Texas Advisory Opinions June 29, 1992: AGO DM-134 (June 29, 1992)

No. DM-0134 (1992).

Morales Opinion No. DM-134

Office of the Attorney General State of Texas

Dear Mr. Filley:

You state that the County of Victoria, Texas wishes to create the position of county elections administrator pursuant to the Election Code section 31.031. A discussion has ensued as to the funding of the administrator and the the office. Rather than have the county provide the funding on the front end and charge those Iegal entities requiring elections on an ad hoc basis, the county desires that all of the Iegal entities be obligated from the beginning for their proportionate share of the funding.

You ask whether Victoria County, Texas may enter into an agreement to fund the office of Victoria County Elections Administrator on a continuing basis, with political subdivisions utilizing the elections administrator's services pursuant to the Interlocal Cooperation Act.

The Interlocal Cooperation Act, Government Code chapter 791, generally authorizes counties and other local governmental entities to contract among themselves for the performance of "a governmental function or service that each party to the contract is authorized to perform individually." Gov't Code Sect. 791.011(c)(2). The creation and funding of the office of elections adminstrator and the contracting by that officer to provide services for other local governmental entities are, however, specifically provided for in chapter 31 of the Election Code, subchapters B and D respectively.

Where discrete statutes such as those in the Election Code referred to above, make detailed provisions for a county's entering into specified kinds of contracts with other local governmental entities, we do not believe that the general contracting authority provided for in the Interlocal Cooperation Act relieves the county from conforming to the statutes making detailed provisions with respect thereto. It is our Opinion, therefore, that contracts with other local governmental entities for election services to he provided by the elections administrator and the use of monies received therefrom must conform to the the-referenced parts of the Election Code, which specifically provides for such matters.

With respect to the use Of monies recieved from election services contracts to fund the election administrator's office, we note, for example, that Election Code section 31.100 requires inter alia that such amounts be deposited in seperate elections services contract fund, that only actual expenses attributable to such contracts may be paid from such fund, that surplus funds in the account must he expended in conformity with regulations adopted by the secretary of state, and that "the commissioners court my not consider the availibility of the election services contract fund in adopting the county budget for the" administrator's office. Elec. Code Sect.31.100(g) (emphasis is added).

Also notably sections 31.092 and 31.100 indicate that it would be the elections administrator and not the commissioners court, who, would enter into election services contracts, and who, subject to the above-mentioned restrictions, would determine the uses to which the funds derived therefrom would be applied. On the other hand the Election Code does appear to permit contracting for the performance of election services for more than one election. See id. Sections 31.092(a) (election of officer may contract with governing body of political subdivision to perform election services in any one or more elections"), 31.092(b) (election officer may contract with the county executive committee for "the party's general primary election or runoff primary election, or both). To that extent, contracts obligating the contracting entities for some period of time, rather than an "ad hoc" basis, would be permitted under the Election Code provisions .

Notwithstanding the general contracting authority afforded counties by the Interlocal Cooperation Act, the making of election services contracts and the use of proceeds therefrom to fund the office of county elections administrator must Conform to the chapter 31 Election Code provisions specifically applicable thereto.

Very truly yours,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant Attorney General

MARY KELLER

Deputy Assistant Attorney General

RENEA HlCKS

Special Assistant Attorney General

MADELEINE B. JOHNSON

Chair, Opinion Committee

Prepared by William Walker

Assistant Attorney General