County Judge Fitzgerald Issues Demand

LIBERTY, August 22, 2010 - After business hours on August 17th, 2010 lame duck, Liberty County Judge, Phil Fitzgerald, delivered a Demand Letter to Liberty County Democratic Party Chairman, Nancy Archer.

Fitzgerald in his letter demands that Archer and the Democratic Party Executive Committee, remove County Judge Candidate, Ken Morrison from the November Ballot and appoint a replacement.

Fitzgerald is basing his demands on challenging Morrison’s residency in Liberty County.

According to Archer, Fitzgerald hopes to be considered for the ballot position by the Executive Committee.

Fitzgerald lost in an overwhelming defeat to challenger, Ken Morrison in the Democratic Primary earlier this year.

Nancy Archer at Press Conference on Saturday

If Fitzgerald wanted to challenge Ken Morrison’s residency, he could have asked and received a hearing by the State Democratic Party prior to the primary election when he in fact had standing to do so. Once the Primary Election was over, Fitzgerald lost his standing to challenge Morrison’s residency. Fitzgerald was advised of this long before the primary elections were held in the Spring of this year.

The timing of Fitzgerald’s demand letter is significant. Any appointing a person to take Morrison’s place on the November ballot must occur 74 days prior to the November Election. In presenting Archer with his Demand Letter on Tuesday, August 17, 2010 and the 74th day prior to the November election coming on August 24th, Fitzgerald gave Archer and the Democratic Executive Committee only three days to take any action or to go through a lengthy investigation of his claims. The timing by Fitzgerald of his Demand Letter doesn’t look like a coincidence. When looking at a time line of events and deadlines it appears to be planned.

But Fitzgerald’s demand letter does not stop there. After making his demands he then reminds Archer of his role as County Judge in Certifying any election and makes a veiled threat to use his office to see to it, that if his demands are not met, he will not certify the election results thus voiding the entire election for County Judge which would then have to be done over at the next election time in Spring of 2011.

In other words, Fitzgerald, using his position as County Judge, is telling Archer, give me what I want now, or you’ll have to deal with me later.

Although there are legal guidelines in Texas in determining residency, in Texas, residency is a question that must be decided on a case by case basis in a court of law.

In his demand letter to Archer, Fitzgerald alleges that Ken Morrison has not been a resident of Liberty County for more than the required six months prior to the primary election earlier this year and as proof Fitzgerald states that Morrison voted in Harris County in an election that occurred in November 2009.

Morrison admits to voting in this election in Harris County in November of 2009.

Remembering that establishing residency has much to do with your intentions and that many factors enter into a courts decision to determine residency, let’s look at what Ken Morrison’s intentions were and just how far back those intentions were made clear.

In January of 2008 Ken Morrison decided to put his home in Harris County, which he declared a homestead in Harris County on the market to be sold. He also purchased land near Dayton for his retirement home in Liberty County.

In June of 2009 Morrison moved a trailer onto the property in Dayton he purchased three and a half years ago as a temporary residence until he could build his retirement home on the property in Dayton.

As we all know, in these economic times, selling a home can be difficult and can take time. Morrison’s home in Harris County was on the market for two and a half years until a buyer was found and the home was sold.

During this time, Morrison established himself in Liberty County in all of the following ways, all of which are discussed in Attorney General’s Opinions as factors that can be considering in determining or establishing residency.

1. Exercises Civil and Political Rights – Morrison exercised his rights by voting in our most recent election as a registered voter in Liberty County.
2. Pays Taxes – Morrison pays taxes in Liberty County.
3. Owns Real & Personal Property – Morrison has owned property in Liberty for two and a half years and has a trailer on his property
4. Has Driver’s Licenses and Other Licenses – The address on Morrison’s Driver’s licenses and other licenses list his address in Liberty County.
5. Maintains Bank Accounts – Morrison has a bank account at a local bank in Dayton.
6. Belongs to Clubs – Morrison is a member of the American Legion in Dayton and the Elks Lodge in Liberty.
7. Belongs to Churches – Morrison is a member of the Calvary Baptist Church in Dayton and has previously served as its’ Music Director.

Morrison’s intentions seem clear by his own actions in establishing south Liberty County as his home.

Morrison’s voting in Harris County in November of 2009 could, if taken alone, indicate that Morrison thought of himself as a resident of Harris County. However, voting is only one of many ways to establish residency and no single fact or action appears to determine residency in the courts.

Concerning Morrison’s voting in Harris County in November of 2009 he states, “I did vote in the November 2009 election in Harris County because as you have pointed out. It is a long involved process to change ones residence and when the November constitutional issues election came up I realized I had forgotten to change my voter registration to Liberty County and voted with the only voter registration I had as I had done for the last 43 years. Fifty years ago when I was 14 years old my father made a point to take me to the polls with him to teach me how to vote and the importance of voting. He made it very clear that every citizen has the responsibility to perform his civic duty and to vote. All my life I have taken that responsibility very seriously and have tried to always defend and to exercise my right to vote.”

There is currently a case involving a challenge to the residency of Texas State Senator Brian Birdwell who was sued over whether he was a resident and thus eligible for public office in Texas. It was asked in the lawsuit that Birdwell be removed from the ballot in the 2010 November election.

Birdwell voted in Virginia and then came to Texas and voted here as well.

In an opinion filed yesterday by Justice Lang of the Fifth District of Texas Court of Appeals, Justice Lang wrote, “…Voting histories and other public records… do not conclusively establish Texas was not Birdwell’s Permanent residence…”

Fitzgerald claims in his letter to Archer that, “Laws and public records pertaining to voters and residential homestead exemptions conclusively establish that the current Democratic Candidate for Liberty County Judge, Ken Morrison, is legally ineligible to be a candidate for County Judge of Liberty County.”

In fact Fitzgerald hangs his entire argument against Morrison on where Morrison voted and the fact that he claimed a homestead exemption on a house in Harris County that took years to sells after Morrison put it on the market.

The Fifth Circuit Court of Appeals in its’ opinion filed on Friday, states clearly that voting records alone don’t establish conclusively a person’s residence as Fitzgerald claims in his demand letter to Archer.

Fitzgerald tells Archer in his letter that, “time is of extreme essence,” and if she fails to act now, he threatens to act later as the, “Presiding officer of the final canvassing authority, after the election… which is the County Judge (Fitzgerald himself).”

The entire Commissioners Court canvass the election and not Fitzgerald alone.

Archer closed her press conference on Saturday at Democratic Headquarters by saying, “With the decision now established, as well as my deep belief that the voter’s decision must always be respected, I am again pleased and proud to reconfirm that Mr. Kenneth Morrison is the Democratic Party’s candidate for Liberty County Judge. He will make us proud!”

Fitzgerald’s demand letter to Archer click HERE

Archer’s Statement from Press Conference click HERE

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