FORT WORTH – A state district judge ruled Tuesday that Democrat Wendy Davis could appear on the ballot this fall opposite incumbent Republican state Sen. Kim Brimer. Mr. Brimer's lawyer said he would appeal.

Wendy Davis

Judge Tom Lowe ruled that the oath of office was lawfully administered to Ms. Davis's replacement at a private ceremony on Jan. 1, a day before the filing deadline for the state Senate primary for District 10, which includes parts of Fort Worth and Arlington. Ms. Davis was unopposed in that primary.

Judge Lowe wrote that he based his 10-page decision in part on an earlier state Supreme Court decision. Judge Lowe wrote that he had concerns about possible judicial activism in that "sharply divided" decision, but he felt compelled to follow its precedent.

The judge also ordered that each party pay his or her own legal expenses.

"I'm ready to begin discussing the concerns and the questions that people have about how we are going to go forward in representing them," Ms. Davis said. Her representatives e-mailed a letter to Mr. Brimer and the media Tuesday afternoon calling for a series of debates on campaign issues

Nick Acuff, an attorney for Mr. Brimer, said he plans to appeal to the 2nd Court of Appeals in Fort Worth. He said that the so-called "Wentworth" decision from 1992 was not definitive.

"The only thing that the majority of the court agreed on in that case was that Wentworth was not ineligible under those facts," Mr. Acuff said. "They specifically did not decide the issue of when a potential candidate has to resign."

That case involved a Texas State University System regent, Jeff Wentworth, who ran for the state Legislature.

A case similar to Mr. Brimer's was filed by several voters in January. The appeals court, however, ruled that the plaintiffs didn't have standing to sue.

Ms. Davis filed in December to run for the Democratic nomination for Mr. Brimer's seat. No candidate won a majority of the votes in the November special election to replace her, so a December runoff was needed.

To avoid litigation, one of her attorneys suggested that she withdraw her filing and file again after her replacement was seated.

Joel Burns won the runoff and was given a certificate of election before the Jan. 2 primary filing deadline. However, he wasn't scheduled to take the oath of office until nearly a week later at a City Council meeting.

So Mr. Burns held a private ceremony on New Year's Day and was sworn in by a retired judge. Ms. Davis filed for the state Senate seat again on Jan. 2.

The Brimer campaign argued that Mr. Burns did not officially replace Ms. Davis until the Jan. 8 City Council when there was a public swearing in.

Mr. Pritchard said that Ms. Davis' decision to withdraw her earlier filing indicated that there was some fuzziness in the law.