The city has again told Gary Boren he cannot run for the District 4 City Council seat – responding in a filing with the Seventh Court of Appeals in Amarillo after business hours Monday.
Boren filed in late March for the June 27 special election to fill the seat of outgoing Councilman Brayden Rose. Boren later received a notice from City Secretary Courtney Paz saying his name would be excluded from the ballot.
She cited state law saying he must be a resident of the district for six months – not the two months indicated on his application.
Boren also cited state law saying a City Charter (which Lubbock has) can have a different residency requirement. Lubbock’s charter calls for someone to be a “bona fide” resident as of the day of filing.
“This is wasting taxpayers’ money,” Boren told LubbockLights.com after the city filed its brief to the Seventh Court.
The city hired an outside law firm instead of writing a response with its own legal staff, he said.
“If attorneys can’t run a brief to the Seventh Court of Appeals, my gosh, what’s going on?” Boren said.
LubbockLights.com asked the city to comment and as of yet, they haven’t. If they do, we’ll provide an update.
After this story was first published, Boren’s attorney, Eric Opiela, filed a rebuttal to the city (see more below) and offered additional comments.
Quick refresher, ‘mandamus’
Boren filed a request for “mandamus” directly to the appeals court to force the city to let him back in the race.
Mandamus is in some ways like a lawsuit but it’s only available when the facts are undisputed and the only thing left to decide is an interpretation of the law. It also allows both sides to bypass State District Court in Lubbock.
Boren filed on April 7. The Seventh Court of Appeals gave Lubbock until Tuesday (April 14) to respond.
- Click here to read the city’s response.
- And click here to read Boren’s written rebuttal.
Is the charter silent?
The city is raising a technical legal issue to the Seventh Court. The charter only calls for someone to be a bona fide resident at the time of filing. But bona fide resident is not defined.
“The Charter does not affirmatively prescribe any ‘different’ durational requirement,” the city’s response said.
Rather than set a residency requirement at zero, the charter never addresses length of residency, according to the city. So that means it falls back to state law – six months.
The city said in part:
“The Charter requires candidates to be bona fide residents within the city and within the applicable District ‘at the time of filing for office.’ That provision identifies the moment at which residency is assessed. It establishes a point-in-time test. It is silent as to how long the candidate must have maintained that residency before filing. The verb ‘prescribe’ demands an affirmative act — the establishment of a definite, stated standard. Omitting a durational requirement is not the same as prescribing a shorter one. Where the Charter is silent on duration, the default requirement of § 141.001(a)(5) clearly fills the gap.”
The city legal brief said the six-month requirement is public knowledge and on the city’s website.
Referring to the web page, the city’s brief said, “It is undeniable that the City of Lubbock has a longstanding tradition of requiring the six-month district residency requirement … ”
Boren took issue with that.
“They even affirmed that on their own website, but guess what they did? They went in and changed it,” he said.
LubbockLights.com used an Internet archive literally called the Wayback Machine. We looked at the webpage listed in the city’s response.
The archive showed the residency requirement was listed in December 2023 but not June 2023. In June there was no state residency requirement – only “[candidates] … shall be bona fide residents within the City and within the applicable District at the time of filing for office.”
A rebuttal was filed
Opiela told LubbockLights.com the city is “flat wrong,” and the charter is not silent like the city claimed.
“It does very clearly prescribe the residency requirement. It describes it as a point in time. And that is different than the six-month or 12-month residency requirements. … Since those are different requirements, the charter requirement is the one that governs,” Opiela said.
“Their reading guts the City Charter altogether because it’s meaningless to have a point in time test when you have a six month test overlapping it,” Opiela further explained.
The rebuttal said in part, “[The city] is asking this court to violate the fundamental principle of never rewriting a statute ‘under the guise of interpreting it.’”
“The law as written includes [the] express authorization of charter-prescribed residency requirements. Applying the law as written means giving effect to that authorization — which is precisely what [Boren] asks this court to do,” the rebuttal document said.
Boren filed twice
Boren submitted a second application to be on the ballot April 7 – just to clean up a clerical issue on his first application. The city rejected the second application Monday – on the very same basis as the first. Boren lived in the district for two months – not six months or more.
