Dallas Morning News wrong on Texas law in article about Hodge-Johnson race

Posted on 02 Feb 2010 at 5:01pm
Eric Johnson (left) and Terri Hodge
Eric Johnson (left) and Terri Hodge

In Friday’s Dallas Voice, Texas House candidate Eric Johnson said District 100 could be without a representative if incumbent Terri Hodge wins. He repeated that statement at a debate at St. Luke Community United Methodist Church.

In an article about the debate, Dallas Morning News reporter Gromer Jeffers Jr. said Johnson’s “facts weren’t quite right” — meaning that the Dallas Voice got it wrong as well.

Well, not according former Dallas County Democratic Chair Susan Hays or the Texas Secretary of State’s Office.

Hays agreed with what I wrote and contradicts The Morning News.

She said, “The statement that Johnson was ‘incorrect’ about what happens if Hodge is convicted of felony bribery is incorrect.”

For her full statement, scroll down to readers’ comments and find Hays’ explanation.

Jeffers wrote:

But Johnson’s statement about the fate of the district if Hodge is convicted in March was incorrect. If she wins the primary but can’t serve, the district would still be represented for the next legislative session. County precinct chairs inside District 100 would pick a nominee to represent the Democratic Party in the general election.

Jeffers would be right only if Hodge were found ineligible to serve before Aug. 20.

Aug. 20 is the last date that a candidate may be replaced on the ballot, according to the state’s election guide Web site.

The constitution reads:

A candidate’s name shall be omitted from the ballot if the candidate withdraws, dies, or is declared ineligible on or before the 74th day before election day.

In the Texas election code, a candidate may not be removed from the ballot before the deadline, except under certain circumstances. This is to prevent officials from removing people that they just don’t like. Even when under indictment, a candidate may not be removed from the ballot. Even after conviction, a candidate may not be removed from the ballot if an appeal is in place.

The law reads:

Sec. 145.004.  FINAL JUDGMENT REQUIRED FOR ADJUDICATION OF INELIGIBILITY.  A candidate’s entitlement to a place on the ballot or to a certificate of election is not affected by a judicial determination that the candidate is ineligible until a judgment declaring the candidate to be ineligible becomes final.

Sec. 145.039.  DECEASED OR INELIGIBLE CANDIDATE’S NAME TO APPEAR ON GENERAL ELECTION BALLOT.  If a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.

And under article III, § 8 of the Texas Constitution, the House decides its own membership. So if Hodge is convicted and not yet ineligible to serve because all appeals are not yet exhausted, the House could determine not to seat her and the seat would remain vacant until the governor calls a special session.

If a deceased or ineligible person wins the election, the win is recorded and “the resulting vacancy shall be filled in the regular manner.”

Randall Dillard, director of communications for the Texas Secretary of State’s Office, agreed that if final disposition of the case does not occur by the Aug. 20 deadline, the seat could remain vacant. In the Don Hill case, for example, Hill was convicted in October and has not yet been sentenced. Final disposition means sentenced. In the Enron/Ken Lay case, Lay was convicted but died before sentencing. His conviction was vacated.

Dillard said, “If a person is elected to the Texas House, the governor has the authority to call a special election.” He said the governor does not have the authority to appoint, but within 20 days must call a special election. The election would be held in March. If a runoff were necessary, that election would be held about four weeks later. He agreed that in those circumstances, the seat would remain vacant until a replacement was elected.

Juan Ayala with the Johnson campaign said, “We think it’s important for journalists covering the story to get it right. We’re saying this because we looked at the law.”

The district could remain without representation for part of the session, as we said and as Johnson said.

Dallas Voice stands by our story.

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