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Attorneys say questions about O’caña’s residency would hold little weight in court

Any challenge to mayoral candidate Armando O’caña’s residency — a hot topic during recent Mission City Council meetings — is unlikely to prevail in court, according to three attorneys familiar with Texas law.

Questions about whether or not City Councilman Armando “Doc” O’caña actually lives in Mission surfaced in mid-February, when businessman Tomas Tijerina addressed the City Council during public comment. Without mentioning O’caña by name, Tijerina said a candidate actually lived outside city limits.

Armando Ocana 2015Mayor Norberto “Beto” Salinas interrupted him.

“Who are you talking about? Dr. O’caña or what?” Salinas said, adding later: “Well, we all know that he lives there outside the city of Mission. We’ve known that for 10 years.”

O’caña sat silently while Salinas attacked him from the dais.

“I have no problem with him running. He’s got all the right, you know,” Salinas said. “If he can get away with him lying to the people of Mission, that’s fine. I have no problems with that either. He needs to live with himself.”

In an interview, O’caña said he’s a lifelong Mission resident and vehemently disputed the allegations.

“Obviously, that information isn’t correct,” O’caña said.

The controversy stems from the fact that O’caña owns two homes: a modest 1,300-square-foot home on Greenlawn Drive in Mission and another 4,500-square-foot home on Schuerbach Road — outside city limits.

O’caña filed for a homestead exemption on the Greenlawn Drive address, declaring the home his primary residence. His driver’s license also lists the Greenlawn Drive address. And he registered to vote from the Greenlawn Drive address.

Tijerina, though, remained unconvinced.

“So I thought the water bills were a good place to start,” said Tijerina, a well-known businessman who owned Renee’s of Sharyland and supports Salinas for mayor.
Tijerina requested 18 years of water billing records for the Greenlawn Drive home.

The records appear to show zero water usage from June to December 2003. The records, which aren’t complete, also show a significant drop-off in water usage after December 2006.

Tijerina said he considered the records proof that O’caña doesn’t actually live at the Greenlawn Drive address. He never asked O’caña about the records before addressing the City Council about the matter in February.

“I didn’t ask him because I thought it was evidence,” Tijerina said. “And I’ve come to believe even more steadfastly that he doesn’t live there.”

Tijerina said he’s concerned with where O’caña actually spends his time, not necessarily the legal definition of residency.

“It’s where you live,” Tijerina said during the February meeting. “It’s where you wake up in the morning and you brush your teeth. And you can’t brush your teeth with zero water.”

O’Caña said he found the water bill controversy ridiculous — especially because the mayor owns property outside city limits, but nobody questions his residency.

“It’s mind-boggling that it’s got to this point,” O’caña said.

O’caña said he built a home on the Schuerbach Road property for his mother-in-law. The nearly 3-acre property gradually became a family compound, which he calls the “O’caña Family Center.”

He asked Mission to annex the home, but the city rejected the annexation request, O’caña said. Tijerina said he also remembered the annexation request.

“I’ll be the first one to say: ‘Do I spend weekends at my O’caña Family Center? Yes,” O’caña said, adding that he returns to Mission during the week. “Now ask me: ‘Where did you sleep last night?’ 927 Greenlawn Drive.”

Attorneys familiar with Texas law said any legal challenge to O’caña’s residency would be difficult to win.

The Texas Election Code defines residence as “one’s home and fixed place of habitation to which one intends to return after any temporary absence.”

Courts typically take a candidate’s stated intent at face value unless strong evidence exists to the contrary, said attorney Roger Borgelt of Austin, who handles election law cases.

For example, a candidate who buys a vacant lot and claims he plans to build a home there — even though no home actually exists — could use that address to run for office, Borgelt said.

Local attorneys agreed.

“At the end of the day, ‘residence’ is where you decide to live,” said attorney Ric Godinez, who served on the McAllen City Commission and currently heads the Hidalgo County Democratic Party. “It’s a pretty subjective requirement. It’s not an objective requirement.
Courts weigh many factors, including where the person sleeps, where the person’s children attend school, where the person’s wife or husband lives, the person’s mailing address, the person’s voter registration and other documents.”

Unless a homestead exemption or a voter registration conflicts with a candidate’s stated intent, it’s extremely difficult to win a residency challenge, Godinez said, adding that water billing records wouldn’t convince a court.

“I think it would be very, very difficult to prove against his intent in that case,” Godinez said.

Edinburg City Attorney Ric Gonzalez took a similarly dim view of the water bills.

“They won’t win that one,” Gonzalez said.

Voters usually adjudicate disputes over residency, rejecting candidates who aren’t considered part of the community, Gonzalez said. Unless the candidate with questionable residency wins, the disputes rarely head to court.

O’caña said he’s content to let voters decide.

“I’m going to let the citizens of Mission cast their votes and make a decision for mayor,” O’caña said. “My residency should not be questioned because I’ve been a lifetime Missionite. I’ve been born and raised, and I think I’m going to be buried in Mission also.”

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