Sen­a­tor cast 2 votes in same 2004 elec­tion

records from Vir­ginia could cost bird­well his state post

Austin American-Statesman - - METRO &STATE - By Ross Ram­sey

The new­est mem­ber of the Texas Se­nate, Brian Dou­glas Bird­well, voted in the Novem­ber 2004 pres­i­den­tial elec­tion twice, mak­ing his choice be­tween Ge­orge W. Bush and John Kerry in Tar­rant County and again in Prince Wil­liam County, Va., ac­cord­ing to elec­tion records in the two states.

Bird­well’s record of vot­ing in Vir­ginia from 2004 through 2006 would seem to place his res­i­dency in that state, not in Texas. That could im­peril the Repub­li­can’s spot in the Leg­is­la­ture be­cause to serve in the Texas Se­nate, a can­di­date must re­side here for at least the pre­vi­ous five years. Bird­well cast a Vir­ginia bal­lot in Novem­ber 2006; if that’s enough to es­tab­lish him as a Vir­ginia res­i­dent — an is­sue that can be set­tled only in court — it means he’s not el­i­gi­ble to serve in the Texas Se­nate un­til at least Novem­ber 2011.

Vot­ing in the same elec­tion twice is a third­de­gree felony in Texas.

Bird­well did not re­spond to re­quests for an in­ter­view, though his for­mer cam­paign aide and now Se­nate chief of staff, Casey Kel­ley, re­quested and re­ceived a copy of the doc­u­ments in ques­tion to brief his boss.

In­stead, they is­sued this state­ment via email: “These ques­tions have been asked and an­swered by the vot­ers of (Se­nate District 22). My can­di­dacy was cer­ti­fied by the Sec­re­tary of State. My case was up­held by an ap­pel­late judge. I was elected over­whelm­ingly by the peo­ple. I was sworn into of­fice by both the Gover­nor and Lt. Gover­nor of Texas, and I just

re­ceived a unan­i­mous vote to be the Repub­li­can nom­i­nee for Novem­ber. I think it’s time to move on now and get down to the busi­ness of serv­ing the peo­ple of SD-22.”

Bird­well bested three other can­di­dates who sought to suc­ceed state Sen. Kip Averitt, R-Waco, in a spring spe­cial elec­tion. Averitt filed for re­elec­tion last year but changed his mind af­ter it was too late to get off the bal­lot. He didn’t cam­paign, but he eas­ily won the GOP nom­i­na­tion in March any­way.

He then re­signed, forc­ing a spe­cial elec­tion for the re­main­ing months of his term.

In that race, Bird­well faced Burleson busi­ness­man Dar­ren Yancy, for­mer state sen­a­tor and Waco Mayor David Sibley and Gayle Avant, a Bay­lor Uni­ver­sity po­lit­i­cal sci­ence pro­fes­sor.

He fin­ished sec­ond in the first round but pre­vailed in last month’s runoff against Sibley.

Averitt with­drew his name from the nom­i­na­tion for the next term, and a ma­jor­ity of the district’s county Repub­li­can chairs voted last week to re­place him on the Novem­ber bal­lot with Bird­well.

Bird­well’s el­i­gi­bil­ity dogged his cam­paign all along, at­tract­ing news cov­er­age and gen­er­at­ing talk in po­lit­i­cal cir­cles. State law re­quires sen­a­tors to have lived in the state for the five years be­fore they take of­fice and to have lived at least the past 12 months in the dis­tricts they seek to serve.

Two years ago, Bird­well was en­cour­aged to run for the Texas House against state Rep. Jim Kef­fer, R-East­land. He opened a cam­paign ac­count with the Texas Ethics Com­mis­sion but with­drew be­fore fil­ing for of­fice.

House mem­bers have to live in the state for at least two years; the is­sue then was whether Bird­well, who re­turned to Texas from Vir­ginia in May 2007, had been around long enough to qual­ify. If that date were the stan­dard now, he would be too new to the state to qual­ify for the Se­nate with its five-year res­i­dency re­quire­ment. An­other, ear­lier date — Novem­ber 2006, when Bird­well last voted in Vir­ginia — may hold the key to whether he’s a le­gal can­di­date.

Lawyers for the Repub­li­can Party haven’t looked into Bird­well’s case, ac­cord­ing to Bryan Pre­ston, a party spokesman, who said the mat­ter was left to the cam­paign.

Tex­ans for Law­suit Re­form, which backed Bird­well in the spe­cial elec­tion, did re­search the res­i­dency ques­tion and de­cided he is el­i­gi­ble, ac­cord­ing to Sherry Sylvester, a spokes­woman for the group.

Bird­well was work­ing in the Pen­tagon on the day of the Sept. 11 attacks. He was crit­i­cally burned when ter­ror­ists dove a pas­sen­ger jet into that build­ing and spent years in Vir­ginia re­ceiv­ing the med­i­cal care he needed, first to stay alive, and then to be nursed back to health.

He re­mained in the Army un­til June 30, 2004 (he’s now a re­tired lieu­tenant colonel), and he and his wife, Mel, bought land on Lake Gran­bury, south­west of Fort Worth, in Oc­to­ber 2005. They built a house and moved back to Texas from Vir­ginia in May 2007.

Bird­well at­tempted to ad­dress the res­i­dency ques­tions him­self, fil­ing in Hood County District Court for a declara­tory judg­ment this year to set­tle the con­tro­versy. His fil­ing in­cluded his mil­i­tary records and records of his prop­erty in­ter­ests in Texas. It didn’t in­clude his Vir­ginia or Texas vot­ing records, though his plead­ing makes ref­er­ence to his vot­ing. And it as­serts, “Just be­cause Col. Bird­well owned a home and voted in Vir­ginia does not con­clu­sively es­tab­lish any­thing re­gard­ing the el­e­ments prov­ing Texas res­i­dency un­der Texas law.”

He got the judg­ment he sought, though no other par­ties tes­ti­fied or brought ev­i­dence.

Brian Bird­well got med­i­cal care af­ter 9/11 in Vir­ginia.

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