Garcia, Saavedra and Gill-Martinez are going to vote him out as Board President, and replace him with Lucy Longoria.  If I were Lucy I would be preparing my swearing in party as Board President, about now.

The last thing the lawyer at the Secretary of States's office said to me was my claim about how statutory  construction works is wrong.  I would say Melany knows as much about the law as an idiot.  This is basic - specific statute overrules general statute unless the general statute expressly states is overrules the specific statute.  For her to say this is wrong is almost too surreal to believe.  The problem is, she was not willing to check out the law. 

"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"

I have always said there is a reason why the State of Texas is under the Voting Rights Act - just look at its election code and the incompetence of the Secretary of State.

One option for Chirinos is to file a complaint with the DOJ alleging Texas is changing the Election Code again without preclearance.  With the US Supreme Court looking at holding the Voting Rights Act unconstitutional, the Obama Administration is looking for proof Texas cannot be trusted to conduct fair elections.


I have spent the weekend trying to find a definitive answer to the question of, can a sworn in trustee be removed from office based on a recount? The recount statute does not provide for removal, but does void the original count if the new one is different. The question is, can a recount occur once the trustee is sworn in?

The removal statute does not provide for removal after a recount. This is a mess only the courts can settle. It will be interesting to see if the SOS lawyers provide Roger Ortiz an opinion on the matter. As I noted over the weekend, other cities do not swear in the candidates until after the deadline for filing for a recount. In the corrupt 4's race for renewing their power they may have killed their own candidate.

But here is where the real poetic justice may come in.  Enrique Escobedo as the Board President has a lot of power in this recount.  He is the recount supervisor who appoints the recount committee.  (See. IIB4 and XV) I am certain Ted Parker or someone tied to Ted Parker communicated with Enrique Escobedo about doing the right thing.

But here is the deal.  If Enrique Escobedo uses his power to appoint the "right people," he will give Presas-Garcia, Gill-Martinez, Longoria, and Saavedra a majority which means they will not need Enrique Escobedo.  Given the known growing animosity between Enrique Escobedo and Presas-Garcia, I cannot imagine Presas-Garcia not using the new majority to send Escobedo to the curb without any power.  Now this would be a meaningful example of poetic justice.

I do not know if Chirinos will go to court to stop the recount until a decision is made as to whether the time  for a recount had passed at the moment he was sworn in.  I am  told he really does not want to be a trustee, and that he only ran as a favor to Powers and Zayas.

If the FBI is watching as part of its larger investigation, it is possible they intercepted a lot of very good phone calls and emails over the weekend.  If indictments are forthcoming by the Spring, Gill-Martinez could see herself included. 

This is a mess which is sure to go nuclear no matter what happens.

My personal preference is for law firms to step forward and represent both sides pro bono.  Let's get it into court and insure whatever happens is what is dictated by the law.

Chirinos needs to look into having the recount moved from BISD.  It is not possible that given Escobedo's open support for Gill-Martinez he can objectively appoint any committee.  On this note, the SOS needs to oversee the recount to insure fairness. 

1 comment:

BobbyWC said...

Comment rejected - what part of no vulgarities do you people not get - cyber-bullying will not be tolerated at the BV - there are other blogs which demand it because without it they would have no comments.

I did not declare this is the law. I said let's start a conversation. Further, this election needs to be decided on the law, and not the corruption of local politics. This is why I support law firms coming in and representing both sides pro bono and allowing the Texas Supreme Court to decide the question of law.

From my perspective it does not matter if the winner is Chirinos or Gill-Martinez - if the FBI is not investing the criminal conduct will go unpunished anyway - if they are investigating and intercepting phone calls and emails, then justice will come soon enough. If they are investigating Gill-martinez better hope she has not said anything incriminating in a phone call of email.

Bobby WC