Conroe, February 10, 2017 – Adrian Heath of The Woodlands is now incarcerated in the Montgomery County Jail and awaits transfer to the Texas Department of Criminal Justice – Institutional Division for a felony conviction and three (3) year prison sentence for illegal voting, a violation of Section 64.012(a) of the Texas Election Code. The Montgomery County Sheriff’s Office executed an arrest warrant and took Heath into custody on Tuesday, February 7, around 10:30 a.m., after Heath had exhausted all of his appeals in the Texas court system. Heath has never had any other criminal conviction.
Adrian Heath is a political prisoner whose rights under the United States Constitution clearly were violated. It is appalling.
Politics Behind the Prosecution
On May 8, 2010, after Montgomery County Elections Administrator Carol Gaultney certified in writing that he was “eligible” to vote at that location in the election, Heath and a group of his friends voted in the Woodlands Road Utility District #1 (“WRUD”) election. They had switched their residence to a hotel property, where many other individuals lived full-time. Heath and his friends voted in the election to protest the many tens of millions of dollars of taxes which the WRUD collects from thousands of Woodlands residents, while the developer of The Woodlands subdivision gerrymandered the residences within the WRUD only to permit a small number of people to participate in those elections. In the 2010 Board of Directors election, 12 people voted. 2 were Dirk and Katy Laukien, two high net worth real estate developers who work closely with The Woodlands Development Company (“TWDC”) and have a bizarre “residence” in the middle of an office complex across the street from the Woodlands Township. The other ten voters were Heath and his friends whose votes carried the day by a 10 to 2 margin and turned out the incumbent WRUD directors who consistently voted to raise taxes and debt in order to develop roads in The Woodlands Town Center area that benefitted TWDC’s private development.
Montgomery County District Attorney Brett Ligon and his then-First Assistant District Attorney Phil Grant, now 9th District Judge, declined to prosecute Heath and his friends. They acted appropriately, because, as discussed below, the Texas Election Code provision is so vague as to an eligible voter’s “residence” that people of ordinary intelligence could not have a reasonable opportunity to understand what conduct it prohibits and makes a third-degree felony under Texas law.
As a result, State Senator Tommy Williams, TWDC attorney James Stilwell, and TWDC ally Bruce Tough vehemently lobbied then-Attorney General Greg Abbott to take the case. (Tough has subsequently denied any involvement, but documents indicate otherwise.) TWDC insisted and requested that they lobby the Attorney General to prosecute Heath, because they did not want others to oppose their real estate development activities. Abbott agreed to prosecute the criminal cases, despite the vagueness of the criminal prohibitions in the statute (as discussed in detail below).
A Grand Jury indicted Heath on March 8, 2012, almost two years after the election. Despite the objections of Heath’s attorney, Conroe attorney Jay Wright, to the unconstitutional vagueness of the statute, a visiting judge from Beaumont put Heath’s case to trial and obtained a conviction with 3-year prison sentence on November 1, 2013.
Under American constitutional law, a criminal statute is “void for vagueness” and unenforceable, if it is too vague for the ordinary citizen to understand. The statute under which the court convicted Heath is a classic example of vagueness. The United States Supreme Court ruled in Connally versus General Construction Co., in 1926,
“The terms of a penal statute…must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties…and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its applications violates the first essential of due process of law.”
Specifically, the Supreme Court of the United States as well as Texas courts have made clear that in order to satisfy the Due Process Clause of the 5th Amendment to the U.S. Constitution, individuals are entitled to understand the scope and nature of statutes before they can be subject to criminal penalties (imprisonment or criminal fines).
Under Texas law, a statute will be declared unconstitutionally vague if its prohibitions are not clearly defined, as the top criminal court in the State held in State versus Markovich, a 2002 appellate case. A statute must provide people of ordinary intelligence a reasonable opportunity to understand what conduct its prohibits.
So let’s look at the statute under which the court convicted Heath.
Section 64.012(a) of the Texas Election Code, the statute by which the court convicted Heath, provides:
“A person commits an offense if the person votes or attempts to vote in an election in which the person knows the person is not eligible to vote…”
That raises the question, what does it mean to be “eligible”? (Remember, that Election Administrator Carol Gaultney declared Heath “eligible” before he voted.)
There was no question that Heath met all of the qualifications of “eligibility” but the one in dispute, “residence.” The eligibility statute is Section 11.001 of the Election Code, but it doesn’t have a definition of “resident” or “residence.”
Here’s where the legal analysis under the Election Code goes haywire, because Section 1.015 of the Texas Election Code defines residence as follows:
“Sec. 1.015. RESIDENCE. (a) In this code, “residence” means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.
(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.
(c) A person does not lose the person’s residence by leaving the person’s home to go to another place for temporary purposes only.
(d) 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.
(e) A person who is an inmate in a penal institution or who is an involuntary inmate in a hospital or eleemosynary institution does not, while an inmate, acquire residence at the place where the institution is located.
So The Golden Hammer has a serious question for the reader. You have just learned that “residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state…” Section 1.015(b). Do you know those “common-law rules, as enunciated by the courts of this state”? Do you realize that there are literally hundreds of common-law rules enunciated in appellate opinions of the courts of Texas and the numbers of those rules grow weekly? Do you believe that a jury of twelve good people qualified to serve in a Montgomery County District Court could possibly know what those “common-law rules” are without further direction from the judge?
Well, guess what?! The judge’s precise instruction in Heath’s criminal trial was:
“Residence shall be determined in accordance with the common-law rules as enunciated by the courts of this state…”
The only manner in which a jury could actually convict someone under such a definition is if they actually knew the “common-law rules” which comprise hundreds of appellate judicial opinions. Adrian Heath wouldn’t know those rules. Twelve real human beings on a jury wouldn’t know those rules. Most excellent lawyers wouldn’t know those rules, or, at least, would argue vociferously amongst themselves about what the interpretation of those rules are.
Does the definition of “residence” really make a difference? Don’t know you whether a place is a “residence” if you see it? The answer under the Texas Election Code is a resounding “no.”
Texas courts have held that people who live in one location in Texas can vote in another location if the second location is where they keep their post office box. In other words, your post office box can be your “residence” under the common-law rules enunciated by the courts of this state. Similarly, if a real estate developer hires someone to vote out of a trailer without any sleeping facility in a MUD bond election, the trailer is his “residence” under the common-law rules enunciated by the courts of this state. If someone lives in their college dormitory but returns home to mom and dad for vacations, they may vote where mom and dad live as their “residence.”
In truth, the vagueness of the statute permitting people to vote in MUD elections where they’re living temporarily and often for less than a day has become an important method of financing the infrastructure for real estate development while keeping the purchase price for such real estate reasonable. The vague Election Code definition of “residence” is actually helpful to real estate developers.
But not for Adrian Heath, because Adrian Heath dared to oppose a real estate developer, TWDC, in taking advantage of the vagueness of the definition of “residence.”
It almost seems as though the law in the State of Texas for where you may vote is that you can vote where your feelings are, in your own subjective mind, but if you dare oppose The Woodlands Development Company, then you will go to jail, will not pass “go,” and will not collect $200, because you are on the wrong side of the politics of a state senator, TWDC, and TWCD’s lobbyists.
That is not justice. That is politics. That’s why Adrian Heath, a person who strives to be ethical, a person with strongly held political convictions, a person who is by no means perfect but who feels passionately that he should do the right thing, and a person who is extraordinarily talented in computer technology and in the sale of oilfield tools became a ward of the State of Texas whom we must all support for the next three years while he sits in the penitentiary.
Now, let’s be candid about this situation. The point is not that all of those people – the Laukiens, the post office box holders, the rent-a-voters, the developers, the college students, and the MUD voters – should be prosecuted and sent to prison for 3 years along with Heath. The point is that the statute establishing “eligibility” to vote, based upon a very loose definition of “residence,” was broad enough to permit an election official, in fact THE election official, Carol Gaultney, the Elections Administrator, to certify that Heath could, legally, vote. The statute plainly is too vague to form the basis of a criminal conviction, especially if our Legislature continues to choose to allow such a loose statute to form the basis of voting eligibility.
Joe Sager, a longtime Republican Party Precinct Chairman and conservative political activist in Montgomery County, said, “Similar to David vs. Goliath, Adrian took on the giant RUD equipped only with the law and Constitution. Little did Adrian know, when it comes to big money and politics the law be damned. It’s not what’s legal that matters; it’s who you know and how much money you have to spend to gain their influence.”
Ultimately, thanks to backroom politics, aren’t you and I, as citizens, paying, once again for the political choices of The Woodlands Development Company, a private real estate developer with enough political muscle to obtain a prosecution and conviction of a man who has done precisely what thousands of others have done (except that they didn’t make the mistake of opposing the mighty TWDC)?