                       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




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