The Texas Governor’s race just got a bit more interesting. The Fourteenth Court of Appeals in Houston has provided notice to the Texas Attorney General’s office that the constitutionality of a statute of this state has been challenged by appellant James Alan Jenkins. In representing James Alan Jenkins, the first of The Woodlands Road Utility District defendants to be convicted, George McCall Secrest outlines the two points of error.
Point of error number one (emphasis mine):
“The trial court reversibly erred by refusing to include in its charge to the jury an instruction on the defense of mistake of law which was raised by both the evidence and specifically requested by defense counsel”
Point of error number two:
“Section 1.015 of the Election Code is unconstitutionally vague as applied to the defendant herein because the definition of residence is fatally ambiguous and encourages arbitrary enforcement of the penal law in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution”.
As explained in the appellant brief, Jenkins made the decision to change his residence to the Residence Inn only after consultation with legal counsel and ironically, after careful review and reliance on the opinions & documents suggested by some of the very legal authorities who testified against him. Admitted into evidence was Texas Secretary of State Election Law Advisory Opinion GSC-1 which set forth the legal definition of residence. Based on the seminal case on residency, Mills v Bartlett, it was the very case David Jennings wrote about in his article on the TRO filed by Roy Morales against Michael Kubosh. Don Hooper also wrote about the defense of mistake of law in the article about the case against Clyde Bryan & Eric Dick (here).
Opinion of Attorney General – Opinion No.- GA 0141 was also entered into evidence by the defense during the trial. That opinion of the Texas Attorney General, also in reliance on Mills v Bartlett explains (emphasis mine):
“The intention of the voter registration applicant is crucial to a proper determination of residence and every person is strongly presumed to have the ‘right and privilege of fixing his residence according to his own desires’”
The brief makes clear the Secretary of State advisory opinion and the Mills v Bartlett opinions were issued by the very same authorities Montgomery County First Assistant District Attorney Phil Grant suggested Jenkins consult in a letter Grant sent to Jenkins (and others) prior to the May 2010 RUD election.
Yep, the Republican nomination for Governor of the State of Texas just got a bit more interesting.