Earlier this month, the Texas Democratic Party’s legal counsel ruled that a top candidate for interim chair is ineligible as long as he continues to serve on a county tax board.
Yesterday, that candidate, Kendall Scudder, announced that he would resign from that board, the Dallas Central Appraisal District Board of Directors.
Though Scudder has alleged that the challenge to his eligibility was meant to sow doubt, the former judge on the party’s executive committee who asked for the legal review told Reform Austin on Friday that she wanted to avoid a legal vulnerability that state Republicans could exploit.
Documentation of the legal arguments on both sides obtained by Reform Austin offer a detailed timeline of the issue.
New rules
The central issue of the dispute is changes to state and party election rules.
In 2021, as then-Republican Party Chair Allen West was taking heat from some Republicans over his decision to run for governor without stepping down from his party role, the Legislature changed state election laws to require that, “to be eligible to be a candidate for or to serve as an officer of a political party, a person must … not be a candidate for nomination or election to, or be the holder of, an elective office of the federal, state, or county government.” That condition exists for both the Republican and Democratic parties.
Then, last year, on Dec. 14, the State Democratic Executive Committee approved its latest set of rules, which mimicked that condition, stipulating that “the holders of elective office of the federal, state or county government are not eligible to be a candidate for State Chair.”
Four days later, Scudder filed his candidacy paperwork.
The decision
Enter Susan Criss, a former state district judge who represents the state’s 31st Congressional district on the party executive committee, a district that has been represented by Round Rock Republican John Carter since its creation following the 2000 census.
In a phone interview with Reform Austin on Friday, Criss denied that her challenge to Scudder’s candidacy was an attempt to damage his popularity ahead of the election. She initially leaned toward backing Scudder in the party chair race because of his endorsement by the party’s labor advocates, she said, as her father was a labor leader.
But her opinion changed when a smaller group of labor leaders in Houston — “who were actually in my dad’s district” — endorsed Lillie Schechter, the former chair of the Harris County Democratic Party, who announced that she would pursue the chair shortly before the late January filing deadline.
Scudder could not be reached for comment on this story late on Friday.
By the time that Texas Democratic Women was holding its statewide convention in early February, Criss said that Scudder’s questionable eligibility was “starting to be brought to my attention.” At the convention, she told Scudder that it was concerning some members of the board, and that she was worried that it would leave the party vulnerable to a lawsuit — “my concern is, if you win and then it becomes a problem and it’s too late to do something about it,” she paraphrased on Friday.
Articulating later in the interview, Criss explained: “The problem is, if he wins, then the Republicans are gonna say, ‘Oh, don’t worry about it. It’s not a big deal?’ No, they’re going to use anything they can to, number one, stop us from voting, and number two, stop our people from getting elected in any way, shape or form.”
“They’re going to wait till our candidates for statewide office go to the county, go to the state headquarters, file to get their names on the ballot, when it’s too late for anybody else to file, and then they’re going to sue us,” she elaborated later in the interview.
At the convention, Scudder reassured her that his seat wouldn’t be a problem, she said.
When Democratic strategist Matt Angle highlighted the potential violation in a newsletter about a week later, she said, she began taking that concern more seriously. Again, she approached Scudder, asking him about the legal basis for his understanding that the board would not count as a county or state elective office.
Scudder said that nothing in state law indicated that the appraisal district’s board was a county or state office. He also indicated that if he resigned, Republicans would be in charge of appointing his successor, Criss said on Friday.
The challenge
Later that day, she submitted a letter to Gilberto Hinojosa, the outgoing chair of the party, and to the party’s legal counsel describing her understanding of the party rules and state election code and her concern about the violation, and asking counsel “to rule on the following question: Since Kendall Scudder is currently an elected member of the Dallas Central Appraisal District Board of Directors is he eligible to run as a candidate for and serve as the Interim Texas Democratic Party Chair at this time?”
She explained that her question was grounded in legal concerns.
“My question has nothing to do with his skills, integrity or commitment to this party. This is purely a legal question about whether the law permits his candidacy at this time,” Criss wrote. “We have to be sure that our process is above board and legally correct. If we do not then the GOP will attack us for it later.”
She added later in the letter: “I am quite fond of Mr. Scudder. I also have endorsed a different candidate in this race. This decision must be made without fear or favor per our rules. I wish Mr. Scudder would have just resigned his position on the tax appraisal board and I told him that. Since he did not resign from the appraisal board he jeopardized his own candidacy.”
A heated response
Two days later, Chad Dunn, the party’s chief legal counsel, replied to both members with a timeline for Scudder to reply to Criss’s allegations. On Feb. 28, Scudder’s legal counsel, Donald H. Flanary Jr., sent a seven-page response to the letter.
Flanary repeatedly attacked Criss in his response, calling her citation of statutes without legal opinions “pure nonsense” and describing her “epistle” — the Feb. 19 letter — as “a 4-page rambling, mostly self-serving ad hominin attack on Mr. Scudder.”
“Much of what Criss writes … is not true, self-serving, unnecessarily divisive, moot, and adds nothing substantive to the issue of whether Mr. Scudder is eligible to run for and serve as Texas Democratic Chair,” Flanary wrote elsewhere in the letter. “Most of Criss’ February 19, 2025 letter … is nothing more than self-serving claptrap and an attempted political hit job.”
Flanary also protested Hinojosa’s “ignorance of the facts” by writing in an Feb. 21 email that “I believe that it will be necessary to consider the Judge Criss Objection/Complaint at the March 29, 2025 SDEC meeting before the election.”
To justify Scudder’s eligibility, Flanary cited a 1980 Texas Supreme Court decision about oil and gas leases to argue that the appraisal board should count as an agency, department or board of the state rather than a political subdivision, thus being exempt from the state law, and a 2002 state attorney general’s opinion about whether school board trustees can serve as party chair.
He argued that the statute of limitations to challenge Scudder’s candidacy had passed, too, because the party’s nominations committee met virtually on Jan. 30 to formally nominate all eligible candidates — and found one candidate ineligible — without challenging the eligibility of Scudder.
Counsel’s ruling
In a final ruling on March 12, Dunn concluded that Criss’s concerns were founded: Scudder is ineligible to run for or hold office under the state election code as long as he remains on the appraisal board. The appraisal board is a state or county elective office, and Criss’s complaint was timely.
But Dunn also identified a bigger problem with the state election code itself: The Constitution.
The election code in question, “if enforced in court, is likely to be held to violate the speech and assembly rights preserved by [the] First Amendment to the U.S. Constitution because the statute purports to direct the affairs of a private political party on matter (who is its executive leadership) that the government has not sufficiently weighty basis to support,” he wrote.
Still, Dunn’s ruling presented a simple solution for Scudder’s predicament: resigning from the appraisal board.
“My opinion that Scudder is ineligible per party rule is not irreparable to his candidacy,” Dunn wrote. “The beliefs of the Democratic Party are right there in our Rules (Art. II) and include commitment to the “flexibility” of our organization, the rule of law, and that power shall be vested in the hands of voters. … The is no legal reason that Scudder cannot achieve eligibility before the March 29 election.”
The State Democratic Executive Committee’s 121 voting members will vote for the next party chair on Saturday, March 29, using a ranked-choice election.
A candidate forum will be held in Austin on Friday for candidates in the race.
