Appeals court denied legal challenge from Renee Jefferson-Smith, who says she is moving on
ABOVE: Cynthia Bailey and Tarsha Jackson
A Texas appeals court has cleared the way for the delayed 2019 Houston City Council District B runoff by affirming a decision to leave a candidate with a felony conviction on the ballot.
That means top vote-getters Tarsha Jackson and Cynthia Bailey will compete in a yet-to-be-scheduled election for the seat, which has been filled by outgoing incumbent Jerry Davis since the other 15 council members and Mayor Sylvester Turner assumed their offices in January.
Last year’s crowded race for the open District B seat included 14 candidates. News reports before Election Day on Nov. 5, 2019 noted that Bailey had a 2007 felony conviction for theft over $200,000.
Jackson finished first with 3,324 votes and Bailey trailed her with 2,303 votes.
In several actions to prevent Bailey from participating in the runoff, third-place finisher Renee Jefferson-Smith, who received 2,139 votes, argued that Bailey was ineligible to hold office because of the felony conviction.
Jefferson-Smith sought a temporary injunction, which was denied by a Harris County trial court. She also tried to have Bailey administratively disqualified by the city.
Candidates in Houston check a box on their application forms swearing that they have not been finally convicted of a felony. The city verifies that the box is marked but doesn’t vet the accuracy of the claim.
District and appeals courts declined Jefferson-Smith’s emergency requests to remove Bailey from the runoff ballot. The entire race was pulled when Jefferson-Smith filed a second lawsuit formally contesting the results.
During a January bench trial before Judge Grant Dorfman, a special jurist assigned to hear the matter, Jefferson-Smith presented evidence that Bailey had been convicted. Bailey has argued that she is released because she completed her sentence and had her voting rights restored (Bailey is indeed a registered voter in Harris County).
Dorfman turned down Jefferson-Smith’s claims and ordered a May election, but that was derailed because of unresolved legal issues.
District B encompasses parts of northeast Houston including Greater Fifth Ward, Acres Homes, Greenspoint and the George Bush Intercontinental Airport. Its roughly 200,000 residents have gone nearly a year without a new City Council representative.
The Texas Election Code says that eligible candidates for public office must not have felony convictions from which they have “not been pardoned or otherwise released from the resulting disabilities”—but the statute doesn’t define that phrase. The ambiguity has led to varying interpretations and enforcement.
Neither the trial court nor appeals court directly addressed Bailey’s eligibility. Instead, both dealt with the city’s role and namely the mayor, to whom Jefferson-Smith directed her administrative request for Bailey to be declared ineligible.
This month, a three-judge panel of the First Court of Appeals for the First District of Texas issued a ruling that denied Jefferson-Smith’s appeal because “there is a fact question—whether Bailey has been pardoned—that the Mayor has no authority to consider” and because “a candidate is ineligible only when the record conclusively establishes the candidate’s ineligibility.”
The appeals court also clarified in its Aug. 11 ruling that making an eligibility declaration wasn’t a “duty imposed by law” on the mayor, was not within his authority to resolve and that he made no mistake in not doing so.
“We are extremely thrilled about the decision,” said attorney Oliver Brown, who is representing Bailey. “Cynthia is just interested in running her race, fair and square, against Ms. Jackson and letting the voters decide.”
Jefferson-Smith said she doesn’t plan to appeal the latest ruling, which would effectively end the nine-month dispute.
“We are even more elated that it appears that Renee Jefferson-Smith is now allowing the community to move forward and heal,” Brown added.
Attorney Larry Veselka, who is representing Jackson, said his client was “gratified” by the latest legal decision and looks forward to the having the runoff scheduled.
When the election can happen remains unclear, but that date is expected to be determined by Dorfman.
The runoff is a nonpartisan city election conducted by Harris County and Montgomery County, where a very small portion of District B extends.
The race is unlikely to appear on the general election ballot on Tuesday, Nov. 3, 2020.
When rescheduling a runoff for a contested race, “the runoff must be held on the same day of the week as the regularly scheduled runoff,” the Texas Election Code states.
The city runoff was Dec. 14, 2019, which was a Saturday.
“It’s going to mean that this race is going to be a standalone election,” Veselka said. “That’s a different issue of getting people to hear and know about it.”
Jefferson-Smith said she “can’t really say” if she’ll run for City Council again, but agrees that District B needs fresh representation now.
“I have decided to make it the end of the road for myself and my campaign,” Jefferson-Smith added. “Am I interested in still serving my community and keeping up the same commitment that I had as part of my campaign plan and my campaign strategy? Absolutely. A lot of those things that I talked about, I still plan on being able to do. I live in District B, I was born and raised here and I’m going to continue to be here.”