How should Jefferson County Drainage District No. 7 select five commissioners after two of its five municipalities merged?

Texas AG Opinion JM-284: Drainage District Elections

Plain-English summary

The Jefferson County Criminal District Attorney asked how Drainage District No. 7 should select commissioners after two municipalities within the district merged, leaving four rather than five municipalities. The district's special law called for five commissioners and, while five municipalities existed, limited selection to no more than one commissioner from each municipality. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

JM-284 focused on federal Voting Rights Act section 5, which at the time required covered jurisdictions to obtain federal approval before enforcing a change in voting practice or procedure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

The opinion warned that changing the geographic selection system, including moving to an entirely at-large system, might reduce minority voting strength and produce the kind of retrogression addressed in Beer v. United States, 425 U.S. 130 (1976). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

The district therefore had to continue choosing commissioners from the existing geographic areas unless it obtained the federal approval then required or the Texas Legislature changed the governing statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Why did the municipal merger create an election problem?

The district had five commissioner seats, and its special law tied commissioner selection to the existence of five municipalities. After two municipalities merged, only four remained. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Could the district simply elect all five commissioners at large?

Not under JM-284's analysis without the required approval. The opinion said at-large selection would remove the commissioner residency requirement and could face a claim that it diluted minority voting strength. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

What federal approval did the opinion identify?

At the time, section 5 allowed either a declaratory judgment from the United States District Court for the District of Columbia or preclearance from the United States Attorney General. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

What did the district have to do before obtaining that approval?

JM-284 said its commissioners “should continue to be selected from their present geographical areas.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Could the Texas Legislature resolve the issue?

The opinion recognized legislative modification of the district's governing statute as the other route for changing the selection framework. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Background and statutory framework

The district's special law vested management in five commissioners and incorporated general drainage-district provisions. It also allowed an at-large election upon a qualifying taxpayer petition but limited appointments and elections to one commissioner per municipality while five municipalities existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Section 5 of the Voting Rights Act then prohibited Texas and its political subdivisions from enforcing a change in voting practice or procedure without federal review. Beer v. United States described the provision's purpose as preventing retrogression in racial minorities' effective exercise of the franchise. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

White v. Regester supplied the opinion's concern that an at-large election arrangement could dilute minority voting strength. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Citations and references

• Special act governing Jefferson County Drainage District No. 7, section 4
• Water Code sections 56.061 through 56.064
• Article 8161b, section 7, Revised Civil Statutes of Texas
• Voting Rights Act of 1965 section 5, 42 U.S.C. §1973c (1982)
• Beer v. United States, 425 U.S. 130 (1976)
• White v. Regester, 412 U.S. 755 (1973)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0284
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0284.pdf

Original opinion text

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

The Attorney General of Texas

December 28, 1984

Honorable James S. McGrath
Criminal District Attorney
Jefferson County
P. O. Box 2553
Beaumont, Texas 77704

Opinion No. JM-284

Re: Election of commissioners in Jefferson County Drainage District No. 7

Dear Mr. McGrath:

You have asked for an opinion construing language in section 4 of the act establishing Jefferson County Drainage District No. 7 respecting the appointment or election of commissioners “as long as five municipalities exist within the district.” Acts 1962, 57th Leg., 3rd C.S., ch. 34, at 98; Acts 1977, 65th Leg., ch. 614, at 1520. As amended, the provision now reads:

Sec. 4. The management and control of the District shall be vested in five Commissioners. Except as provided by this Act, the General Law of the State of Texas relating to the Commissioners of drainage districts shall apply to the Commissioners of the District. The present Commissioners of the District shall remain in office for the remainder of their terms of office, and the provisions of Sections 56.061 through 56.063, Water Code, and Article 8161b, Sec. 7, Revised Civil Statutes of Texas, 1925, as amended, shall apply to the Commissioners of the District. Section 56.064, Water Code, as amended, shall apply to this District, except that the Commissioners Court shall order the election on petition of at least 20 percent of the real property taxpayers of the district, and that five Commissioners shall be elected at large if an election is ordered under that section, with the Commissioners Court selecting the fifth Commissioner from the persons tying for fifth place in the event of a tie. After the expiration of the terms of the present Commissioners, no more than one Commissioner shall be appointed and/or elected from any one municipality as long as five municipalities exist within the district. For all purposes, a quorum for doing business shall consist of a majority of the Commission. (Emphasis added).

You indicate that interpretation is necessary because two of the municipalities that formerly existed within the district have now merged so that there now exist 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 §§56.061-56.064.

Section 5 of the federal Voting Rights Act of 1965, 42 U.S.C. §1973c (1982), as amended, prohibits a state or political subdivision 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 conditions has occurred. The political subdivision is required either 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 change from the Attorney General of the United States. See Beer v. United States, 425 U.S. 130 (1976). As the Supreme Court declared in Beer,

. . . 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 racial 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 commissioners, i.e., any deviation from the present geographical basis for selection in order to conform to new political boundaries, including the selection of all commissioners on an at-large basis, might lead to the kind of retrogression which the Court condemned in Beer. Selection on an at-large basis would remove entirely any residency requirement for District commissioners and subject the electoral scheme to a challenge 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 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.

SUMMARY

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. §1973c (1982), by obtaining either a declaratory judgment from the 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK 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