The Attorney General of Texas
April 9, 1980
MARK WHITE
Attorney General
Honorable Susan Gurley McBee Opinion No. MW-166
Chairman, Committee on Elections
House of Representatives Re: Whether the Secretary of
Austin, Texas ‘70769 State may promulgate rules
permitting the consolidation of
election precincts without regard
to commissioners’ precinct
boundaries.
Deer Representative McBee:
You have requested our opinion as to whether the Secretary of State
may promulgate rules permitting the consolidation of election precinct-s
without regard to commissioners’ precinct boundaries. The Secretary of
State recently issued Rule 004.30.13.002, which states:
. . . In designating polling places, ‘a chairman may
consolidate 14 to all of the election precincts in the
county in any equitable manner and without regard to
commissioners’ precinct boundaries, except that e
chairman may not consolidate any precinct with any
one or more precincts unless the ballots are identical
in all precincts that are to be consolidated together.
You ask whether this rule conflicts with the proviso of article 2.02(g) of the
Election Code. That statute provides:
In any election for which the election precincts are
required to be those formed under the provisions of
Section 12 of this code [article 2.041, if in any county
there is no local office or proposition to be voted on
by the voters of only that county or a part of that
county, the authority holding the election may
combine any two or more regular election precincts
into consolidated precincts for such election in that
part of the county having no such local office or
proposition to be voted on if it appears that the
voters included within each consolidated precinct can
be adequately and conveniently served et one polling
p. 529
Honorable Susan Gurley McBee - Page Two (Mw-166)
place; provided, however, that there shall always be at least one
consolidated precmct wholly wrthm each commmsroners precinct of
the county.
(Emphasis added).
The Secretary of State is designated the chief election officer of the state, article
1.03, Election Code, and, as such, he “is authorized to promulgate . . . reasonable rules
which will minimize the costs of the primary elections.” Article 13.08(j), Election Code.
The Secretary of State contends that his authority to promulgate Rule 004.30.13.002
derives from article 13.08(h) of the Election Code:
The secretary of state is authorized to promulgate rules under
which compensation is limited to polling places at which voters of
more than one election precinct cast their votes, notwithstanding
the provisions of Section 10(g) (Article 2.02(g), Vernon’s Texas
Election Code). The rules for such common polling places shall
provide for adequate public notice by the county chairman to the
voters in election precincts effected by the application of such
rules and shall provide for an adequate number of polling places
taking into account all other relevant factors including distances of
oollina places from Darts of the arecincts served. estimated voter
&n-&t, and geographic or other boundaries.- However, the
secretary of state may not require that there be less than one
poling place for each commissioner’s precinct for reimbursement
purposes.
(Emphasis added). Under article 13.08(h) the Secretary of State’s authority is limited to
rules regarding compensation. That statute specifically prohibits him from promulgating
rules tying compensation to a requirement that there be fewer than one polling place per
commissioner’s precinct. We believe article 13.08(h) is designed to indicate that
notwithstanding the permissive authority granted by article 2.02(g) of the Election Code
to local authorities to determine the number of election precincts to be consolidated, the
Secretary of State is not required to provide reimbursement for more then four precincts
per county. In light of the specific language contained in the last sentence of article
13.08(h), it is our opinion that the Secretary of State is not authorized to promulgate rules
which permit consolidation of election precincts across commissioners’ precinct
boundaries.
SUMMARY
The Secretary of State is not empowered to promulgate rules
permitting the consolidation of election precincts without regard to
commissioners’ precinct boundaries,
P. 530
Honorable Susan Gurley McBee - Page Three (MN-166 1
.
S@ Attorney General of Texas
JOHN W. FAINTER; JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick GiIpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood
P- 531
Untitled Texas Attorney General Opinion
Combined Opinion