Did candidate for State Rep., and current City Councilman Pat Fallon, of Frisco commit a crime last fall when he registered and voted using an address of a house he rented in Denton County? That was the question asked by one of our readers recently, and hinted at in the comments to one of our other posts. At a time when Republican legislators claim rampant voter fraud, with scant or non-existent evidence, we thought it was worth looking into.
What We Know
We found that Fallon, a Republican, registered to vote in Denton County last October, switching his registration from Collin County. Fallon was in the process of having a house built in the Denton County portion of Frisco that falls within the newly drawn House District 106. According to Fallon, he was concerned that the house would not be completed on time to move in and establish residence by the November 6th deadline that would have applied under the primary schedule that applied at the time. So Fallon says he paid October rent on a house in the Frisco portion of the district, not far from where his new home was being built.
Voter registration cards were submitted for Fallon and his wife Susan on October 5th and 6th of 2011. Both cards were processed by Denton County on October 9th. Fallon and his wife both voted early, but on separate days; Fallon voted on October 26th and his wife on October 27th.
Election judges are trained to ask prospective voters to verify their address after presenting their identification to check in. The election judge we spoke to, Peggy Chenault, said that the wording of the question is very specific: "Will you please verify your address?" Chenault says they phrase it this way so that they're not giving out the address on record.
Records show that Pat Fallon would have verified residing at the rental property, and that he voted without incident. It was Susan Fallon's response to the question that raised a red flag for poll workers that day. Chenault says she remembers that when Susan Fallon checked in, the address she gave did not match. When the election worker asked Susan about 2118 Fox Ridge Trail, the address of the rental house, she reportedly responded "I don't know where that address is, and I've never lived at that address." As is the policy, election judges required her to fill out a Statement of Residence. Susan provided the address of their new home, (which they had yet to take title to) and was allowed to vote.
View HD 106 Candidate addresses in a larger map
Pat Fallon says that he leased the house and paid a full month of rent from October 1st - 31st, 2011. When asked if he could provide documentation that he lived at the residence, he offered to show us a copy of the lease, but dodged the more specific questions relating to whether or not he actually lived there. We tried to arrange a time to meet him to look at the documents, but he didn't return our call.
Interestingly, in an email from Susan Fallon to her neighbors dated October 17th, she announced that she would be moving to Denton County in the very near future, thus contradicting the voter registration cards that she and Pat Fallon had submitted earlier that month. If the move was in the very near future from October 17th, then it would indicate that they hadn't moved yet.
Whether the rental property was or was not Pat Fallon's legal residence, we can't say, though it would seem for practical purposes it was not. But under Texas election law, the residency is what the voter says it is unless it is adjudicated otherwise. That process would require another voter to file a challenge with the voter registrar, who would hold a hearing and decide the matter. The results of that hearing could be appealed to a state district court, whose decision is final.
On October 31st, according to deed records filed with Denton County, the Fallons officially had their new house. The very next day, Pat Fallon submitted a voter registration card changing his address to that of the new house. Susan Fallon's registration card, although election workers said it had been turned in, was not processed by Denton County Elections office, and her registration is still for the rental property address.
The Texas Election Code defines residence as a "domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence." The code goes on to say "A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person's home." That part is important, because with a new home under construction, it clearly was not the intent of the Fallons to make the rental property their home. Throughout the election code, the present tense word "resides" is used to describe residency requirements for voting.
But Texas law is tricky when it comes to residency, and case law certainly indicates that intent is part of it. In the Texas Supreme Court case of Mills v Bartlett , the opinion was stated in part:
"Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined. There is no specific length of time for the bodily presence to continue." Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964)
The courts tend to hold that the voter himself is in the best position to determine intent. It could have been Fallon's intent to make the rental home his residence for a day, then temporarily stay in the previous home until the new home was built, then reside at the new home. For more on how residency can be determined for voting, see this Attorney General opinion.
The language above the signature box on a voter registration card (Pat Fallon's shown) states that giving false information to procure a voter registration is perjury, and a crime that may result in imprisonment up to 180 days and a fine of $2,000. The Texas Election Code says this form of perjury is a class B misdemeanor.
Making a false statement to an election official, such as stating or agreeing that the registration address is still your residence is also a crime.
However, the standards of the law are so squishy as to make the question of residence an opinion question to which there is almost no wrong answer. It's like requiring a voter to state their favorite football team or what they like to eat.
But there is in addition to the legal question, a question of judgment for the voter, who can weigh the evidence of a candidate's stated residency and decide for themselves whether it matters that the candidate actually lives there, cooks there, sleeps there, and brushes his teeth there.
We asked Fallon directly for an answer to that question, and he replied: "Because when this came up I - back then and now, I consulted with an attorney and we are 100%... That's cause I knew this would happen, I knew it would get to a point where it was looking so bad and so bleak that [Amber Fulton's campaign] are gonna try to play this kind of games. I try to be a little bit... you know, have more than one synapse firing at a time."
Personal Finance Statement, Possible Ethics Violation Found - Or Maybe Not
Multiple Listing Service (MLS) records show the rental agent on the housewas Jeff Cheney, Fallon's fellow Frisco City Councilman, and that the rent was $1,800 per month. A lease would trigger a reporting requirement for Fallon, as an elected official, but Fallon's filing this April for the 2011 period listed N/A on the section requiring disclosure of liabilities (including leases) of over $1,000.
Making a false statement on a financial disclosure, such as having a lease and not reporting it, if done willfully and knowingly, is perjury, a Class A misdemeanor. (Penal code: Sec. 37.02)
The question here though is whether a pre-paid lease would constitute a liability in the eyes of the law. Certainly, taking possession of a rental property means that one is on the hook for any possible damage, but does one incur a liability? The instructions on the form seem clear to us that leases are required to be reported.
What we think
Whether or not it is advisable to move into an area for the purpose of running to represent the people who already live there, we certainly understand the predicament for those who do. As Fallon said, he needed to establish a residence there for the purpose of meeting the constitutional requirement of having lived in the district for at least one year at the time of his election. That requirement has since been changed by court order to April 9th. But, the construction of a new home is something that rarely has a guaranteed completion date, and Fallon needed a backup plan.
We think the proper course of action for Fallon would have been to simply either:
A) Run in the district in which he lived, or
B) Move to Denton County sooner
At any rate, voters will have to ask themselves whether a person who moves to an area just to run for public office really has their best interests in mind, or if they are serving their own political ambition. Voters will have to decide whether Fallon is following the letter and spirit of the law in these matters, and whether he will do the same if elected to the Texas House.
When we asked Fallon about his time in the area, and being a newcomer in Denton County, he replied "That's fine, I've been here 22 years, 21 years - in this area. The Air Force brought me down here for military service and I've lived For 6 years, I've lived 100 yards away from Denton County. And if they think that it's not enough, then maybe they shouldn't vote for me."