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                                      The Attorney             General of Texas

“M MATTOX                                                 De :ember 28,      1984
 ttorney General


     .preme ceurc BUlldirlQ          lionorable James S. McGrath                         Opinion No. m-284
r. 0. Box 12548                      Criminal District  At'xrney
Austin, TX. 79711.2548               Jefferson  County                                   Re: Election of commissioners
-‘2/4752501                          P. 0. Box 2553                                      In Jefferson    County Drainage
    .,0x 910l8711387
 I dIecopier   51214750258
                                     Beaumont, Texas    77’104                           District  No. 7

                                     Dear Mr. McGrath:
   4 Jackson, Suite 700
raIlas. TX. 752024506
                                           You have asked for an opinion construing language in section 4 of
2141742-8944
                                     the act     establishing      Jefferson  County Drainage    District   No. 7
                                     respecting   the appo:lntment or election      of commissioners   “as long as
424     Alberta    Ave., Suite 180   five municipalities      exist within the district.”  Acts 1962. 57th Leg.,
El Paso. TX. 799052793               3rd C:S., ch. 34, at 98; Acts 1977. 65th Leg., ch. 614, at 1520.           As
- 1515333484                         amended, the provision      now reads:

 ,     , Texas,    Suite 700                       Sec.     4.      The management and control               of the
     ouston,   TX. 77002-3111                  District       &all       be vested in five Commissioners.
     I312236885                                Except as %ovided             bv this Act,      the General Law
                                               of    - the      ‘!;tate     of-   Texas     ielating       to       the
                                               Commissioners of drainage districts                 shall apply to
 X Broadway. Suite 312
  ,bbock. TX. 79401.3479
                                               the Commiwioners of the District.                      The present
~061747-5238                                   Comlssioners            of the District         shall     remain in
                                               office     for-the remainder of their terms of office,
                                               and the $:ovisions               of Sections       56.061     through
      3M) N. Tenth. Suite S
                                               56.063,      W:lter Code. and Article             8161b, Sec. 7.
    r.icAllm. TX. 78501.1685
    5121882.4547
                                               Revised Civil Statutes of Texas, 1925. as amended.
                                               shall apply to the Conmissioners of the District.
                                               Section       56.064.       Water Code, as amended, shall
    &O Main Plaza. Suite 400
                                               apply       to       this     District,       except      that       the
    San Anlonio,    TX. 70205.2797
                                               Commissioners Court shall order the election                          on
    -1212254191
                                               petition        of at least          20 percent       of the real
                                               property taxpayers of the district,                  and that five
    An Equal OppOrtunityI                      Conmissioners           shall    be elected      at large       if    an
     ,ltirmative Aclion Employer               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.




TOMGFLEEN
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
