                                ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                     May 29, 2012



The Honorable Jaime E. Tijerina                            Opinion No. GA-0939
Kenedy County Attorney
Post Office Box 202                                        Re: Whether a commissioners court may employ a
Sarita, Texas 78385                                        county elections administrator to perform the duties
                                                           of a 9-1-1 addressing agent and to assist in the
                                                           preparation of redistricting maps (RQ-I023-GA)

Dear Mr. Tijerina:

       You ask whether a commissioners court may employ a county elections administrator to
perform the duties of a 9-1-1 addressing agent and to assist in the preparation of redistricting
maps.l

        A commissioners court "by written order may create the position of a county elections
administrator for the county." TEX. ELEC. CODE ANN. § 31.03I(a) (West 2010). You indicate that
the Kenedy County Commissioners Court created the position of elections administrator on
September 6, 2006. Request Letter at 2. Subsequently, the position of elections administrator was
filled, pursuant to statute, by the county election commission. Jd.; see TEX. ELEC. CODE ANN.
§ 31.032(a) (West 2010).2 The duties of the elections administrator are prescribed by statute:

                   The county elections administrator shall perform:

                            (1) the duties and functions of the voter registrar;

                           (2) the duties and functions placed on the county clerk by
                   [the Elections] code;



         ILetter from Honorable Jaime E. Tijerina, Kenedy Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen.
(Nov. 9, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter") (attached letter from Honorable Louis E.
Turcotte, III, Kenedy County Judge) (on file with Op. Comm.).

          2The county election commission consists of: "(1) the county judge, as chair; (2) the county clerk, as vice-chair;
(3) the county tax assessor-collector, as secretary; and (4) the county chair of each political party that made nominations
by primary election for the last general election for state and county officers preceding the date of the meeting at which
the appointment is made." TEX. ELEC. CODE ANN. § 31.032 (West 2010).
The Honorable Jaime E. Tijerina - Page 2                   (GA-0939)




                          (3) the duties and functions relating to elections that are
                   placed on the county clerk by statutes outside this code, subject to
                   Section 31.044;3 and

                          (4) the duties and functions placed on the administrator
                   under Sections 31.044 and 31.045. 4

TEX. ELEC. CODE ANN. § 31.043 (West 2010) (footnotes added). You indicate that the
commissioners court "has expressed a desire to hire" the elections administrator to perform the
duties of the 9-1-1 addressing agent and inquire whether the elections administrator may be assigned
those duties as well as duties involving the preparation of redistricting maps.5 Request Letter at 2.

        You first express concern about the possible incompatibility between the positions of county
elections administrator and the assumption of the additional duties you describe. ld. at 3. In 1997,
an appellate court held that a county elections administrator does not hold a public office. See Krier
v. Navarro, 952 S.W.2d 25, 30 (Tex. App.-San Antonio 1997, pet. denied). When the potential
incompatibility of the positions is analyzed, it is well established that both positions must be
"offices" in order for the "conflicting loyalties" aspect of common-law incompatibility to be
applicable. See, e.g., Tex. Att'y Gen. Op. No. GA-0273 (2004) at 3. 6 Because neither the elections
administrator nor the 9-1-1 addressing agent holds an "office," common-law incompatibility does
not preclude one person from performing both sets of duties. Furthermore, no constitutional or
statutory provision would appear to restrict a single individual from holding the two positions of
elections administrator and 9-1-1 addressing agent.?



          3Section 31.044 describes the division of duties between the county clerk and the county elections administrator.
See id. § 31.044.

          4Section 31.045 directs the Secretary of State to "adopt rules consistent with Sections 31.043 and 31.044 that
classify the duties and functions placed on the county clerk by statutes outside [the Election] code according to whether
they are to be performed by the county elections administrator or by the county clerk. See id. § 31.045.

         SThe position of "9-1-1 addressing coordinator" is provided for in the model agreement created by the
Commission on State Emergency Communications for the use of regional planning commissions and Texas political
subdivisions. See generaLLy TEX. HEALTH & SAFETY CODE ANN. ch. 771 (West 2010 & Supp. 2011).

          (,There are three aspects of the common-law doctrine of incompatibility: self-appointment; self-employment;
and conflicting loyalties. The "conflicting loyalties" aspect was first addressed in Thomas v. Abernathy County Line
Independent School District, in which the court held that the offices of school trustee and city alderman are incompatible.
Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); see
also Tex. Att'y Gen. Op. No. GA-0350 (2005) at 4 (citing Thomas for the proposition that both positions must be offices
for conflicting loyalties incompatibility to apply).

          7Section 31.035 of the Election Code imposes restrictions on the political activities of a county elections
administrator. For example, he may not be a candidate for public office or an office of a political party, hold a public
office, or hold an office or position in a political party. TEX. ELEc. CODE ANN. § 31.035(a) (West 2010).
The Honorable Jaime E. Tijerina - Page 3        (GA-0939)




         As we have noted, the duties of a county elections administrator are prescribed by statute.
Under the generally recognized rules of construction, those duties appear to be exclusive. See Lab.
Corp. of Am. v. Compton, 126 S.W.3d 196, 198 (Tex. App.-San Antonio 2003, pet. denied) ("the
express mention of one person, thing, consequence or class is tantamount to the express exclusion
of all others"). Thus, while the duties of a 9-1-1 addressing agent may not be assigned to the county
elections administrator, we are aware of no provision of Texas law that would prohibit a county from
hiring one individual for the two separate positions. A letter from the County Judge of Kenedy
County indicates that the individual in question "is willing to start and end his work day prior to
8:00 a.m. and continue after 5:00 p.m. if necessary," in order to perform the duties of 9-1-1
addressing and map preparation. See Request Letter (attachment from County Judge). In such
instance, a commissioners court may separately employ the individual serving as elections
administrator to perform the duties of a 9-1-1 addressing agent. Furthermore, the "commissioners
court shall set the amount of compensation ... for county and precinct officers and employees who
are paid wholly from county funds." TEX. Loc. GOV'T CODE ANN. § 152.011 (West 2008).

        We conclude that a commissioners court may employ the individual serving as county
elections administrator to perform the duties of a 9-1-1 addressing agent and to assist in the
preparation of redistricting maps. Because your question about the working hours during which the
elections administrator may perform those duties is a matter for local determination, we do not
address it.
The Honorable Jaime E. Tijerina - Page 4        (GA-0939)



                                      SUMMARY

                     A commissioners court may employ the individual serving as
              county elections administrator to perform the duties of a 9-1-1
              addressing agent and to assist in the preparation of redistricting maps.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
