Do State Bar of Texas petition candidates still have to follow election rules?

Plain-English summary

The executive director of the State Bar of Texas asked the Attorney General whether candidates for president-elect who are nominated by petition under Government Code section 81.019(c) are nevertheless subject to the State Bar's election rules and policies. The State Bar is an administrative agency of the judicial department that aids the Texas Supreme Court in regulating the practice of law, and the Supreme Court promulgates the rules under which the State Bar is governed. Section 81.019 covers the election of State Bar officers. Subsection (b) says that, except as provided by subsection (c), officers are elected under rules proposed by the Supreme Court, and subsection (c) says the election rules "must permit" a member's name to be printed on the ballot for president-elect if a petition signed by at least five percent of the membership is filed at least 30 days before ballots go out.

The phrase "[e]xcept as provided by Subsection (c)" had led some to think subsection (c) lets a petition candidate be elected entirely outside the Supreme Court's election rules. The opinion rejected that reading. Subsection (c) is just a specific legislative requirement about what the election rules must permit; the "except as provided" language ensures that subsection (c)'s substantive requirement is in effect whether or not the rules happen to reflect it. It does not exempt petition candidates from the rules. So president-elect candidates nominated by petition remain subject to the Supreme Court's State Bar election rules and to valid Board policies.

The opinion then examined a conflict that briefing had raised. Board policy (Policy Manual sections 2.01.04 and 2.01.05) allowed nomination by petition only for a member "not currently serving as a Board member," which barred sitting Board members from being nominated for president-elect. But subsection 81.019(c) and the matching State Bar rule (article IV, section 11(B)) both let "[a]ny other member of the State Bar" stand for election by petition, and neither prohibits sitting Board members from running. Because the State Bar Rules require Board policies to be consistent with chapter 81 and the Rules, and the Policy Manual itself says the statute and Rules take precedence over any conflicting policy, the opinion concluded that Policy Manual sections 2.01.04 and 2.01.05 conflict with both section 81.019(c) and article IV, section 11(B), and are therefore unenforceable.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The State Bar (as the opinion described it): The opinion told the State Bar that petition candidates for president-elect under section 81.019(c) remain subject to the Supreme Court's election rules and valid Board policies; subsection (c) is not an escape hatch from those rules.

Sitting State Bar Board members (as the opinion described it): The opinion described both section 81.019(c) and article IV, section 11(B) as permitting any other member to stand for election by petition without excluding sitting Board members, and it found the Board policies that excluded them unenforceable.

State Bar members generally (as the opinion described it): The opinion confirmed the petition route to the president-elect ballot (a petition signed by at least five percent of the membership, filed at least 30 days before ballots are distributed) while making clear it operates within, not outside, the election rules.

Common questions

Do State Bar of Texas petition candidates have to follow the election rules?
Yes, according to the opinion. It concluded that subsection 81.019(c) requires the rules to permit petition candidacies but does not exempt those candidates from the Supreme Court's State Bar election rules or valid Board policies.

What does the "except as provided by Subsection (c)" language mean?
The opinion read it to ensure that subsection (c)'s petition requirement is in effect regardless of whether the rules reflect it, not to let petition candidates be elected outside the rules.

Can a sitting State Bar Board member run for president-elect by petition?
Under the opinion, yes. It read section 81.019(c) and article IV, section 11(B) to let any other member run by petition without barring sitting Board members, and it found the Board policy excluding them unenforceable.

Why were the Board policies unenforceable?
The opinion explained that Board policies must be consistent with chapter 81 and the State Bar Rules, and the Policy Manual itself says the statute and Rules take precedence. Because Policy Manual sections 2.01.04 and 2.01.05 conflicted with section 81.019(c) and article IV, section 11(B), they could not be enforced.

Background and statutory framework

The opinion construed chapter 81 of the Government Code (the State Bar Act) and the State Bar Rules. It described the State Bar as an administrative agency of the judicial department aiding the Supreme Court in regulating the practice of law (section 81.011(a)-(b)), with the Supreme Court exercising administrative control and promulgating the governing rules (sections 81.011(c), .024(a)) and the Board of Directors as the governing body (section 81.020(a); State Bar Rules article IV, section 1(D)). Section 81.019 governs officer elections: subsection (a) names the officers, and subsections (b) and (c) set the election method and the petition requirement, with section 81.024 directing the Supreme Court to promulgate the rules.

The conflict analysis compared Board Policy Manual sections 2.01.04 and 2.01.05 (limiting petition nomination to a member not currently serving on the Board) against subsection 81.019(c) and State Bar rule article IV, section 11(B) (permitting "[a]ny other member of the State Bar" to stand by petition). The opinion relied on the State Bar Rules' requirement (article IV, section 1(D)) that Board policies be consistent with chapter 81 and the Rules, and on the Policy Manual's own precedence clause, to conclude the conflicting policies are unenforceable.

Citations

Statutes and rules:

• Tex. Gov't Code Ann. § 81.011(a)-(b) (West 2005); §§ 81.011(c), .024(a); § 81.020(a); § 81.019(a); § 81.019(b)-(c); § 81.019(c); § 81.024
• Tex. State Bar R. art. IV, § 1(D); art. IV, § 11(B)

Other authority:

• State Bar of Tex. Bd. of Dirs. Policy Manual §§ 2.01.04, 2.01.05 (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0995
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0995.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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-1088-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. § 81.011(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. Id. §§ 81.011(c), .024(a). The State Bar board of directors (the "Board") is the governing body within the State Bar. Id. § 81.020(a); Tex. State Bar R. 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 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.

Id. § 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. Id. § 81.019(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." Id. § 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 Bar R. art. IV, § 11(B) (emphasis added). By their plain language, neither section 11(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 . . . ." Id. art. IV, § 1(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 11(B). Therefore, those policies are unenforceable.

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 81.019(c) of the Government Code and State Bar rule article IV, section 11(B). Therefore, those policies are unenforceable.

Very truly yours,

DANIEL 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

[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").

[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.).