How can a Texas county pay for a county elections administrator's office?

Plain-English summary

A Victoria County prosecutor explained that the county wanted to create the position of county elections administrator under Election Code section 31.031 and was debating how to pay for the office. Instead of the county fronting the cost and then billing each entity that needed an election on an ad hoc basis, the county wanted every participating legal entity obligated from the start for its proportionate share. The question was whether the county could set up that ongoing funding arrangement under the Interlocal Cooperation Act.

The Attorney General answered that the funding had to follow the specific Election Code rules, not the general Interlocal Cooperation Act. The Interlocal Cooperation Act (Government Code chapter 791) generally lets counties and other local entities contract among themselves to perform a governmental function or service that each party could perform on its own. But the creation and funding of the elections administrator's office, and that officer's contracting to provide election services to other local entities, are addressed specifically in chapter 31 of the Election Code (subchapters B and D). When discrete statutes make detailed provisions for the kind of contract at issue, the general contracting authority of the Interlocal Cooperation Act does not excuse the county from conforming to those specific statutes. So the election services contracts and the use of the money from them had to comply with chapter 31.

The opinion pointed to the Election Code's handling of the money. Section 31.100 requires that amounts received under election services contracts be deposited in a separate election services contract fund, that only actual expenses attributable to those contracts be paid from the fund, that any surplus be spent in line with the secretary of state's regulations, and that the commissioners court "may not consider the availability of the election services contract fund in adopting the county budget for the" administrator's office. Sections 31.092 and 31.100 also show that it is the elections administrator, not the commissioners court, who enters the election services contracts and, subject to those restrictions, decides how the resulting funds are used. The opinion noted that the Election Code does permit contracting for election services covering more than one election: under section 31.092(a) an election officer may contract to perform services "in any one or more elections," and under section 31.092(b) the officer may contract with a county executive committee for a party's general primary, runoff primary, or both. To that extent, the county could enter contracts obligating the participating entities for a period of time rather than on an ad hoc basis, as long as it stayed within the Election Code's framework.

Currency note

This opinion was issued in 1992. 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. The Election Code and Government Code provisions cited here may have been amended since 1992, so confirm the current statutes before relying on any rule or procedure described.

Background and statutory framework

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 § 791.011(c)(2). The creation and funding of the office of elections administrator, and that officer's contracting to provide election services for other local entities, are specifically provided for in chapter 31 of the Election Code, subchapters B and D.

The opinion reasoned that where discrete statutes make detailed provisions for a county's entering into specified kinds of contracts with other local entities, the general contracting authority in the Interlocal Cooperation Act does not relieve the county from conforming to those specific statutes. So contracts for election services provided by the elections administrator, and the use of the money received from them, had to conform to the Election Code provisions specifically addressing those matters.

On the handling of the funds, Election Code section 31.100 requires, among other things, that amounts received be deposited in a separate election services contract fund, that only actual expenses attributable to such contracts be paid from the fund, that surplus funds be expended in conformity with regulations adopted by the secretary of state, and that "the commissioners court may not consider the availability of the election services contract fund in adopting the county budget for the" administrator's office. Elec. Code § 31.100(g). Sections 31.092 and 31.100 also indicate that it is the elections administrator, not the commissioners court, who enters election services contracts and who, subject to those restrictions, determines the uses of the funds derived from them. The Election Code does appear to permit contracting for election services for more than one election: section 31.092(a) (election officer may contract with a political subdivision's governing body to perform election services "in any one or more elections") and section 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 a period of time, rather than on an ad hoc basis, would be permitted under the Election Code provisions.

Common questions

Can a county fund an elections administrator through the Interlocal Cooperation Act?
Not on the general terms of that Act alone, under this opinion. The Attorney General concluded that because chapter 31 of the Election Code specifically governs creating and funding the office and the administrator's election services contracts, those specific rules control over the general Interlocal Cooperation Act.

Who actually signs the election services contracts?
The opinion read sections 31.092 and 31.100 to make the elections administrator, not the commissioners court, the contracting party who, subject to the statutory restrictions, decides how the contract funds are used.

Where does the contract money go?
Into a separate election services contract fund under section 31.100. Only actual expenses attributable to the contracts may be paid from it, surplus follows secretary of state regulations, and the commissioners court may not count the fund when adopting the office's budget.

Can the county lock entities in for more than one election?
Yes, within the Election Code. The opinion noted section 31.092 allows contracts for "any one or more elections" and for a party's primary or runoff, so the county could obligate participating entities for a period rather than ad hoc, as long as it follows chapter 31.

Citations

• Elec. Code § 31.031
• Elec. Code § 31.092(a), (b)
• Elec. Code § 31.100(g)
• Gov't Code § 791.011(c)(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0134
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0134.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 29, 1992

Honorable George J. Filley, III
Criminal District Attorney
P. O. Box 488
Victoria, Texas 77902

Opinion No. DM-134

Re: Whether Victoria County may fund the office of election administrator by contracting with political subdivisions that will utilize that officer's services, pursuant to the Interlocal Cooperation Act (RQ-299)

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 office. Rather than have the county provide the funding on the front end and charge those legal entities requiring elections on an ad hoc basis, the county desires that all of the legal 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 § 791.011(c)(2). The creation and funding of the office of elections administrator and the contracting by that officer to provide election 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 be provided by the elections administrator and the use of monies received therefrom must conform to the above-referenced parts of the Election Code, which specifically provide for such matters.

With respect to the use of monies received 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 a separate 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 be expended in conformity with regulations adopted by the secretary of state, and that "the commissioners court may not consider the availability of the election services contract fund in adopting the county budget for the" administrator's office. Elec. Code § 31.100(g) (emphasis 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. §§ 31.092(a) (election 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 on an "ad hoc" basis, would be permitted under the Election Code provisions.

                               SUMMARY

      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.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General