Judge: No Secret Ballot in Texas

Thursday, December 28th 2000, 12:00 am

By: News On 6

AUSTIN, Texas (AP) â€” The Texas Senate cannot choose an acting lieutenant governor in secret, a judge ruled. Senators seeking to keep the meeting closed quickly appealed Thursday to the state Supreme Court.

State district Judge Lora Livingston ruled Wednesday that the state's second-ranking official is an executive position normally elected by the people. In the ruling, she agreed with open-government principles argued by several publications and said the lieutenant governor is not merely an officer of the Senate.

Livingston's decision later was upheld in the 3rd District Court of Appeals. The senators appealed to the Texas Supreme Court, and both sides filed briefs early Thursday. A decision was expected early in the afternoon, court spokesman Osler McCarthy said.

It was uncertain if the Senate still planned to hold a secret ballot later Thursday to elect one of its members to replace former Lt. Gov. Rick Perry, who became governor last week when George W. Bush resigned to become president.

Some senators said they were prepared to vote regardless of the outcome.

``I'm going to show up at the appointed hour prepared to vote,'' said Republican Sen. Bill Ratliff, who has expressed interest in the lieutenant governor job.

``I am a very strong believer in the separation of powers, and I don't believe that a district court has the jurisdiction to tell the Senate how to conduct its business,'' he said.

During the district court hearing, Texas Attorney General John Cornyn argued the state constitution authorized the senators to elect their presiding officer by secret vote. Supporters say the private ballot helps avoid political retribution that might result if votes are known.

Livingston ruled that the constitutional provision allowing the Senate to elect ``officers'' in secret almost certainly referred to employee positions such as clerks and doorkeepers.

``It seems to me in this case they are not choosing a president of the Senate. Rather, they are choosing the lieutenant governor. It seems to me that is something required by the (Texas) Open Meetings Act to be done in public,'' Livingston said. Her ruling ordered that the discussion of candidates, as well as the vote itself, be done in public.

The petition was filed by the Bryan-College Station Eagle, San Antonio Express-News, Houston Chronicle, Waco Tribune-Herald, Austin-American Statesman and Texas Monthly magazine against the Senate and President Pro Tem Rodney Ellis.

``This is unprecedented,'' said Austin attorney Jennifer Riggs, who represented several of the publications. ``We are seeing history being made. And the ones who benefit are the members of the public.''

Perry's replacement will assume the duties but not the title of lieutenant governor and will continue to be a senator. A new lieutenant governor will be elected in 2002, when Perry's term would have expired.

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On the Net:

Texas State Senate: http://www.senate.state.tx.us/