Does a candidate for a Texas community college board of regents have to meet a six-month residency requirement?

TX AG Opinion GA-0555: Must a community college regent candidate meet a six-month residency rule?

Plain-English summary

Del Mar College is a two-year public college in Corpus Christi run by a board of regents elected by voters in the college district. The Nueces County District Attorney asked the Attorney General how long a candidate for that board has to have lived in the area before running. The question came up because two different statutes seemed to point in different directions.

The Election Code, in section 141.001(a)(5)(B), sets a general residency rule for candidates for public office in Texas: a person must have lived in the state for twelve months and in the territory the office represents for at least six months before the filing deadline. The Education Code, which governs community college board elections in section 130.082, says only that a board member must be a "resident, qualified elector" of the district, and that any "resident, qualified elector" may get on the ballot by applying to the secretary of the board. It does not mention a six-month period. The District Attorney suggested the Education Code's silence meant the six-month rule did not apply, so a newly registered voter could run as soon as they established residence.

The Attorney General disagreed and concluded both requirements apply together. The Election Code itself says it yields to an outside statute only "to the extent of any conflict," and does not apply at all where another statute sets "exclusive eligibility requirements." The Attorney General relied on Brown v. Patterson, a 1980 case involving nearly identical Election Code and Education Code provisions for a school board, which held that the Education Code's general "resident, qualified voter" language did not exempt candidates from the Election Code's six-month rule. Following Brown, the opinion read the two statutes harmoniously: a candidate for the Del Mar College board must be a resident, qualified elector under the Education Code and must also meet the Election Code's six-month residency requirement. The Education Code's open-ballot language did not amount to "exclusive eligibility requirements" that would override the Election Code.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Election Code and Education Code residency and eligibility provisions cited here may have been amended since 2007. Anyone weighing a run for a community college board should confirm the current text of Election Code section 141.001 and Education Code section 130.082, and any local district rules, before relying on this analysis.

Who this opinion affected (as of 2007)

People considering running for the Del Mar College board (and similar community college boards): The opinion told them that being a registered voter living in the district was not enough by itself. They also had to have resided in the territory the seat represents for at least six months before the application filing deadline.

Community college districts and their board secretaries: The opinion explained that the Education Code's general "resident, qualified elector" ballot-access language did not displace the Election Code's six-month residency requirement, so both standards governed candidate eligibility.

Voters and election challengers: The opinion identified the six-month requirement as the long-standing public policy behind candidate-residency rules, the idea being that voters and candidates should be acquainted with each other and the district's needs.

Common questions

How long must a candidate for a Texas community college board have lived in the district?
Under this opinion, at least six months in the territory the seat represents (and twelve months in the state), measured before the regular filing deadline, per Election Code section 141.001(a)(5)(B).

The Education Code only says "resident, qualified elector." Doesn't that override the six-month rule?
No. The Attorney General concluded the Education Code's general language did not set "exclusive eligibility requirements," so it did not displace the Election Code. Both the Education Code and the Election Code requirements applied together.

Why did the Attorney General read the two statutes together instead of letting one win?
The Election Code says it is superseded only "to the extent of any conflict." Following Brown v. Patterson, the opinion found no real conflict: a candidate can satisfy both by being a resident, qualified elector who has also lived in the district for six months.

What was Brown v. Patterson and why did it matter here?
It was a 1980 appeals court decision on nearly identical school-board provisions. The court held that the Education Code's general residency language did not exempt a trustee candidate from the Election Code's six-month rule absent "express and mandatory language," and the Attorney General applied the same reasoning to the college board.

Background and statutory framework

Election Code section 141.001(a)(5)(B) makes a candidate for public office eligible only if the person has resided continuously in the state for twelve months and in the territory from which the office is elected for six months immediately preceding the regular filing deadline (Tex. Elec. Code Ann. § 141.001(a)(5)(B) (Vernon 2003); see § 1.005(9) (Vernon 2003) (an "independent candidate" includes a candidate in a nonpartisan election); § 1.015 (Vernon 2003) (defining "residence")). Section 141.001 also provides that a statute outside the Election Code supersedes subsection (a) "to the extent of any conflict," and that subsection (a) does not apply to an office for which the constitution or an outside statute "prescribes exclusive eligibility requirements" (Tex. Elec. Code Ann. § 141.001(b)-(c) (Vernon 2003)).

Education Code section 130.082 governs the election of junior college boards, providing that elections are held under the Election Code except as otherwise provided, that each board member must be a "resident, qualified voter of the district," and that any "resident, qualified elector" may be placed on the ballot by applying to the secretary of the board (Tex. Educ. Code Ann. § 130.082(a), (d), (f), (g) (Vernon 2002); see § 130.0822 (Vernon 2002) (single-member trustee districts); Oser v. Cullen, 435 S.W.2d 896, 898-99 (Tex. Civ. App.-Houston [1st Dist.] 1968, writ dism'd) (a "qualified elector" or "qualified voter" holds a voter registration certificate)).

Brown v. Patterson addressed nearly identical Election Code and Education Code provisions in the school-trustee context. The court resolved the apparent conflict by examining the policy behind the residency requirement, traced to 1895, and held that the Education Code did not exempt trustees from the six-month rule absent "express and mandatory language," so the Election Code requirement applied (Brown v. Patterson, 609 S.W.2d 287, 288-89, 290-91 (Tex. Civ. App.-Dallas 1980, no writ)). Applying Brown, the Attorney General concluded that Election Code section 141.001(a)(5)(B) and Education Code section 130.082(g) can be read together: a Del Mar College board candidate must be a resident, qualified elector and must also satisfy the six-month residency requirement, and the Education Code's ballot-access language does not prescribe "exclusive eligibility requirements" (Tex. Educ. Code Ann. § 130.082(g) (Vernon 2002); Tex. Elec. Code Ann. § 141.001(b)-(c) (Vernon 2003); Brown, 609 S.W.2d at 291).

Citations

Statutes:

• Tex. Elec. Code Ann. § 141.001(a)(5)(B) (Vernon 2003)
• Tex. Elec. Code Ann. § 141.001(a) (Vernon 2003)
• Tex. Elec. Code Ann. § 141.001(b)-(c) (Vernon 2003)
• Tex. Elec. Code Ann. § 1.005(9) (Vernon 2003)
• Tex. Elec. Code Ann. § 1.015 (Vernon 2003)
• Tex. Educ. Code Ann. § 130.082(a) (Vernon 2002)
• Tex. Educ. Code Ann. § 130.082(d) (Vernon 2002)
• Tex. Educ. Code Ann. § 130.082(f) (Vernon 2002)
• Tex. Educ. Code Ann. § 130.082(g) (Vernon 2002)
• Tex. Educ. Code Ann. § 130.0822 (Vernon 2002)

Cases:

• Brown v. Patterson, 609 S.W.2d 287, 288-89 (Tex. Civ. App.-Dallas 1980, no writ)
• Oser v. Cullen, 435 S.W.2d 896, 898-99 (Tex. Civ. App.-Houston [1st Dist.] 1968, writ dism'd)

Attorney General opinion referenced: none.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0555
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0555.pdf

Original opinion text

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

GREG ABBOTT

July 18, 2007

The Honorable Carlos Valdez
105th Judicial District Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3681

Opinion No. GA-0555

Re: Residency requirements for election to Del Mar College District Board of Regents (RQ-0562-GA)

Dear Mr. Valdez:

You inquire about the residency requirements applicable to candidates for election to the governing body of the Del Mar College District (the "District").[1] Del Mar College is a two-year institution of higher education governed by a board of regents elected by the voters of the District. Request Letter, supra note 1, at 1.

You state that the District has historically relied on Election Code section 141.001 as governing the residency requirement for candidates for election to the District's Board of Regents. See id. Election Code section 141.001(a)(5)(B) provides as follows:

(a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:

(5) have resided continuously in the state for 12 months and in the territory from which the office is elected for six months immediately preceding the following date:

(B) for an independent candidate, the date of the regular filing deadline for a candidate's application for a place on the ballot. . . .

TEX. ELEC. CODE ANN. § 141.001(a) (Vernon 2003).[2] Section 141.001(a)(5)(B) requires a candidate for regent of the District to reside in the territory from which the office is elected for at least six months before the filing deadline.[3]

You point out, however, that Election Code section 141.001(b) provides that "[a] statute outside this code supersedes Subsection (a) to the extent of any conflict," and section 141.001(c) provides that "[s]ubsection (a) does not apply to an office for which the federal or state constitution or a statute outside this code prescribes exclusive eligibility requirements." TEX. ELEC. CODE ANN. § 141.001(b)-(c) (Vernon 2003); Request Letter, supra note 1, at 2; see also TEX. EDUC. CODE ANN. § 130.082(f) (Vernon 2002) (elections for members of the junior college board "shall be held in accordance with the Texas Election Code except as hereinafter provided"). Education Code section 130.082, which governs the election of Del Mar College regents, includes language that you believe may conflict with the six-month residency requirement in Election Code section 141.001(a)(5)(B). See TEX. EDUC. CODE ANN. § 130.082(a) (Vernon 2002) (governing boards of junior colleges shall be chosen pursuant to section 130.082, subject to certain exceptions); Request Letter, supra note 1, at 2. Section 130.082(d) provides that "[e]ach member of the board shall be a resident, qualified voter of the district." TEX. EDUC. CODE ANN. § 130.082(d) (Vernon 2002) (emphasis added). Section 130.082(g) provides that "[a]ny resident, qualified elector of the district may have his or her name placed as a candidate on the official ballot for any position to be filled at each regular election" by applying to the secretary of the board. Id. § 130.082(g) (emphasis added). See Oser v. Cullen, 435 S.W.2d 896, 898-99 (Tex. Civ. App.-Houston [1st Dist.] 1968, writ dism'd) (a "qualified elector" or "qualified voter" holds a voter registration certificate); BLACK'S LAW DICTIONARY 1254 (7th ed. 1999) (a qualified elector is a legal voter, who meets the requirements for voter registration and has the present right to vote in an election).

Section 130.082(g) does not include a six-month residency requirement, and you suggest that it dispenses with this requirement "in direct contradiction of Section 141.001 of the Election Code." Request Letter, supra note 1, at 2. You suggest that the Education Code provision referring to "residency" controls over the Election Code section 141.001(a)(5)(B) six-month residency requirement. See id. Under your interpretation, a registered voter could be a candidate for the District Board of Regents upon establishing residency in the district or the applicable trustee district. See TEX. ELEC. CODE ANN. § 1.015 (Vernon 2003) (defining "residence").

Brown v. Patterson, which addresses two statutes very similar to the Election Code and Education Code provisions at issue here, provides the answer to your question. See Brown v. Patterson, 609 S.W.2d 287, 288-89 (Tex. Civ. App.-Dallas 1980, no writ). In that case, an individual was appointed to a vacancy in the Dallas Independent School District's board of trustees, and the appointment was contested on the ground that the appointee did not fulfill the statutory residency requirements. See id. at 288. The Election Code included the requirement now found in Election Code section 141.001(a)(5), requiring an appointee or candidate to have resided in the state for twelve months and in the district, precinct, or other political subdivision for which he was elected for six months before being appointed to or filing for an office. See id. (quoting Act of May 19, 1967, 60th Leg., R.S., ch. 723, § 4, 1967 Tex. Gen. Laws 1858, 1861 (formerly article 1.05 of the 1951 Election Code) (recodified in 1985) (current version at TEX. ELEC. CODE ANN. § 141.001(a) (Vernon 2003))). Another statute divided the Dallas Independent School District into nine single-member trustee districts and provided that "residence within the Trustee District from which a person seeks to be a candidate at the time of filing for office shall be a prerequisite to filing." Id. at 289 (quoting TEX. EDUC. AUX. LAWS art. 2783d (Vernon 2006) [Act of May 14, 1973, 63d Leg., R.S., ch. 211, § 1, 1973 Tex. Gen. Laws 485, 486]).

The appointed trustee, who had not resided within his trustee district for the six months immediately preceding his appointment, argued that the Education Code provision prevailed over the general residency requirements in the Election Code. See id. at 288-89. The court disagreed and resolved the alleged conflict between the Election Code and Education Code residency provisions by examining the policy underlying the provisions. See id. at 289. It said that the general residency requirements for election to office, first adopted in 1895, represented the longstanding and fixed public policy of the state, that a candidate for public office must have resided in the particular district or precinct from which he is elected for at least six months. See id. at 290 (citing Act approved April 20, 1895, 24th Leg., R.S., ch. 56, 1895 Tex. Gen. Laws 81, 81-82). The court noted that the residency requirement would "provide better representation by assuring that voters will be better acquainted with the qualifications and views of the candidates and that candidates will be better acquainted with and responsive to the needs and desires of the voters." Id. It found no indication that the Legislature intended the Education Code to exempt school trustees from residing for six months in the trustee district. See id. at 291. "Such a departure from the long-established policy and political tradition of the state should not be attributed to the legislature in the absence of express and mandatory language." Id. Because the Education Code did not expressly exempt school trustees from residing for six months in the trustee districts from which they were elected, they were subject to the Election Code residency requirements. See id. at 291.

We conclude on the basis of Brown that Election Code section 141.001(a)(5)(B) and Education Code section 130.082(g) can be read together. See id. ("[W]e can give full effect to both statutes and their underlying policies by holding that there is no conflict . . . ."). A candidate for the District's Board of Regents must be a "resident, qualified elector" under Education Code section 130.082(g) and must satisfy Election Code section 141.001(a)(5)'s six-month residency requirement. TEX. EDUC. CODE ANN. § 130.082(g) (Vernon 2002); see TEX. ELEC. CODE ANN. § 141.001(b) (Vernon 2003) (six-month residency requirement superseded only "to the extent of any conflict"). Moreover, on the basis of Brown's holding, we conclude that Education Code section 130.082(g)'s permitting any resident, qualified voter to become a candidate by applying to the secretary of the board does not prescribe "exclusive eligibility requirements." See TEX. ELEC. CODE ANN. § 141.001(c) (Vernon 2003) (making the six-month residency requirement inapplicable if another statute prescribes exclusive eligibility requirements); Brown, 609 S.W.2d at 291 (requiring "express and mandatory language" to depart from the long-established policy of a six-month residency requirement). Accordingly, a candidate for election to the Del Mar College District Board of Regents must comply with the six-month residency requirement set out in Election Code section 141.001(a)(5)(B).

SUMMARY

A candidate for election to the Del Mar College District Board of Regents must comply with the six-month residency requirement in Election Code section 141.001(a)(5)(B). Education Code section 130.082(g) does not exempt candidates from the Election Code requirement.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Carlos Valdez, Nueces County District Attorney, 105th Judicial District, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Jan. 12, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] The term "independent candidate" includes a candidate in a nonpartisan election. See TEX. ELEC. CODE ANN. § 1.005(9) (Vernon 2003).

[3] The Del Mar College Board of Regents includes at-large members and members elected from a defined area within the District's boundaries. See DEL MAR COLLEGE, BOARD OF REGENTS, available at http://www.delmar.edu/bdadmin.html (last visited July 16, 2007); see also TEX. EDUC. CODE ANN. § 130.0822 (Vernon 2002) (junior college board may order that all or a majority of board members be elected from single-member trustee districts). Thus, some regents are elected from single-member districts and others from the entire junior college district.