                          QBfficeof tiy LWmwp QBeneral
                                       &ate of UJexae
DAN MORALES
 ATTORNEYGENERAL
                                          June 29,1992




     Honorable George J. Filley, III                Opinion No. DM-134
     Criminal District Attorney
     P. 0. Box 488                                  Re: Whether Victoria County may
     Victoria, Texas 77902                          fund the office of election admini-
                                                    strator 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 ggvernmental function or service that each



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Honorable George J. Filley, III - Page 2      (DM-134)




party to the contract is authorized to perform individually.” Gov’t Code
9 791.011(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 Iocal 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 uliu 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 conskier the availability of the election services
contract fund in adopting the county budget for the” adminktrator’s office. Elec. Code
831.100(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 $9 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.




                                        p. 692
Honorable George J. Filley, III - Page 3    (DM-13 4 )




                                   SUMMA&X

              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

RENEAHIcK!s
Special Assistant Attorney General

MADELEJNE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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