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