Untitled Texas Attorney General Opinion ( 2007 )

GREG ABBOTT
July 18,2007
The Honorable Carlos Valdez Opinion No. GA-0555
105th Judicial District Attorney
Nueces County Courthouse Re: Residency requirements for election to
901 Leopard, Room 206 Del Mar College District Board of Regents
Corpus Christi, Texas 78401-368 1 (RQ-0562-GA)
Dear Mr. Valdez:
You inquire about the residency requirements applicable to candidates for election to the
governing body of the Del Mar College District (the "District").' Del Mar College is a two-year
institution of higher education governed by a board of regents elected by the voters of the District.
Request Letter, supra note 1, at 1.
You state that the District has historically relied on Election Code section 141.001 as
governing the residency requirement for candidates for election to the District's Board of Regents.
See id. Election Code section 141.OO 1(a)(5)(B) provides as follows:
(a) To be eligible to be a candidate for, or elected or
appointed to, a public elective office in this state, a person must:
(5) have resided continuously in the state for 12 months
and in the territory from which the office is elected for six months
immediately preceding the following date:
(B) for an independent candidate, the date of the
regular filing deadline for a candidate's application for a place on the
ballot. . . .
'Letter from Honorable Carlos Valdez, Nueces County District Attorney, 105th Judicial District, to Honorable
Greg Abbott, Attorney General of Texas, at 1 (Jan. 12,2007) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Carlos Valdez - Page 2 (GA-0555)
TEX.ELEC.CODEANN.5 141.OO 1(a) (Vernon 2003).* Section 141.001(a)(5)(B) requires a candidate
for regent of the District to reside in the territory from which the office is elected for at least six
months before the filing deadline.3
You point out, however, that Election Code section 141.001(b) provides that "[a] statute
outside this code supersedes Subsection (a) to the extent of any conflict," and section 141.001(c)
provides that "[s]ubsection (a) does not apply to an office for which the federal or state constitution
or a statute outside this code prescribes exclusive eligibility requirements." TEX.ELEC.CODEANN.
5 141.OO 1(b)-(c) (Vernon 2003); Request Letter, supra note 1, at 2; see also TEX.EDUC.CODEANN.
5 130.082(f) (Vernon 2002) (elections for members of the junior college board "shall be held in
accordance with the Texas Election Code except as hereinafter provided"). Education Code section
130.082, which governs the election of Del Mar College regents, includes language that you believe
may conflict with the six-month residency requirement in Election Code section 141.001(a)(5)(B).
See TEX.EDUC.CODEANN.5 130.082(a) (Vernon 2002) (governing boards ofjunior colleges shall
be chosen pursuant to section 130.082, subject to certain exceptions); Request Letter, supra note 1,
at 2. Section 130.082(d) provides that "[elach member of the board shall be a resident, qualiJied
voter of the district." TEX.EDUC.CODEANN. 5 130.082(d) (Vernon 2002) (emphasis added).
Section 130.082(g)provides that "[alny resident, qualzjied elector of the district may have his or her
name placed as a candidate on the official ballot for any position to be filled at each regular election"
by applying to the secretary of the board. Id. 8 130.082(g) (emphasis added). See Oser v. Cullen,
435 S.W.2d 896, 898-99 (Tex. Civ. App-Houston [lst Dist.] 1968, writ dism'd) (a "qualified
elector" or "qualified voter" holds a voter registration certificate); BLACK'SLAWDICTIONARY 1254
(7th ed. 1999) (a qualified elector is a legal voter, who meets the requirements for voter registration
and has the present right to vote in an election).
Section 130.082(g)does not include a six-month residency requirement, and you suggest that
it dispenses with this requirement "in direct contradiction of Section 141.OO 1 of the Election Code."
Request Letter, supra note 1, at 2. You suggest that the Education Code provision referring to
"residency" controls over the Election Code section 141.OO 1(a)(5)(B) six-month residency
requirement. See id. Under your interpretation, a registered voter could be a candidate for the
District Board of Regents upon establishing residency in the district or the applicable trustee district.
See TEX.ELEC.CODEANN.8 1.015 (Vernon 2003) (defining "residence").
Brown v. Patterson, which addresses two statutes very similar to the Election Code and
Education Code provisions at issue here, provides the answer to your question. See Brown v.
Patterson, 609 S.W.2d 287, 288-89 (Tex. Civ. App.-Dallas 1980, no writ). In that case, an
2Theterm "independent candidate" includes a candidate in a nonpartisan election. See TEX.ELEC.CODEANN.
5 1.005(9) (Vernon 2003).
3The Del Mar College Board of Regents includes at-large members and members elected fi-om a defined area
within the District's boundaries. See DELMAR COLLEGE, BOARDOF REGENTS, available at http://www.delmar.edu/
bdadmin.htm1 (last visited July 16, 2007); see also TEX.EDUC.CODEANN. 5 130.0822 (Vernon 2002) ('junior college
board may order that all or a majority of board members be elected from single-member trustee districts). Thus, some
regents are elected from single-member districts and others from the entire junior college district.
The Honorable Carlos Valdez - Page 3 (GA-0555)
individual was appointed to a vacancy in the Dallas Independent School District's board of trustees,
and the appointment was contested on the ground that the appointee did not fulfill the statutory
residency requirements. See id.at 288. The Election Code included the requirement now found in
Election Code section 141.OO 1(a)(5), requiring an appointee or candidate to have resided in the state
for twelve months and in the district, precinct, or other political subdivision for which he was elected
for six months before being appointed to or filing for an office. See id. (quoting Act of May 19,
1967, 60th Leg., R.S., ch. 723, fj 4, 1967 Tex. Gen. Laws 1858, 1861 (formerly article 1.05 of the
1951 Election Code) (recodified in 1985) (current version at TEX.ELEC.CODEANN. fj 141.001(a)
(Vernon 2003)). Another statute divided the Dallas Independent School District into nine single-
member trustee districts and provided that "residence within the Trustee District from which a
person seeks to be a candidate at the time of filing for office shall be a prerequisite to filing." Id.at
289 (quoting TEX.EDUC.AUX.LAWSart. 2783d (Vernon 2006) [Act of May 14, 1973,63d Leg.,
R.S., ch. 21 1, fj 1, 1973 Tex. Gen. Laws 485, 4861).
The appointed trustee, who had not resided within his trustee district for the six months
immediately preceding his appointment, argued that the Education Code provision prevailed over
the general residency requirements in the Election Code. See id.at 288-89. The court disagreed and
resolved the alleged conflict between the Election Code and Education Code residency provisions
by examining the policy underlying the provisions. See id.at 289. It said that the general residency
requirements for election to office, first adopted in 1895, represented the longstanding and fixed
public policy of the state-that a candidate for public office must have resided in the particular
district or precinct from which he is elected for at least six months. See id. at 290 (citing Act
approved April 20,1895,24th Leg., R.S., ch. 56,1895 Tex. Gen. Laws 81,81-82). The court noted
that the residency requirement would "provide better representation by assuring that voters will be
better acquainted with the qualifications and views of the candidates and that candidates will be
better acquainted with and responsive to the needs and desires of the voters." Id. It found no
indication that the Legislature intended the Education Code to exempt school trustees from residing
for six months in the trustee district. See id. at 291. "Such a departure from the long-established
policy and political tradition of the state should not be attributed to the legislature in the absence of
express and mandatory language." Id. Because the Education Code did not expressly exempt school
trustees from residing for six months in the trustee districts from which they were elected, they were
subject to the Election Code residency requirements. See id.at 291.
We conclude on the basis of Brown that Election Code section 141.001(a)(5)(B) and
Education Code section 130.082(g) can be read together. See id.("[Wle can give full effect to both
statutes and their underlying policies by holding that there is no conflict . . . ."). A candidate for the
District's Board of Regents must be a "resident, qualified elector" under Education Code section
130.082(g)and must satisfy Election Code section 141.OO1(a)(5)'s six-month residency requirement.
TEX.EDUC.CODEANN. fj 130.082(g) (Vernon 2002); see TEX.ELEC.CODEANN. tj 141.001(b)
(Vernon 2003) (six-month residency requirement superseded only "to the extent of any conflict").
Moreover, on the basis of Brown's holding, we conclude that Education Code section 130.082(g)'s
permitting any resident, qualified voter to become a candidate by applying to the secretary of the
board does not prescribe "exclusive eligibility requirements." See TEX. ELEC. CODEANN.
tj 141.001(c) (Vernon 2003) (making the six-month residency requirement inapplicable if another
The Honorable Carlos Valdez - Page 4 (GA-0555)
statute prescribes exclusive eligibility requirements); Brown, 609 S.W.2d at 291 (requiring "express
and mandatory language" to depart from the long-established policy of a six-month residency
requirement). Accordingly, a candidate for election to the Del Mar College District Board of
Regents must comply with the six-month residency requirement set out in Election Code section
141.001(a)(5)(B).
The Honorable Carlos Valdez - Page 5 (GA-0555)
S U M M A R Y
A candidate for election to the Del Mar College District Board
of Regents must comply with the six-month residency requirement in
Election Code section 141.OO 1(a)(5)(B). Education Code section
130.082(g) does not exempt candidates from the Election Code
requirement.
Very truly yours,
.- ~ t t o r n e u e r a of
l Texas
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee