State Sen. Brian Birdwell defended himself against an eligibility challenge Thursday, claiming his Virginia voting records and other public records show his “presence in Virginia was temporary.”

The Granbury Republican filed a response in Dallas’ Fifth Court of Appeals to a suit filed late last week by the state Democratic Party and Democratic state Senate nominee John Cullar, of Waco.

The petition asks the court to force Republican Party of Texas chairman Steve Munisteri to remove Birdwell from the ballot. It argues Birdwell does not meet a five-year state residency requirement for state senators.

Brian Birdwell claims he meets residency requirements in an answer filed Thursday in a Dallas court.
Rod Aydelotte/Tribune-Herald

A main point of contention in the case is over whether Birdwell’s Virginia voting registration form and voting history from 2004 through November 2006 make him a resident of that state.

Arguing over documents

“It has been Texas law for over 40 years that a person’s voter registration and voting history is conclusive as to that person’s residence,” the Democrats argued in their petition.

In Birdwell’s response, his attorneys at Beirne, Maynard & Parsons in Houston argued the Virginia documents instead show that the senator “lived and voted in Virginia from 2004 to 2006, and obtained a Virginia fishing license, before returning home to Texas.”

Birdwell’s response also stated that during the years in question, he was in Virginia for two years to undergo “extensive facial reconstruction procedures,” part of his recovery from burns he received while working in the Pentagon on Sept. 11, 2001.

The response also referred to Birdwell’s continual ownership of oil rights in Jack County and his purchase of his lot in Granbury in November 2005.

The response also disputed several other points made in the Democrats’ petition.

Birdwell’s attorneys argued the challenge improperly named Texas Republican Party chairman Steve Munisteri in the case, rather than a Republican Party county chairman who led the panel that nominated Birdwell.

They also asserted more than 40 pages of news clippings that Cullar and the Democrats included in the petition don’t meet the definition of a public record that can be considered for the purposes of determining Birdwell’s eligibility.

In mounting the court challenge, the Democrats continued a line of questioning that started with former state Sen. David Sibley, who ran against Birdwell in a June special election.

Sibley’s campaign presented public documents — a number of which have been included in the suit — to Secretary of State Hope Andrade, asking for Birdwell to be determined to be ineligible.

Andrade certified Birdwell for the ballot.

Cullar and the Democratic Party filed their petition with the Fort Worth Court of Appeals on Aug. 6, but the case was moved to Dallas on the same day.

The Democrats’ attorney, Chad Dunn, of Houston, asked in that petition for an expedited ruling before the Aug. 20 deadline to remove a candidate from the general election ballot.

In a separate response filed Thursday, an attorney for Munisteri argued the chairman doesn’t have the authority under state law to remove Birdwell from the ballot.

Munisteri’s attorney, John Cayce, stepped down as chief justice of the Fort Worth Court of Appeals in December 2009.

A clerk with the Dallas Court of Appeals said a panel made up of Justices Jim Mosely, Molly Francis and Doug Lang will hear the case.

mshapiro@wacotrib.com

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