Edcouch candidates sue after city deems them ineligible

Two would-be candidates for alderman have sued the city of Edcouch after officials there deemed them ineligible to run for office.

Rodolfo “Rudy” Rodriguez and Rosa M. “Rosie” Schmalzried filed the suit last Thursday, claiming the city deemed them ineligible to run for public office because they are currently indebted to the city — something that the city charter prohibits for political officeholders.

However, the pair, who sought a temporary restraining order in their Aug. 26 filing, argue that Edcouch is not a so-called “home rule” city governed by a city charter, but is instead a general law Type A city governed by the Texas constitution.

On Monday, a judge granted the pair’s request for a temporary restraining order and set the matter for a hearing on Sept. 10.

According to the lawsuit, Rodriguez and Schmalzried filed their candidate applications with the city secretary on Aug. 11. Everything appeared to be proceeding accordingly when the two candidates were invited to attend an Aug. 17 drawing to learn their positions on the ballot.

The pair, who are running on a slate for alderman along with mayoral candidate Rina Castillo, drew the second positions on their respective ballots, but were notified of their ineligibility on Aug. 23, the lawsuit states.

Together, the trio are seeking to unseat incumbents who are themselves running on a slate — Mayor Virginio “Virgil” Gonzalez, Place 3 Alderman John Chapa and Place 4 Alderman Robert Gutierrez.

The city’s letters to Rodriguez and Schmalzried said they were ineligible to run for public office due to outstanding traffic tickets, and, in the case of Schmalzried, because of delinquent property taxes.

But the two dispute the assertion, saying their disqualification from the election is nothing more than political maneuvering meant to keep the incumbents in power.

“Based on information and belief, the incumbent candidates have conspired to manipulate the official process for election to coerce against the candidacy of the Plaintiff’s and subvert the will of the voters of the City of Edcouch,” the lawsuit reads in part.

Javier Peña, the attorney who is representing both ousted candidates, put it more bluntly.

“They’re violating the law in order to do this so that there won’t be an election, so that the voters don’t get to decide who represents them,” Peña said via phone Tuesday.

“That’s what these guys are doing. And they’re violating the law in order to do that,” he said.

Peña makes several assertions regarding the city’s decision to declare Rodriguez and Schmalzried ineligible to run.

First, he says the city has failed to prove it has a valid city charter and failed to cite what provisions of the charter his clients have allegedly violated.

Second, Peña asserts that even if a person is indebted to the city, it is not a disqualifier for seeking office. But beyond that, the debts the city claims the two candidates hold are not legitimate debts.

The traffic tickets, Peña said, are not final judgements where a debt has been assessed, but rather accusations of an infraction. And as for the property taxes allegedly owed by Schmalzried — she does not own the property in question, he said.

Finally, Peña claims the city has gone about the process incorrectly from top to bottom.

“Every metric that they have used and every rule that applies to this has been violated. They have the wrong person determining eligibility,” Peña said, referring to Manny Hernandez, the city’s election administrator.

The lawsuit claims it is the city secretary who is responsible for making determinations regarding elections.

“They’re using the wrong law. They’re quoting to a charter that doesn’t exist. They’re doing it in the wrong time,” Peña added.

Bolstering the lawsuit’s argument is an affidavit Peña obtained from a former mayor — Robert Schmazlried — swearing that the city does not have a charter, nor does it operate under the authority of one.

“While I was serving as the Mayor, the City of Edcouch did not operate under or follow a city charter. We always operated under a General Law form of municipalities under the Local Government Code,” Robert Schmalzried’s sworn affidavit reads, in part.

Robert Schmalzried, who served as mayor from 2009 to 2016, and who currently serves as an Edcouch-Elsa school board trustee, is the son of Rosie Schmalzried.

Peña said the city has refused to provide him or his clients with a copy of the city charter it claims to operate under. However, in 2019, The Monitor obtained a copy after filing a public information request when the city was then going through a similar dispute over candidate eligibility.

Reached for comment Thursday afternoon, Edcouch City Manager Victor Hugo de la Cruz referred questions to the city attorney.

The city would be vigorously defending itself against the lawsuit, City Attorney Orlando “O.J.” Jimenez said.

“We are going to fight that as vehemently as possible because the application for the temporary restraining order, the petition is fraught with inconsistencies. It is misleading and it is also trying to misdirect the attention from the letter of the law,” Jimenez said.

As to Peña’s assertions that his clients are not indebted to the city, Jimenez insists they are. Both have traffic tickets that have escalated to warrants for their arrest due to their failure to appear, the city attorney said.

And Rosie Schmalzried is tied up in litigation regarding delinquent property taxes, he said. But Jimenez took his assertions regarding that alleged debt one step further.

“My understanding is either that day that she submitted the application, she actually transferred it to her daughter. So that is very, very, very suspect,” Jimenez said.

A search of Hidalgo County property records show three pieces of property owned by people with the last name Schmalzried — two are owned by Rosie Schmalzried, and one is owned by Robert Schmalzried and his wife.

A search of Hidalgo County court records, however, does show Rosie Schmalzried as a named defendant in a years-old property tax lawsuit.

That lawsuit, filed in 2011 against a deceased person and others, including Rosie Schmalzried, was resolved in 2014, when the court ordered the sale of the property in order to pay the delinquent taxes.

Regarding the city’s governance, however, Jimenez insists Edcouch is a home rule city governed by a charter that was adopted the year of the city’s incorporation, 1928. That Robert Schmalzried has signed an affidavit claiming otherwise will necessitate a response from the city, the attorney said.

“He’s gonna have a lot to answer for. We’re gonna have to be filing whatever we’re gonna be filing in terms of perjury because of the affidavit stating that he didn’t know about it,” Jimenez said.

Jimenez also took umbrage when asked why it took so long for Edcouch officials to notify Rodriguez and Rosie Schmalzried of their disqualification — waiting until after the pair had drawn for their place on the ballot, and 12 days after they filed their candidate applications.

“I would object to the characterization when you ask me ‘why did it take so long?’ No ma’am. There’s guidance and there’s timelines that the election administrator has to do. And Manny did it within the timeframe allowed by the election code,” Jimenez said.

“Everything that the city of Edcouch has done has been consistent with the letter of the law,” Jimenez said.

But Peña disagrees, saying if the city’s actions are allowed to stand, it robs his clients of due process.

“If the evidence shows that my clients are not eligible to be candidates, the law already has a remedy for that. Now, if the law is allowed to be violated and keep my clients off the ballot, there’s no remedy for that once we prove they should have been eligible,” Peña said, referring to the term “remedy” in the legal sense.

If the candidates are allowed to run for office and are later found to have been ineligible, the legal remedy is that they forfeit their seat. However, if they aren’t allowed to run for office when they are otherwise eligible, there is no way to rectify their inability to have participated in the election.

For Peña, what’s happening to his clients is by design. This marks the third consecutive election where the city has attempted to disqualify a candidate. It prevailed in one instance, and failed in the other.

“The city council and the incumbents don’t get to choose who represents the people. The people get to choose. Otherwise we’re not a democracy, we’re a dictatorship,” Peña said.

Jimenez, Edcouch’s city attorney, scoffed at that idea.

“Whoever said that, they must’ve been a poet in their former life because they have the gift of exaggeration because that’s not the case,” Jimenez said.