Untitled Texas Attorney General Opinion

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