The city has again told Gary Boren he can’t 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 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 also offered the city a chance to comment. If that invitation is later accepted, we will provide an update.
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.
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.”
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.
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