Untitled Texas Attorney General Opinion ( 1984 )

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The Attorney General of Texas
“M MATTOX De :ember 28, 1984
ttorney General
.preme ceurc BUlldirlQ lionorable James S. McGrath Opinion No. m-284
r. 0. Box 12548 Criminal District At'xrney
Austin, TX. 79711.2548 Jefferson County Re: Election of commissioners
-‘2/4752501 P. 0. Box 2553 In Jefferson County Drainage
.,0x 910l8711387
I dIecopier 51214750258
Beaumont, Texas 77’104 District No. 7
Dear Mr. McGrath:
4 Jackson, Suite 700
raIlas. TX. 752024506
You have asked for an opinion construing language in section 4 of
2141742-8944
the act establishing Jefferson County Drainage District No. 7
respecting the appo:lntment or election of commissioners “as long as
424 Alberta Ave., Suite 180 five municipalities exist within the district.” Acts 1962. 57th Leg.,
El Paso. TX. 799052793 3rd C:S., ch. 34, at 98; Acts 1977. 65th Leg., ch. 614, at 1520. As
- 1515333484 amended, the provision now reads:
, , Texas, Suite 700 Sec. 4. The management and control of the
ouston, TX. 77002-3111 District &all be vested in five Commissioners.
I312236885 Except as %ovided bv this Act, the General Law
of - the ‘!;tate of- Texas ielating to the
Commissioners of drainage districts shall apply to
X Broadway. Suite 312
,bbock. TX. 79401.3479
the Commiwioners of the District. The present
~061747-5238 Comlssioners of the District shall remain in
office for-the remainder of their terms of office,
and the $:ovisions of Sections 56.061 through
3M) N. Tenth. Suite S
56.063, W:lter Code. and Article 8161b, Sec. 7.
r.icAllm. TX. 78501.1685
5121882.4547
Revised Civil Statutes of Texas, 1925. as amended.
shall apply to the Conmissioners of the District.
Section 56.064. Water Code, as amended, shall
&O Main Plaza. Suite 400
apply to this District, except that the
San Anlonio, TX. 70205.2797
Commissioners Court shall order the election on
-1212254191
petition of at least 20 percent of the real
property taxpayers of the district, and that five
An Equal OppOrtunityI Conmissioners shall be elected at large if an
,ltirmative Aclion Employer election j.a ordered under that section, with the
Comm~.ssioaers Court selecting the fifth
Coamissiouer from the persons tying for fifth
place in the event of a tie. After the expiration
of the tezm,s of the present Commissioners. no more
than one ?o&ssioner shall be appointed and/or
elected f&o any one municipality as long as five
municipaljtles exist within the district. For all
P. 1261
Honorable James S. HcCrath - Page 2 (JIl-284)
purposes, a quorum for doing business shall
consist of a majorify of the Commission.
(Emphasis added).
You indicate that interpyetation is necessary because two of the
municipalities that formerly existed within the district have now
merged so that there now exkt only four municipalities within the
district rather than five. The, provision was last amended in 1977 and
the terms of the commissioners who were then the “present
commissioners” have since expired. Water Code SS56.061 - 56.064.
Section 5 of the federal Voting Rights Act of 1965, 42 U.S.C.
91973c (1982). as amended, pro!libits a state or -political subdi.vision
subject to the Act from enforcing “any voting qualification or
prerequisite to voting, or standard. practice, or procedure with
respect to voting different from that in force and effect on November
1. 1964.” unless one of two c,ondltions has occurred. The political
subdivision is required elth@!r to secure a declaratory judgment from
the U.S. District Court of the District of Columbia that such change
“does not have the purpose and will not have the effect of denying or
abridging the right to vote on account of race or color” or to obtain
clearance for the channe from the Attorney General of the United
States. See Beer v. Ukted States, 425 U.S. 130 (1976). As the
Supreme Court declared in B&,
. . . the purpose of section 5 has always been to
assure that no voting-procedure changes would be
made that would lead to a retrogression in the
position of racia:. minorities with respect to
their effective exercise of the electoral
franchise.
425 U.S., at 141. Texas and Its political subdivisions fall within
the scope of section 5.
Any change in the present procedure for selection of
coumissioners. i.e.. any deviation from the present geographical basis
for selection in order to conform to new political boundaries,
j~ncluding the selection of a:11 commissioners on an at-large basis,
might lead to the kind of retrogression vhich the Court condemned in
Beer. Selection on an at-,large basis would remove entirely any
residency requirement for I)::strict coaaaissioners and subject the
electoral scheme to a chal.lenge that it dilutes minority voting
strength, White v. Regester, 412 U.S. 755 (1973). In our opinion,
section 5 of the Voting Rights Act could invalidate any. election
result based on any deviation from the current scheme of apportionment
unless approval for change is obtained from federal authorities.
Accordingly, unless and until the District complies with the
requirements of that statute -- by obtaining either a declaratory
Honorable James S. McGrath - Page 3 (JI+284)
judgment from the U.S. District Court for the District of Columbia or
preclearance from the Attorney General of the United States --
District commissioners should continue to be selected from their
present geographical areas, or until such time as the Texas
Legislature takes action to modify the governing statute.
Unless and until the Jefferson County Drainage
District No. 7 complies with the requirements of
section 5 of the Voting Rights Act of 1965, 42
U.S.C. 01973c (1982). by obtaining either a
declaratory judgment from the District Court for
the District of Columbia or preclearance from the
Attorney General o,f the United States, District
commissioners shouli continue to be selected from
their present geogr.aphical areas.
TOMGFLEEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive.Asslstant Attorney Banera
RICR GILPIN
Chairman. Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
D. 1263