A pair of prominent appellate lawyers warned a high-ranking Texas Republican on Thursday that the state and county GOP organizations do not have the legal authority to block candidates from the primary ballot regardless of whether they've been censured and deemed to have violated party rules in a speaker's race.
Waco attorneys Tyler Talbert and Rory Ryan made the case against the Texas GOP's so-called Rule 44 in a 10-page memorandum to David Luther in his role as the president of the Texas Republican County Chairmen's Association.
"BREAKING NEWS — An RPT rule says we have to reject censured candidates," Luther revealed last night in a post on X that included a copy of the advisory. "County Chairs need clarity. We now have a memo refuting the RPT’s rule. Click the link below for the truth."
Conservatives inside and outside the Texas House have been hoping that the untested party rule in question could be the nuclear option they need to defuse State Rep. Dustin Burrows' bid for speaker in an election that will be held on the chamber floor on Tuesday when the regular session opens for business.
Burrows appears to be an all-but prohibitive favorite in the stretch before the vote thanks to a coalition of Republicans and Democrats that he's assembled for a fight with State Rep. David Cook as the GOP caucus nominee. Cook's campaign has stalled with less than 60 current and incoming representatives pledged to back him on the floor for the post that Speaker Dade Phelan isn't seeking again this year. A candidate needs at least 76 votes to claim the gavel in the House.
Cook hasn't appeared to pick up any additional pledges despite historic pressure on Burrows' camp including threats about primary voter vengeance and the denial of access to the ballot for re-election races in 2026. Attorney General Ken Paxton and Texas GOP Chairman Abraham George failed to turn a single vote to Cook this week with a four-city swing that targeted with House Republicans who are loyal to Burrows. Paxton is backing Cook for speaker despite the fact that the Mansfield legislator voted to impeach him during the regular session in 2023.
Ryan, who has law offices in Waco and Austin, is a former Baylor University law school professor who served as the faculty advisor to both the Federalist Society and the American Constitution Society. Talbert, who's based in Waco, is an accomplished appellate attorney who teaches at the Baylor law school as well. Talbert and Ryan informed Luther that state law supersedes party rules - rendering Rule 44 effectively as a provision that has no teeth.
"The Texas Election Code does not permit political parties to restrict ballot access with additional obligations like Rule 44(e); instead, a party chair has a mandatory duty to accept and certify ballot applications complying with the Election Code," the lawyers wrote. "To insist that the party’s own procedures must prevail over election law, the party would have to argue that the Texas Election Code’s provision violates the party’s First Amendment freedom of association rights. Such a challenge is unlikely to succeed. Under existing law, the better answer is that Rule 44(e) cannot override
Texas election law."
