                                QBffice   of toe !Zlttornep          Qhneral
                                            Btate of ?Ilexae
DAN MORALES                                  February 7,1992
 ATTORNEY
      GENERAL

     Honorable John W. Segrest                           Opinion No. DM-89
     criminal District Attorney
     McLennan County                                     Re: Whether a candidate is eligible to
     302 Courthouse hex                                  the office of alderman in a type B gen-
     Waco, Texas 76701                                   eral 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 of section 141.001 of the Election Code and section
    23.024 of the Local Government Code. Specifically, you ask 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 23.024(a) of the Local Government Code, but not the
    requirement of section 141.001(a)(4) of the Election Code.

            Section 141.001 of the Texas Election Code provides, in part:

                    (a) To be eligible to be a candidate for, or elected or
                appointed to, a public elective office in this state, a person 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 may be 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
    brief accompanying the request for this opiaion, a candidate subjtd to section 141.001(a)(4) must meet



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Honorable John W. Segrest - Page 2               (DM-89)




                . . . .


                             (6) satisfy any other eligibility requirements
                          prescribed by law for the office.

               (b) A statute outside this code supersedes Subsection (a) to
           the extent of any conflict.

               (c) Subsection (a) does not apply to an office for which the
           federal or state constitution or a statute outside this code
           prescribes exclusive eligibility requirements. (Footnote added.)

        Section 23.024(a) of the Local Government Code provides:

                To be eligible for the office of mayor, 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 six months preceding election day.

       On the plain language of section 141.001 of the Election Code, a candidate
must meet its requirements unless the requirements “conflict” with a statute outside
the Election Code or unless other constitutional or statutory law is “exclusive”as to
the requirements for a particular office. We conclude that section 22.024 of the
Local Government Code does not exclusively govern 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, writ ret’d n.r.e.).

       we note that there are other 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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Honorable John W. Segrest - Page 3                ( DM- 8 9 1




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. See Acts 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 23.024 was 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 a legislative intent to carve out an exception to the general rule excluding
felons from public office.

        In Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App.--Dallas 1980, no writ),
the court considered whether a conflict existed between the Election Code’s general
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

         31n a 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 31.004 of the Election Code provides:

                       (a) The secretary of state shall assist and advise all election
                 authorities with regard to the application, operation, and interpretation of
                 this code and of the election laws outside this code.


                       (b) The secretary shall maintain an informational service for
                 answring inquiries of election authorities relating to the administration
                 of the election law or the performanw of their 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 1.05 is the source law for current section 141.001
of the 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 141.001 of the Election Code of 1985.




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Honorable John W. Segrest - Page 4        (DM-89)




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) of the 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 of a 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
          exclusively govern 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.         A candidate who does not meet the
          requirements of section 141.001(a)(4) is not eligible to an
          elective office in a type B general law city.




                                                     DAN      MORALES
                                                     Attorney General of Texas




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Honorable John W. Segrest - Page 5   (DM-89)




WILL PRYOR
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 by John Steiner
Assistant Attorney General




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