Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
December 20,200l
The Honorable Tully Shahan Opinion No. JC-0444
Kinney County Attorney
P.O. Box 365 Re: Whether Kinney County is authorized to pay
Brackettville, Texas 78832-0365 for the confirmation election for the Kinney
County Groundwater Conservation District
(RQ-0456-JC)
Dear Mr. Shahan:
You ask whether Kinney County (the “County”) is authorized to pay for the confirmation
election for the Kinney County Groundwater Conservation District (the “District”).’ You are
particularly concerned that such an expenditure might violate article III, section 52 and article V,
section 18 of the Texas Constitution. Because the statute authorizing the creation of the District and
other statutes contemplate that the County will conduct the election for the District by contract for
monetary consideration, we conclude that the County lacks statutory authority to pay for the
confirmation election and do not reach the constitutional issues raised by your request.
You explain that during the last legislative session, the legislature enacted House Bill 3243
creating the District under article XVI, section 59 of the Texas Constitution. See Act of May 25,
2001, 77th Leg., R.S., ch. 1344, 2001 Tex. Sess. Law Serv. 3155. This bill provides for the
appointment by the Kinney County Commissioners Court of a board of temporary directors who will
serve “until initial directors are elected under Section 9 of this Act.” Id. 8 6, at 3 156. You inform
us that the temporary directors of the District have met and set the confirmation election for January
12,2002. See Request Letter, supra note 1, at 1. The District has “asked for a donation from Kinney
County to help fund the election.” Brief attached to Request Letter, supra note 1, at 1. You ask
whether the County may pay for the election “if the Commissioners Court found the expenditure to
be for a public purpose” under article III, section 52 of the Texas Constitution. Id. You also ask if
such an expenditure would be consistent with article V, section 18, which limits the authority of a
commissioners court to “county business.” Id. at 3-4.
‘Letter and Brief from Honorable Tully Shahan, Kinney County Attorney, to Susan D. Gusky, Chair, Opinion
Committee (Oct. 24, 2001) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Tully Shahan - Page 2 (JC-0444)
A county commissioners court may exercise only those powers that the state constitution and
statutes confer upon it. See Tex. Att’y Gen. Op. No. JC-0171 (2000). Particularly with respect to
contracts, courts have held that the authority of a commissioners court to make contracts on behalf
of the county is limited to that conferred either expressly or by necessary implication by the
constitution and laws of the state. See, e.g., Childress County v. State, 92 S.W.2d 1011, 1016 (Tex.
1936); Jack v. State, 694 S.W.2d 391,397 (Tex. App.-San Antonio 1985, writ ref d n.r.e.). Before
determining whether a particular county act runs afoul of constitutional limitations on county
authority in provisions such as article III, section 52 or article V, section 18, we must first determine
whether the legislature has authorized the County to pay for the District’s confirmation election. We
conclude that the legislature has vested the duty to contract and pay for election services in the
District itself and that the legislature has not authorized the County to undertake this expense.
The District is governed both by House Bill 3243 and chapter 36 of the Water Code, the
general law provision governing groundwater conservation districts. See Act of May 25,2001,77th
Leg., R.S., ch. 1344, 9 5, 2001 Tex. Sess. Law Serv. 3 155, 3 156. Section 9 of House Bill 3243
provides that the temporary board of directors “shall call and hold an election to confirm
establishment of the district and to elect initial directors.” Id. 8 9(a), at 3157. The election is
governed by both House Bill 3243 and section 36.017 of the Water Code. See id. 5 9(e). House Bill
3243 expressly directs that the county clerk will conduct the election pursuant to contract: “The
district shall contract with the county clerk of Kinney County to conduct the confirmation and initial
directors’ election and future elections of the district.” Id. 8 9(b).
Provisions of the Election Code govern contracts for election services, such as the contract
contemplated by House Bill 3243. See TEX. ELEC. CODE ANN. ch. 3 1, subch. D (contracts for
election services) (Vernon 1986 & Supp. 2001). The Election Code provides that a county election
officer, such as a county clerk, who conducts an election for another entity will be paid by the
contracting authority for the county’s services. See id. 9 3 1.093(a) (“If requested to do so by a
political subdivision or political party, the county elections administrator shall enter into a contract
to furnish the election services requested, in accordance with a cost schedule agreed on by the
contracting parties.“) (Vernon 1986) (emphasis added).
We also note that chapter 36 of the Water Code authorizes a groundwater conservation
district to pay costs incurred in its creation and organization and to reimburse any person who has
advanced money for these purposes. See TEX.WATER CODE ANN. 5 36.157 (Vernon 2000); see also
id. 5 36.017(h) (ex p ressly providing that a district that is not confirmed by the voters “shall have no
further authority, except that any debts incurred shall be paid and the organization of the district shall
be maintained until all the debts are paid”). Thus, the Water Code contemplates that a groundwater
conservation district will pay for its organizational expenses.
In addition, section 1.014(a) of the Election Code provides that “[elxcept as otherwise
authorized by law, the expenses incurred in the conduct of a general or special election shall be paid
by the political subdivision served by the authority ordering the election.” TEX.ELEC.CODE ANN.
5 1.014(a) (V emon 1986); see also id. 8 1.005(18) (defining “special election”) (Vernon 2001). In
this case, the District’s board of temporary directors is the authority ordering the confirmation
The Honorable Tully Shahan - Page 3 (JC-0444)
election. See Act of May 25’2001’77th Leg., R.S., ch. 1344, 8 9(a), Tex. Sess. Law Serv. 3 155,
3 157. The board serves the District. The legislature has not “otherwise authorized by law” some
entity other than the District to pay for the election. See TEX.ELEC. CODE ANN. 0 1.014(a) (Vernon
1986). Accordingly, the District must pay for the election; the County lacks the authority to do so.
In sum, the legislature has provided in House Bill 3243, the Water Code, and the Election
Code that the District will contract with the County for election services and pay for election
expenses and, moreover, that the County will provide these services by contract for monetary
consideration. Given this express statutory scheme, Kinney County lacks express or implied
statutory authority to pay for the confirmation election for the Kinney County Groundwater
Conservation District. The County may not make a donation or grant to the District for that purpose.
The Honorable Tully Shahan - Page 4 (JC-0444)
SUMMARY
Kinney County is not authorized to pay for the confirmation
election for the Kinney County Groundwater Conservation District
and may not make a donation or grant to the District for that purpose.
JOHN CORNY<
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Comrnittee
Mary R. Crouter
Assistant Attorney General, Opinion Committee