Can someone with a felony conviction run for alderman in a Texas type B general law city?

Texas AG Opinion DM-0089: Felony Conviction and Eligibility for Alderman

Plain-English summary

A district attorney asked how two Texas statutes fit together for someone who wants to run for alderman in a type B general law city. One statute, section 23.024(a) of the Local Government Code, says that to be eligible for mayor, alderman, or marshal a person must be a qualified voter in the municipality and must have lived inside the city limits for at least six months before election day. The other statute, section 141.001(a)(4) of the Election Code, says that to be eligible for any public elective office in the state a person must not have been finally convicted of a felony unless pardoned or otherwise released from the resulting disabilities. The question was whether a candidate who satisfies the local statute but flunks the Election Code's felony bar can still run.

The Attorney General said no. Section 141.001 of the Election Code applies to a candidate unless its requirements conflict with a statute outside the Election Code, or unless other law sets exclusive eligibility requirements for the office. Neither exception applied. Section 23.024(a) does not say, expressly or by clear implication, that it is the only set of qualifications for type B city candidates, and section 141.001(a)(6) shows the Legislature expected statutes outside the Election Code to add requirements. When two qualification statutes can be read as cumulative, the opinion said, a legislative intent that one applies exclusively must be express or clearly implied.

History reinforced this. Section 23.024(a) is a nonsubstantive recodification of former article 1141, which drew on voter qualifications that, when first enacted, permanently disfranchised all felons, so the source law itself would have barred felons from candidacy. There was no sign the Legislature meant the local statute to carve out an exception for felons. The opinion also pointed to Brown v. Patterson, where a court read the Election Code's general residence requirement and a specific school-trustee statute as cumulative rather than conflicting. Applying the same approach, section 141.001(a)(4) simply adds a requirement to the local ones. The opinion noted that a type B city candidate even has to state on his ballot application that he has not been finally convicted of an unpardoned felony. A candidate who does not meet section 141.001(a)(4) is not eligible.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Election Code candidate-eligibility provisions and the rules on when a felon's disabilities are removed have been amended since 1992. Verify current law before relying on any section number or rule mentioned here.

Common questions

Does a felony conviction keep you off the ballot for alderman?
Under this opinion, yes. The Election Code's felony bar (section 141.001(a)(4)) applies to candidates for alderman in a type B general law city, on top of the local voter and residency rules. A disqualifying felony conviction makes the candidate ineligible.

Doesn't the local statute set the rules for city offices?
It sets some rules (qualified voter, six-month residence), but the opinion found it does not exclusively govern eligibility. Because it does not say it is the only set of qualifications, the Election Code's requirements apply in addition to it.

What if the two statutes seem to point different directions?
The opinion treated them as cumulative, not conflicting. Courts harmonize statutes on the same subject where they are not positively repugnant, so the felony bar and the local rules both apply.

Can a felony conviction ever be cleared for this purpose?
The opinion noted that a person may be released from the disabilities of a felony conviction under the Code of Criminal Procedure, at the court's discretion, and that a candidate has to meet the requirement by the filing deadline. Whether a particular person qualifies depends on the facts of that release.

Background and statutory framework

Section 141.001 of the Election Code lists general candidate-eligibility requirements, including the felony bar in subsection (a)(4), the catch-all in (a)(6) recognizing "any other eligibility requirements prescribed by law," and subsections (b) and (c), which yield to outside statutes that conflict or that set "exclusive" eligibility requirements. Section 23.024(a) of the Local Government Code sets the local qualifications for mayor, alderman, or marshal (qualified voter and six-month resident). The opinion traced section 23.024 back through former articles 1141 and 1137, V.T.C.S., and noted that the felon-disfranchisement provision of the 1951 Election Code (article 1.05) was liberalized in 1983 (Acts 1983, 68th Leg., ch. 792). It relied on Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App.-Dallas 1980, no writ), for reading general and specific candidate statutes as cumulative, and cited Lemons v. State, 570 S.W.2d 593 (Tex. Civ. App.-Amarillo 1978, writ ref'd n.r.e.), on the release of felony disabilities (under Code Crim. Proc. art. 42.12, § 23). A type B city candidate's ballot-application felony declaration appears in Election Code §§ 143.004 and 141.031(4)(G), and the secretary of state's advisory role is in § 31.004.

Citations

Statutory provisions:

• Election Code § 141.001, including § 141.001(a)(4) (felony bar), (a)(6), (b), and (c)
• Election Code § 143.004 and § 141.031(4)(G) (ballot-application felony declaration)
• Election Code § 31.004 (secretary of state's advisory role)
• Local Gov't Code § 23.024 (eligibility for mayor, alderman, or marshal)
• Code Crim. Proc. art. 42.12, § 23 (release from felony disabilities)

Cases:

• Lemons v. State, 570 S.W.2d 593 (Tex. Civ. App.-Amarillo 1978, writ ref'd n.r.e.)
• Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App.-Dallas 1980, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0089
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0089.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

February 7, 1992

Honorable John W. Segrest
Criminal District Attorney
McLennan County
302 Courthouse
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 23.024(a) of the Local Government Code, but not the requirements of section 141.001(a)(4) of the Election Code (RQ-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[1] from the resulting disabilities; [and]

. . . .

(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.

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

To be eligible for the office of mayor, alderman, or marshal 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 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.[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. 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, § 1. 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 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 conflict 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 §§ 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

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General

[1] A person may be released from the disabilities resulting from a felony conviction pursuant to the provisions of article 42.12, section 23, of the Code of Criminal Procedure. Such a release from disabilities is within the discretion of the court. Accordingly, as pointed out in the district attorney's brief accompanying the request for this opinion, a candidate subject to section 141.001(a)(4) must meet that requirement by the filing deadline in order to be a candidate. Lemons v. State, 570 S.W.2d 593 (Tex. Civ. App.-Amarillo 1978, writ ref'd n.r.e.).

[2] 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.

[3] In 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 exclusive 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 answering inquiries of election authorities relating to the administration of the election law or the performance of their duties.

[4] The provision of the Election Code of 1951 disfranchising felons, article 1.05, was liberalized in 1983. Acts 1983, 68th Leg., ch. 792. Former article 1.05 is the source law for current section 141.001 of the Election Code of 1985.

[5] The 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.