The Texas Democratic Party and the party’s newly nominated state Senate candidate John Cullar challenged the eligibility of State Sen. Brian Birdwell, R-Granbury, in a state appeals court Friday.

Cullar and the party filed a writ of mandamus — an order instructing a court to perform a certain act — that asks the Fort Worth’s Second Court of Appeals to declare Birdwell ineligible.

But late in the day the Fort Worth justices recused themselves and kicked the case to Dallas’ Fifth Court of Appeals.

Brian Birdwell speaks in a July interview.
Rod Aydelotte/Tribune-Herald, file

In their recusal, the Fort Worth justices cited their court’s “inability to take immediate action,” according to a clerk there.

The eligibility challenge was filed exactly two weeks before a key deadline, after which a candidate cannot be removed from the ballot. Citing the Aug. 20 date, the Democratic Party and Cullar asked the court for a speedy ruling.

Cullar was nominated for the fall race about 14 hours before the writ was filed.

The challenge centers around whether Birdwell, a retired Army officer who was stationed in Virginia through 2004, meets a Texas requirement that senators live in the state for at least five years.

Birdwell moved from his Virginia home to Granbury in 2007 and voted in Virginia as recently as November 2006, according to records from that state.

It’s Birdwell’s voter registration and history that prompted the Democrats’ allegations that he doesn’t meet the residency requirement.

Election law specialist Buck Wood, who is not working on the case but has handled similar cases for Democrats in the past, said residency can be “ethereal” and hard to pin down under Texas law depending on the circumstances at play.

The petition argues the law is nevertheless straightforward in determining residency in cases like Birdwell’s.

“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 petition states.

If the court does not rule Birdwell ineligible, the petition further argues, it “will have declared Texas a political free range where candidates from anywhere in the state can move to another area on a whim and seek public office” and where “candidates from out of state can similarly come here and seek election despite their legal residency in other states.”

Birdwell and his campaign’s attorneys have argued in the past that he meets the requirement, pointing to a number of factors, including Birdwell’s intention prior to 2005 to return to Texas.

Birdwell released a statement Friday saying “the matters raised in the this lawsuit have been addressed in previous challenges.”

Birdwell referenced an unsuccessful attempt by his special election foe David Sibley to convince the Secretary of State to keep him off the ballot.

He also brought up an independent declaratory judgment he sought in district court that was criticized as meaningless by several legal experts at Baylor University.

Birdwell noted that even with questions raised during the special election about his eligibility, “60 percent of the voters cast their vote for me.”

“I look forward to putting these accusations to bed,” he said.

In a news release, Cullar said, “I’m going to run a comprehensive campaign, and part of that is analyzing if my opponent is eligible to represent the people of (Senate District) 22.”

Cullar also made a point of highlighting his long-standing residency in McLennan County, drawing a contrast with his opponent, who moved to Granbury in 2007, a few years after his retirement.

If Birdwell is determined to be ineligible after Aug. 20, his name will remain on the ballot. Under the election code, if an ineligible candidate wins, the seat becomes vacant.

The Second Court of Appeals, where the writ was filed, has jurisdiction over a 12-county region, including Hood County where Birdwell lives.

Cullar and the party are being represented by Houston lawyer Chad Dunn, who is also the party’s general counsel.

State GOP chairman Steve Munisteri is named as a respondent in the suit and Birdwell as party of interest.

A Birdwell campaign representative could not be reached late Friday to determine who, if anyone, was representing the senator.

mshapiro@wacotrib.com

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