January 12, 2006

Senate Candidate Wins Round in Court as Other
Contenders Brace for Possible Eligibility Fights

By Mike Hailey
Capitol Inside Editor

Montgomery County businessman David Kleimann appears to be returning to the lineup of Republicans battling for an open East Texas Senate seat while an Amarillo House contender takes her fight to save her campaign to the state Supreme Court and other legislative hopefuls brace for possible attempts to defuse their bids as a result of a constitutional provision that's had a wrecking ball effect in the statehouse elections so far this year.

Candidates who could be on thin ice in light of recent interpretations of Article 3, Section 19 of the Texas Constitution include El Paso School Board member Lorraine O'Donnell, who's challenging State Rep. Pat Haggerty in the primary election, and state Senate candidate Tim McCallum, a Rockwall City Council member who's gunning for State Senator Bob Deuell's seat in Republican primary voting less than two months from now.

Texas House candidate Brandon Creighton appeared to be a potential victim of the constitutional provision for the same reason that Kleimann's campaign was ruled invalid two days ago. State GOP officials removed Kleimann from the ballot after determining that he'd violated the state Constitution by filing for the Senate at a time when he was still serving on a groundwater conservation district board for which he supposedly received pay and per diem. Creighton serves on the same water board as Kleimann.

But Creighton, who's running for the seat that State Rep. Ruben Hope is giving up in favor of a judicial bid, got a break Wednesday when Montgomery County Republican Chairman Wally Wilkerson reportedly indicated that he didn't plan to strike the candidate from the ballot in House District 16. The Montgomery GOP has the first call in Creighton's case because he had to file his bid for the House locally in a district contained solely within one county. Creighton's campaign could still be derailed, however, if one of the other two Republicans or the one Democrat or one Libertarian candidate were to successfully challenge his candidacy under the terms of Article 3, Section 19.

In a decision that reversed a Texas GOP ruling that knocked Kleimann off the March 7 primary ballot earlier this week, State District Court Judge Suzanne Stovall of Conroe granted the candidate's request for a temporary restraining order and a temporary injunction to force state Republican officials to reinstate him as a candidate in the Senate District 3 race. Stovall, a Republican jurist, ordered Texas Republican Chairwoman Tina Benkiser and the state party to have Kleimann's name back on the ballot by 5 p.m. Thursday and to be sure that he's on the list of candidates that the GOP submits to the Secretary of State that day.

While the Kleimann campaign was in the process of winning a critical court battle in the Senate contest, lawyers for Amarillo school board member Anette Carlisle were preparing to travel to Austin in order to file a lawsuit Thursday seeking the same basic relief that the Senate candidate was granted at the district court level.

Carlisle and other candidates who've become tangled in the web of Article 3, Section 19 have disputed the Republican Party's interpretation of what constitutes a "lucrative" office that is subject to the provision. Carlisle's campaign says she supplied evidence showing that her position as a school trustee has not provided the kind of compensation or expense payments that would put it under the constitutional provision. Carlisle and the other candidates who have appeared to run afoul of Article 3, Section 19 have been serving in local elected or appointed positions and continued to hold those when they filed for legislative campaigns in this year's primary. The Texas Constitution says that candidates who already hold lucrative offices cannot run for the Legislature if the term they hope to win overlaps with the term of the office they currently represent.

McCallum may have been thinking ahead of the curve last summer as the author of a city ordinance to end compensation for council positions so they would no longer be considered lucrative. But his eligibility as a legislative candidate could depend on whether or not the state GOP or the courts determine that the council position was still lucrative when McCallum filed for the Senate because he was still serving the same term for which he'd received compensation for several months before the ordinance took effect in September.

To the west, El Paso County Republican Party Chairman Michael Moore reportedly received documents Wednesday that raise questions about whether O'Donnell had been entitled to per diem expenses during her service on the local school board. O'Donnell is one of a half-dozen Republican challengers who are trying to knock off incumbents who've been targeted in the primary by influential GOP forces unhappy with them for bucking the party on key votes at the Capitol. O'Donnell - the director of continuing education at the University of Texas at El Paso - has support from some of Governor Rick Perry's most high-profile contributors in that Texas city.

Capitol Inside reported last month that some Texas House and Senate contenders were on possible collision courses with the constitutional prohibition that has given some candidates fits in the first two weeks of the new year. A number of officials who'd been elected to local offices or appointed to state boards resigned their positions right before filing for the Legislature in order to qualify under the terms of Article 3, Section 19.