HARRIS COUNTY DA: Is Rosenthal Really Out?

The battle continues to rage over whether or not Harris County District Attorney Chuck Rosenthal is legitimately no longer a candidate for District Attorney of Harris County.

The Houston Chronicle, Professors R-squared (a GOP blog), and Houston attorney Mark Bennett at Defending People have all taken a serious look at this.

For our money, the Harris County Republican Party should have never accepted Rosenthal’s withdrawal letter because it was, for lack of a better word, incomplete. It was not a withdrawal letter. Of course, the HCRP should have known this, and duly rejected the letter.

Texas Election Code Sec. 145.001 prescribes some standards for a withdrawal by a candidate:

§ 145.001. METHOD FOR WITHDRAWAL AS CANDIDATE. (a) To withdraw from an election, a candidate whose name is to appear on the ballot must request that the candidate’s name be omitted from the ballot.

(b) To be effective, a withdrawal request must:

(1) be in writing and be signed and acknowledged by the
candidate; and
(2) be timely filed with the appropriate authority as
provided by this code.

(c) A withdrawal request filed by mail is considered to be
filed at the time of its receipt by the appropriate authority.
(d) The time of a withdrawal is the time that an effective
withdrawal request is filed.
(e) This section does not apply to a candidate for president
or vice-president of the United States.

Rosenthal’s letter did not meet the second part of the two-pronged test prescribed by subsection (b). The letter was not, as the Professors noted, “acknowledged.”

Section 121.004 of the Texas Civil Practices and Remedies Code defines what it means for an instrument to be “acknowledged:”

§ 121.004. METHOD OF ACKNOWLEDGMENT. (a) To
acknowledge a written instrument for recording, the grantor or
person who executed the instrument must appear before an officer
and must state that he executed the instrument for the purposes and
consideration expressed in it.

The statute goes on to provide detailed provisions about what the officer acknowledging the instrument must do.

The Civil Practices and Remedies Code, at Section 121.001, further states what officers may take acknowledgments (note, subsections (4) and (5) of 121.001 don’t apply in this case, so they are omitted from the below):

§ 121.001. OFFICERS WHO MAY TAKE ACKNOWLEDGMENTS OR PROOFS. (a) An acknowledgment or proof of a written instrument may be taken in this state by:

(1) a clerk of a district court;
(2) a judge or clerk of a county court;
(3) a notary public;

Both of these subsections will likely raise interesting arguments when this case (we say when because it is pretty much a foregone conclusion) reached a courtroom.

First, the Harris County GOP (and likely the other GOP candidates who filed for the primary and now want to remain on the ballot) will argue that the term “acknowledged” can be met by the mere signature, or that the term has a different meaning in the election code. It simply does not.

They’ll have a problem with this argument. For one thing, Rosenthal passed, at one point in his career, a bar exam. So, he should well know what the term “acknowledge” means. Further, if he was unsure what he had to do to withdraw from the race properly, he should have consulted the Election Code, which he could have easily accessed on the Internet. In addition, the GOP officials have literally no excuse for not realizing that the letter was insufficient.

There is one other issue with the “acknowledge” argument that Democrats can use. The purpose of acknowledging the instrument before a notary or other official is essentially to prove that the document is not coerced and is made by an individual of sound mind. Given Rosenthal’s immediate dalliances to get back in the race, one can argue that the acknowledgment requirement was created specifically for situations like the one involving Rosenthal. Rosenthal was no doubt under tremendous mental strain–and pressure form the GOP–to get out of the race. If his true intention wasn’t to do so, the acknowledgment route, in theory, would either make him think twice about it or an officer would fail to acknowledge it if he was less than genuine.

The other issue with the letter is that Rosenthal improperly worded the text. He he asked that the party, “withdraw my nomination.” The fact is that Rosenthal was not nominated and was not the nominee and thus, there was no nomination to withdraw.

We’ll go out on a limb to say that the letter will be deemed by the courts as insufficient, meaning that the two-day extension on the filing period and the additional candidates were in error, and that there will, in fact, be no GOP nominee.

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