n

“M MATTOX ttorneyGeneral

.premeceurcBUlldirlQ
r. 0. Box 12548 Austin, TX. 79711.2548

-‘2/4752501 .,0x 910l8711387 IdIecopier 51214750258

4Jackson, Suite 700 raIlas. TX. 752024506 2141742-8944

424 Alberta Ave., Suite 180 ElPaso. TX. 799052793

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, ,Texas, Suite 700 ouston, TX. 77002-3111 I312236885

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# TheAttorney General ofTexas

De:ember 28, 1984

lionorable JamesS. McGrath Criminal District At'xrney Jefferson County P. 0. Box2553 Beaumont, Texas 77 ’104
DearMr.McGrath:
Youhave asked for anopinion construing language in section 4of 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 nowreads:

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, andthat 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 atie. After the expiration of the tezm,sof the present Commissioners. nomore than one ?o&ssioner shall be appointed and/or elected f&o anyonemunicipality as long as five municipaljtles exist within the district. For all

P. 1261Honorable JamesS. HcCrath- Page2 (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 twoof the municipalities that formerly existed within the district have now merged so that there nowexkt only four municipalities within the district rather than five. The,provision waslast amendedin 1977and the terms of the commissioners who were then the “present commissioners” have since expired. WaterCodeSS56.061 - 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 tovoting different from that in force andeffect onNovember 1. 1964.” unless one of two c,ondltions has occurred. Thepolitical 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

### willnot have the effect of denying or abridging the right tovote onaccount 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 SupremeCourt declared inB&,

. . . the purpose of section 5has always been to assure that novoting-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.. anydeviation fromthe present geographical basis for selection in order to conform to new political boundaries, j~ncluding the selection of a:11commissioners 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 onanydeviation fromthe 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 declaratoryHonorable JamesS. McGrath- Page3 (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 tomodify the governing statute.

Unless anduntil the Jefferson CountyDrainage 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.

TOMGFLEEN First Assistant Attorney General
DAVIDR. RICHARDS Executive.Asslstant Attorney Banera
RICRGILPIN Chairman. Opinion Committee Prepared byRick Gilpin Assistant Attorney General
APPROVED: OPINIONCOMMITTEE
Rick Gilpin. Chairman Colin Carl SusanGarrison TonyGuillory JimMoellinger Jennifer Riggs

D. 1263