Attorney General Opinion JM-0284

n “M MATTOX ttorney General .preme ceurc BUlldirlQ r. 0. Box 12548 Austin, TX. 79711.2548 -‘2/4752501 .,0x 910l8711387 I dIecopier 51214750258 4 Jackson, Suite 700 raIlas. TX. 752024506 2141742-8944 424 Alberta Ave., Suite 180 El Paso. TX. 799052793 - 1515333484 , , Texas, Suite 700 ouston, TX. 77002-3111 I312236885 X Broadway. Suite 312 ,bbock. TX. 79401.3479 ~061747-5238 3M) N. Tenth. Suite S r.icAllm. TX. 78501.1685 5121882.4547 &O Main Plaza. Suite 400 San Anlonio, TX. 70205.2797 -1212254191 An Equal OppOrtunityI ,ltirmative Aclion Employer The Attorney General of Texas De :ember 28, 1984 lionorable James S. McGrath Criminal District At'xrney Jefferson County P. 0. Box 2553 Beaumont, Texas 77’104 Dear Mr. McGrath: You have asked for an opinion construing language in section 4 of Opinion No. m-284 Re: Election of commissioners In Jefferson County Drainage District No. 7 the act establishing Jefferson County Drainage District No. 7 respecting the appo:lntment or election of commissioners “as long as five municipalities exist within the district.” Acts 1962. 57th Leg., 3rd C:S., ch. 34, at 98; Acts 1977. 65th Leg., ch. 614, at 1520. As amended, the provision now reads: Sec. 4. The management and control of the District &all be vested in five Commissioners. Except as %ovided bv this Act, the General Law of - the ‘!;tate of- Texas ielating to the Commissioners of drainage districts shall apply to the Commiwioners of the District. The present Comlssioners of the District shall remain in office for-the remainder of their terms of office, and the $:ovisions of Sections 56.061 through 56.063, W:lter Code. and Article 8161b, Sec. 7. Revised Civil Statutes of Texas, 1925. as amended. shall apply to the Conmissioners of the District. Section 56.064. Water Code, as amended, shall apply to this District, except that the Commissioners Court shall order the election on petition of at least 20 percent of the real property taxpayers of the district, and that five Conmissioners shall be elected at large if an 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. TOM GFLEEN 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