DAN MORALES

ATTORNEY GENERAL 

### QBffice of toe !Zlttornep Qhneral 

### Btate of ?Ilexae February 7,1992
Honorable John W.Segrest criminal District Attorney McLennan County 302Courthouse hex Waco,Texas 76701 Opinion No.DM-89 Re: 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 23.824(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 ofsection 141.001ofthe Election Code and section 23.024ofthe Local Government Code. Specifically,you askwhether a candidate is eligible to the office ofalderman in a type B general law city ifthe candidate meets the requirements of section 23.024(a) ofthe Local Government Code, but not the requirement ofsection 141.001(a)(4) ofthe Election Code. Section 141.001ofthe Texas Election Code provides, inpart: (a) To be eligible to be a candidate for, or elected or appointed to, apublic elective officein this state, aperson 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 maybe 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 briefaccompanying the request for this opiaion, acandidate subjtd to section 141.001(a)(4) must meet

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. . . . (6) satisfy any other eligibility requirements prescribed bylawforthe office. (b) A statute outside this code supersedes Subsection (a) to the extent ofany conflict. (c) Subsection (a) does not apply to an office for which the federal or state constitution or a statute outside this code prescribes exclusiveeligibilityrequirements. (Footnote added.) Section 23.024(a) ofthe Local Government Code provides: Tobe eligible for the office ofmayor, 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 sixmonths preceding election day. On the plain language of section 141.001ofthe Election Code, a candidate must meet itsrequirements unless the requirements “conflict” with a statute outside the Election Code or unless other constitutional or statutory lawis “exclusive”as to the requirements for a particular office. We conclude that section 22.024 of the Local Government Code does not exclusivelygovern 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,writret’dn.r.e.).

we note that there areother 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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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. SeeActs 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 23.024was 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 alegislative intent to carve out an exception to the general rule excluding felonsfrom public office. InBrownv.Patterson,609S.W.2d287(Tex. Civ.App.--Dallas 1980,no writ), the court considered whether a conflictexisted between the Election Code’sgeneral 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
31na 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 31.004of the Election Code provides:

(a) The secretary of state shall assist and advise all election authorities with regardto the application, operation, and interpretation of this code and ofthe election lawsoutside this code. (b) The secretary shall maintain an informational service for answring inquiries of election authorities relating to the administration ofthe election law orthe performanw oftheir 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 1.05is the source law for current section 141.001 ofthe 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 141.001ofthe Election Code of 1985.

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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) ofthe 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 ofa 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 exclusivelygovern eligibility to elective officein a type Bgeneral 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 officein a type Bgeneral lawcity.

DAN MORALES Attorney General ofTexas

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WILLPRYOR 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 byJohn Steiner Assistant Attorney General

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