                            ATTORNEY GENERAL OF TEXAS
                                         GREG       ABBOTT




                                             March 19,2013


Ms. Michelle Hunter                                 Opinion No. GA-0995
Executive Director
State Bar of Texas                                  Re: Whether State Bar of Texas president-elect
Post Office Box 12487                               candidates who are nominated by petition under
Austin, Texas 78711                                 subsection 81.019(c), Government Code, are
                                                    nevertheless subject to State Bar of Texas
                                                    election rules and policies (RQ-1 088-GA)

Dear Ms. Hunter:

         You ask whether State Bar of Texas (the "State Bar") president-elect candidates
nominated by petition under subsection 81.019(c) of the Government Code are subject to State
Bar election rules and policies. 1 The State Bar is defined by statutes as an administrative agency
of the judicial department of government whose purpose is to aid the Texas Supreme Court in the
Court's regulation of the practice of law in Texas. TEX. Gov'T CODE ANN. § 8l.Oll(a)-(b)
(West 2005). The Supreme Court exercises administrative control over the State Bar and
promulgates the rules under which the State Bar is governed. !d. §§ 81.011(c), .024(a). The
State Bar board of directors (the "Board") is the governing body within the State Bar. !d.
§ 81.020(a); Tex. State BarR. art. IV, § 1(D), reprinted in TEX. Gov'T CODE ANN., tit. 2, subtit.
G app. A (West Supp. 2012) (entitled "State Bar Rules").

       Section 81.019 of the Government Code pertains to the election of the State Bar officers,
which are the president, president-elect, and immediate past president. TEX. Gov'T CODE ANN.
§ 81.019(a) (West 2005). Specifically, section 81.019 provides:

                (b) Except as provided by Subsection (c), the officers shall be
                elected in accordance with rules for the election of officers and
                directors prepared and proposed by the supreme court as provided
                by Section 81.024.

                (c) The election rules must permit any member's name to be
                printed on the ballot as a candidate for president-elect if a written
                petition requesting that action and signed by at least five percent of

        1
         Letter from Ms. Michelle Hunter, Exec. Dir., State Bar of Tex., to Honorable Greg Abbott, Tex. Att'y
Gen. at 1-2 (Oct. 2, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").
Ms. Michelle Hunter - Page 2                      (GA-0995)



                 the membership of the state bar is filed with the executive director
                 at least 30 days before the election ballots are to be distributed to
                 the membership.

/d. § 81.019(b)-(c) (emphasis added); see id. § 81.024 (directing the Supreme Court to
promulgate the rules governing the State Bar).

        You ask "whether president-elect candidates nominated by petitiOn under section
81.019(c) are subject to State Bar election rules and policies." Request Letter at 1-2. Subsection
(c) is a limited exception to subsection (b). The phrase, "[e]xcept as provided by ... ," in
subsection (b) has led some to believe that subsection (c) allows an officer to be elected
completely outside of the State Bar election rules promulgated by the Supreme Court. See
Request Letter at 1. Subsection (c), however, is merely a specific legislative requirement as to
what the "election rules must permit." TEX. Gov'T CoDE ANN. § 81.019(b)-(c) (West 2005).
The phrase, "[e]xcept as provided by Subsection (c)," ensures that the substantive requirements
of subsection (c) are in effect regardless of whether those requirements are reflected in the rules.
It does not exempt candidates from those rules. /d. § 81.0 19(c). Therefore, subsection (c) does
not exempt president-elect write-in candidates from the Supreme Court rules for State Bar
elections or from valid Board policies.

        We have received briefing suggesting that some portions of the Board's policies are
inconsistent with the Supreme Court's rules for the State Bar and with statutes, particularly with
regard to the policies and rules governing nomination by petition. 2 Board policy provides that
"[a]ny other qualified member" may be nominated by petition. State Bar of Tex. Bd. of Dirs.
Policy Manual § 2.01.05, at 18 (2012) ("Policy Manual") (emphasis added). Under section
2.01.04 of the Policy Manual, titled "Qualifications," "[a]ny member of the State Bar who meets
the eligibility requirements for Officers set forth in the State Bar Act and the State Bar Rules is
eligible for nomination for President-elect, provided such member is not currently serving as a
Board [of Directors] member." /d. § 2.01.04 (emphasis added). Thus, under State Bar policy,
sitting members of the Board who otherwise meet all eligibility requirements of the State Bar
rules nevertheless are precluded from being nominated for president-elect under Board policy.

        By contrast, the applicable State Bar rule directly tracks the language of subsection
81.019(c) by permitting "[a]ny other member of the State Bar" to stand for election for president-
elect by petition. Tex. State BarR. art. IV, § ll(B) (emphasis added). By their plain language,
neither section ll(B) nor subsection 81.019(c) prohibits sitting Board members from being
nominated for president-elect by petition. Policy Manual sections 2.01.04 and 2.01.05 are
therefore inconsistent with State Bar rule article IV, section 11 (B).

        The State Bar Rules provide that "[t]he board shall ... adopt such regulations and
policies, consistent with [chapter 81 of the Government Code] or these Rules .... " /d. art. IV,

        2
          Brief from Mr. Steve Fischer, State Bar of Texas Dir. Dist. 11, to Office of the Tex. Att'y Gen., at 2-4
(Oct. 15, 2012) (on file with the Op. Comm.).
Ms. Michelle Hunter - Page 3               (GA-0995)



§ l(D). Further, the Policy Manual acknowledges that no State Bar policy established by the
Board "shall be inconsistent or conflict with [chapter 81] [or] the State Bar Rules .... If there is
any such inconsistency or conflict, [chapter 81] [or] the State Bar Rules ... shall take precedence
over [the policy]." Policy Manual at 2. Board policy sections 2.01.04 and 2.01.05, relating to
the eligibility of certain members of the State Bar to stand for election for president-elect,
conflict with both subsection 81.019(c) of the Government Code and State Bar rule article IV,
section ll(B). Therefore, those policies are unenforceable.
Ms. Michelle Hunter - Page 4              (GA-0995)



                                     SUMMARY

                      State Bar of Texas president-elect candidates nominated by
              petition under subsection 81.019(c) of the Government Code are
              subject to all valid State Bar election rules and policies. Board
              policy sections 2.01.04 and 2.01.05, relating to the eligibility of
              certain members of the State Bar to stand for election for
              president-elect, conflict with both subsection 81.0 19(c) of the
              Government Code and State Bar rule article IV, section ll(B).
              Therefore, those policies are unenforceable.

                                            Very truly yours,




DANJEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee
