Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES February 7,1992
ATTORNEY
GENERAL
Honorable John W. Segrest Opinion No. DM-89
criminal District Attorney
McLennan County Re: Whether a candidate is eligible to
302 Courthouse hex the office of alderman in a type B gen-
Waco, Texas 76701 eral law city if the candidate meets the
requirements of section 23.824(a) of the
Local Government Code, but not the
requirements of section 141.001(a)(4) of
the Election Code (FIG-119)
Dear Mr. Segrest:
You seek a construction of section 141.001 of the Election Code and section
23.024 of the Local Government Code. Specifically, you ask whether a candidate is
eligible to the office of alderman in a type B general law city if the candidate meets
the requirements of section 23.024(a) of the Local Government Code, but not the
requirement of section 141.001(a)(4) of the Election Code.
Section 141.001 of the Texas Election Code provides, in part:
(a) To be eligible to be a candidate for, or elected or
appointed to, a public elective office in this state, a person must:
. . ..
(4) have not been finally convicted of a felony from
which the person has not been pardoned or otherwise
released’ from the resulting disabilities; [and]
IA person may be released from the disabilities resulting from a felony co&&n pursuant to
the provisioos of article 42.12, section 23, of the Code of Criminal Procedure. Such a release from
dhbilities is within the discretion of the court. Accordingly, 85 pointed out in the distrid attorney’s
brief accompanying the request for this opiaion, a candidate subjtd to section 141.001(a)(4) must meet
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Honorable John W. Segrest - Page 2 (DM-89)
. . . .
(6) satisfy any other eligibility requirements
prescribed by law for the office.
(b) A statute outside this code supersedes Subsection (a) to
the extent of any conflict.
(c) Subsection (a) does not apply to an office for which the
federal or state constitution or a statute outside this code
prescribes exclusive eligibility requirements. (Footnote added.)
Section 23.024(a) of the Local Government Code provides:
To be eligible for the office of mayor, alderman, or marshal1
of the municipality, a person must be a qualified voter in the
municipality and must have resided within the municipal limits
for at least the six months preceding election day.
On the plain language of section 141.001 of the Election Code, a candidate
must meet its requirements unless the requirements “conflict” with a statute outside
the Election Code or unless other constitutional or statutory law is “exclusive”as to
the requirements for a particular office. We conclude that section 22.024 of the
Local Government Code does not exclusively govern eligibility to elective office in a
type B general law city and does not conflict with section 141.001(a)(4) of the
Election Code.2
Section 23.024(a) does not expressly or implicitly indicate that it is intended
to exclusively govern the qualifications of candidates in type B general law cities.
Section 141.001(a)(6) makes clear that the legislature anticipated that statutes
outside the Election Code could prescribe additional requirements for candidates.
(footnote continued)
that requirement by the fang deadline in order to be a candidate Lemons v. State, 570 S.W.2d 593
(Tex. Civ. App.-Amarillo 1978, writ ret’d n.r.e.).
we note that there are other differences between section 23.024(a) and section 141.001(a)(5).
We do not address those differences in this opinion.
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Honorable John W. Segrest - Page 3 ( DM- 8 9 1
Accordingly, where two statutes prescribing candidate qualifications may be read as
cumulative of each other, we think that a legislative intent that one statute apply
exclusively, within the meaning of section 141.001(c), must be express or clearly
implied.3
Section 23.024(a) is a non-substantive recodification of former article 1141,
V.T.C.S. See Acts 1987, 70th Leg., ch. 149, $I1. Article 1141, in turn incorporated
certain requirements from former article 1137, V.T.C.S., which prescribed
qualifications for municipal voters, in part, by reference to the general laws of the
state. At the time the source law for section 23.024 was enacted, all felons were
permanently disfranchised in Texas and would have been, therefore, barred from
candidacy under the source law.4 We find no implication that section 23.024
represents a legislative intent to carve out an exception to the general rule excluding
felons from public office.
In Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App.--Dallas 1980, no writ),
the court considered whether a conflict existed between the Election Code’s general
six-month residence requirement for candidates and a specific statute governing the
election of school trustees which, while requiring residence within the district, had
no durational requirement.5 Citing well-established rules of statutory construction
that require statutes to be harmonized where there is no positive repugnance
between the two, or where the statutes deal with the same subject matter, the court
31n a brief submitted in regard to this question the secretary of state advises that it is the
position of that office that ‘for a statute to be held as establishing exdusive eligibility requirements, it
must expressly so state.” We note that section 31.004 of the Election Code provides:
(a) The secretary of state shall assist and advise all election
authorities with regard to the application, operation, and interpretation of
this code and of the election laws outside this code.
(b) The secretary shall maintain an informational service for
answring inquiries of election authorities relating to the administration
of the election law or the performanw of their duties.
tie provision of the Election Code of 1951 disfranchising felons, article 1.05, was liberalized
in 1983. Acts 1983,68th Leg., ch. 792. Former artide 1.05 is the source law for current section 141.001
of the ELxtion Code of 1985.
SThe general provision considered in Brown was former article 1.05 of the Election Code of
1951, the predecessor to current section 141.001 of the Election Code of 1985.
p. 451
Honorable John W. Segrest - Page 4 (DM-89)
found that the general and specific requirements were cumulative of each other.
We think this reasoning is appropriate here as well. The requirements of section
23.024(a) of the Local Government Code are not in contlict with the requirement of
section 141.001(a)(4) of the Election Code. Rather, in this respect, section
141.001(a)(4) merely prescribes an additional requirement. We further note that a
candidate for office in a type B general law city must state on his application for a
place on the ballot that he has not been finally convicted of a felony from which he
has not been pardoned or otherwise released from the resulting disabilities. Elec.
Code $6 143.004, 141.031(4)(G). A candidate who does not meet the requirement
of section 141.001(a)(4) is not eligible to an elective office in a type B general law
city.
SUMMARY
Section 23.024 of the Local Government Code does not
exclusively govern eligibility to elective office in a type B general
law city and does not conflict with section 141.001(a)(4) of the
Election Code. A candidate who does not meet the
requirements of section 141.001(a)(4) is not eligible to an
elective office in a type B general law city.
DAN MORALES
Attorney General of Texas
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Honorable John W. Segrest - Page 5 (DM-89)
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RBNEAHIcKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opiniqn Committee
Prepared by John Steiner
Assistant Attorney General
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