Untitled Texas Attorney General Opinion

NE GENERAL EXAS Hon. Leonard King Opinion NO. V-1448 County Attorney Childreas-Coun*y Re: Authority o? the colris- Childretie, Texar sioners I oourt to order an election to determlne if an ad valorem tax should be levied for farm-to-market and lat- eral roads, to be held~ in conjunction with the party primary election in July, using the came .eleotion judges and Dear Sir: clerks. Reference le made to your request for the opinion of thlr offloe oonaernlng the author- ity of the 06rmnilrslonere1 court to order an elec- tion to determine if an gd vhlorem tax should be levied for farm-to-mark+t and lateral roads, to be held in q,onjunctlon with the party p~lmary elec- tion in July, wing the same election &d&err and clerka. The pertineqt part oi;Seotion 7 of Arti- cle 7048a, V.C.S., relative to calling and holding an eleotlon for the purpore of levying a tax for farwto-market end lateral road purposes provides: “Be$ore any oounty shall levy, amsea and oolleot the tax provided for herein the qubrtion rhall by the Oommlrrioners Oourt of the oounty be rubmltted to a vote of the quallfled property taxpaying voters of sugh county at an eleotlon oalled for that puppore, either on raid Oommlssloners Court’s own motlo , or upon petition of ten pecoent (lO$ of the qualified prop- erty taxph ng vo Por8 of rald oounty as shown by t r e returm of the last general election. Said election ohall be ordered at a regular resrlon of said Uomml~~lonera 7Tourt and such oraer #hall speolfy the - Hon. Leonard King, page 2 (V-1448) .., rate of tax to be voted on, not to exceed thirty cents. 30#) on each One Hundred Dollars ($;lOO valuation of taxable prop- erty within such-~county, shall state-the date when said election shall be held and shall appoint officers to hold said . election In accordance.with the election laws of thlti State.” (Emphasis added throughout, 1 Since this Is a special election and Is held In accordance with the eleo$lon lows, we must look to the Texas Election,Code (H.B. 6, Acts 52nd Leg. ,:‘R 3. 19513 ch: 492, 0.. 1097) I.t@ ,aetern@ne which provlsioiiia of the election laws are appllca- ble to this type of elect.lon. . Section 15 of the Election Code provides in part,:.,: “The Commissioners Court at the Febru- kry term shall appoint from among the citizens of each voting precinct In which there are less than one hundred (100) voters who have paid their poll tax or recel$ed their certi- ficates of exemption, two (2j reputable quals-’ . . fled voters as judges of the’electlon, select- ed from different @olltical parties, if prao- tloaDle, yho shall continue to act until are appointed. . . . One. shall, in all oases belong e party that at the 1aBt general eleo- tlon’oast the largest vote for dovernor throughout the State shall be designated as the presiding jud e at electlone; he shall appoint two (2 7 competent and reput- Section 16 of the Election Cod& provides in part: “For every reolnct net in whloh, there ” a&q ane hundred P100)~citlzens citizens or more who have @aid their poll tax or received their certificates of exemption, ,the Commlssion- ers Court shall appoint four (4) judges of eledtlon, who shall be chosen when prac- ticable from opposing political parties, . - Hon. Leonard King, page 3 (~-1448) one of whom shall be designated as presid- ing judge. . . . The presiding judge shall appoint four (4) competent and reputable clerks, and as many other clerks as may be authorized by the Commissioners Court, who have paid their poll tax, or have se- cured their exemptions,.and of different olltlcal parties, when practicable; . . . rovided, that in a11 elections herd under the provisions of this title, otherthan general elections’, local option elections and primary elections, the officer@ t0 be ppi-t-dby a one e hold said elections shall be a presiding judge, and assistant judge and two (21 1 k whose compensation shall &*i ($5) per day, and TWODol?zrziTg2) extra to the presiding judge for makim return of the election.” Section 22 of the Election Code provides: .. “The pay of judges and clerks of general and special elections shall be determined by the Commissioners Court of the county where such services are rendered, and In primary elections by the County Executive Committee of the party conducting such primary elec- tion but same shall not exceed Ten Dollars ($10~ a day for each judge or clerk, nor ex- ceed One Dollar ($1) per hour each for any ‘~tirne in excess of a day’s work as herein de- fined. The judge who delivers the returns of election Immediately after the votes have been counted shall be paid Two Dollars ($2) for that service; provided, also, he shall make returns of all election supplies not used when he makes returns of the elec- tion. Ten (10) working hours shall be con- sidered a day within the meaning of this Article. The compensation of judges and clerks of general and special elections shall be paid,by the County Treasurer of the county where such services dare randered upon order of the Commissioners.” Section 77 of the Election Code provides: “All expenses incurred in furnishing Hon. Leonard King, page 4 (v-1448) the supplies, ballots, and booths In any general or special election shall be p&d for by the county, except costs in munlci- i: pal and school elections. All accounts for supplies furnished and services’rendered shall first be approved by the Cbmmleeioners Court.before they are paid by the oounty.” The pertinent provisions of the I$leotlon .Code rkrtl~ve to ‘the ‘“primary electlon”l, rre’aq follows: Sec. 179 - “The teem ‘prlmarjr election, I: as used in this chapter, means an election held by the members of an organized political party for the purpose of nominating the Oandl- dates op such party to be voted for at a general or speo~lal election, or to nominate L the county executive officers of a party.” ‘Sec. 186 - “Prior to the assessment of the candidates, on the third Monday in June preceding each general primary, the oounty c,ommlttee shall also aarefully es- \ timate the cost of printing.the offlclal ballots, ‘renting polling plaoee where same may. be found necessary, providing and dis- : tributlng all neoeesary poll booka, blank stationery and voting booths required, compensation df election officers and ‘alerks and messengers, to report the result ih,auch precinbt to the county chairman, as provided for herein, and all other necessary expennes of holding such primarlee in suah’ counties and.shall apportion ‘such cost among the Various candidates for nomination for Hon. Leonard King, page 5 (v-1448) district, county and precinct offices only as herein defined, and offices to be filled by the voters of such district, county or precinct only, In such manner as in their judgment Is just and equitable; . . ." An analysis of the above statutes relative to "farm-to-market elections" and "primary eleatlons" reveals: 1. It Is mandatory that the commissioners' court appoint only four persons to hold the "farm-to- market election" in each election precinct, whereas the county chairman of the political party, with the assistance of a majority of the county executive com- mittee, appoints a presiding judge of each election precinct, and the presiding judge appoints an asso- ciate judge and clerk to assist him. However, an indeterminate n~umberof persons may be appointed to hold each precinct primary election if It is so de- termined by the county executive committee. 2. The four persons appointed to hold the "farm-to-market election" shall be chosen where prac- ticable from opposing polltltial parties; contrarily, however, the three persons or more appointed to hold the "primary election" are chosen from the same politi- cal party. : 3. The judges and clerks of each election precinct in the "farm-to-market election" are paid. by the county, but the judges and clerks of the "Primary election" are paid by the county chairman out of the funds derived through the assessments paid by the candidates of the party holding the, primary election. 4. All other expenses of holding the 'farm- to-market election" are peld for by the county, whereas similar expenses for holding the "primary election" are paid by the county chairman out of the funds collected from the candidates. This office passed on a similar question In Attorney General's Opinion O-2539 (l#O), from which we quote as follows: ‘I . . . However, we are of the opinion that Article 666-33, supra, is an express Hon. Leonard King, page 6, (v-1448) provision of the statutes requiring the commlssioners~ court to appoint offloers to hold local option electiona~,ae now re- quired to hold general elections, and In appointing 'or attempting to appoint the election officials designated to hold prl- mary elections would not be In compliance with the express provisions of the above mentioned statute. "In view of the foregoing> you are respectfully advised that It 1s the opln- ion of~thls department that the commls- sloners' court does not have the legal authority to appoint as judges of a local option election the same judge8 as those appointed by the County Democratic Commit- tee to hold the Democratic Primary Elec- tion. In the event the same election judges, etc. holding the primary election were to hold the local option election at the same time, there would be no saving of 'exp$nses, for the county must pay the expens- ' es of holding the local option election, and candidates, through the county chair- man, pay the expenses of the primary elec- tion and the county could not legally avoid the payment of the expenses of holding the local option election by attempting to have the election officials of the primary elec- tion to hold the local option election along with the primary election, the expense of .. such being paid bK the candidates In the sprimary eleotlon. In view of the foregolng, It Is ok ,opln- Ion that the oommle~l~nere-' oourt does ,not have”&u- . thorl to or@r tiat’tha eUet9on juBgee and olerks"=' oonduoh%lng 8 pa&y prlmmry:eleotlon al00 cWMUCt at the name time aceleotion to determine If a11 ad valorem tax should be levied for farm-to-mu4cet and lateral roada. Ron. Le.onard King, page, 7 (v-1448) A commi~%!loness', court do&.not have authority to &der tha.t the eleatloh'judges and clerks conducting a prlmary~~,~lection also conduct at the same time'8ti!electlon to determilie if an ad valorem ix& should be 'levied for farm-to-market and lateral, roads. Yours veby thly, APPROVED: PFU~BDANXEL Attorney Qeheral Mary K, Wall Reviewing Assistant Charles D. Mathews ,e.$uh),p11 First Ahlstant . C. Davis, Jr. Assistant JCD:mh :'