                                                     April 28, 1999



The Honorable Elton Bomer                                       Opinion No. JC-0038
Secretary of State of Texas
P.O. Box 12697                                                  Re: Authority of the Secretary of State to adopt
Austin, Texas 7871 l-2697                                       rules restricting use of state t%nds for voter
                                                                registration under chapter 19 of the Election
                                                                Code (RQ-524)

Dear Secretary Bomer:

         Your predecessor asked whether the Secretruy of State may adopt rules that prohibit the                         use
of state funds available under chapter 19 of the Election Code to pay for costs associated with                          the
normal operations of the voter registrar’s office. We believe that the Secretary of State has                            the
authority to adopt and has appropriately exercised that authority by adopting rules prohibiting                          use
of chapter 19 funds for the normal operations of the voter registrar’s office.

         Chapter 19 of the Election Code provides that each county voter registrar is entitled to
twenty-five cents from state funds for each new registration; forty cents for each canceled and
updated registration; and, in each even-numbered year, forty cents multiplied by the difference
between the number of registered voters and the number of initial registrations certified for the two
previous voting years. TEX. ELEC. CODE. ANN. 5 19.002(a) (Vernon Supp. 1999). After June 1 of
each year, the Comptroller of Public Accounts is to issue to each registrar a warrant in an amount
that does not exceed the amount the registrar is entitled to under the above provisions ifthe registrar
submits a voucher that is approved by the Secretary of State. Id. 5 19.002(b). The Secretary of State
is directed to prescribe the “procedures necessary to implement this subsection [relating to the
issuance of the warrants].” Id. Additionally, the Comptroller of Public Accounts may not issue a
warrant if she receives notice from the Secretary of State that the registrar is not in substantial
compliance with the reporting requirements of the registration service program. Id. 19.002(d).’



          ‘Section 19.002(d) and section 18.064provide that the ComptmllerofPublic          Accountsmaynot     issue a warrant
for chapter 19 funds if she is notified by the Secretary of State that the registrar is not in “substantial compliance” with
sections 14.025, 16.032, 18.042, OI 18.063 01 with the rules implementing the registration service program. Section
16.032 requires the registrar to cancel a voter’s registration in certain circumstances;       section 18.042 requires filing
before the biannual primary and general elections a statement of the number of registered voters; and section 18.063
requires that the registrar file with the Secretary of State information as to new, changed, and canceled registrations.
Section 14.025, which required tiling biannually information as to renewal voter registration certificates mailed but
retimed to the registrar because the voter was no longer at the mailing address of record, was repealed in 1995. See
Act ofMay 27, 1995,74th Leg., R.S., ch. 797,s 44, 1995 Tex. Gen. Laws4153,4168.
The Honorable     Elton Bomer       - Page 2               (X-0038)




          Section 19.004 provides that “[sltate funds disbursed under this chapter may be used only
to delay expenses of the registrar’s office in connection with voter registration, including additional
expenses related to implementation       of the National Voter Registration Act of 1993 (42 U.S.C.
Section 1973gg et seq.).“* Id. $ 19.004. That section also directs the Secretary of State to “specify
the procedures that result in additional expenses and that are required to implement that federal law.”
Id. Significantly, section 19.006 provides that “[tlhe commissioners court may not consider the
availability of state fkds under this chapter in adopting the county budget for the office ofthe voter
registrar.” Id. 5 19.006 (Vernon 1986).

          The rules at issue provide in pertinent part that “[clhapter 19 funds may be used to pay for
any item or service designed to increase the number of registered voters in the state, maintain and
report an accurate list of the number of registered voters, and/or increase the effkiency of the voter
registration office[,]” and, conversely, that the funds “may not be used to fund the normal day-to-day
operation of the voter registrar’s office.” 1 TEX. ADMIN. CODE 55 81.13, .14 (West 1998); see also
id. $5 81.12 (county must provide for normal operations and chapter 19 funds shall be expended
exclusively for voter registration items); 81.28 (expenses related to implementation         of federal
National Voter Registration Act). The normal day-to-day operation, the rules provide, must be
funded by “the Commissioners         Court when adopting the budget for voter registration in their
county.” Id. 5 81.14. “Normal day-to-day operations” means “any duty required to be performed
by counties under the Texas Election Code.” Id. Examples of the statutory duties include without
limitation “the physical acceptance and processing of voter registration certificates and renewals
under Chapter 13 [of the Election Code], notices and corrections made under Chapter 15 and
Chapter 16 and the processing and cost of supplying voters lists under $ 18.001 [of the Election
Code].” Id.

         In evaluating the Secretary of State’s authority to promulgate these rules, we consider two
factors: (1) whether the Secretary of State has express or implied authority by statute to adopt such
rules; and (2) whether he has exceeded that authority in adopting the specific rules. See Railroad
Comm’n v. Lone Srur Gns Co., 844 S.W.2d 679, 685 (Tex. 1992) (agency can adopt only rules
authorized by and consistent with its statutory authority).

        First, we address the Secretary of State’s authority to adopt           administrative rules with respect
to chapter 19 funds. An agency may only adopt rules as authorized                 by its statutory authority. Lone
Star, 844 S.W.2d at 685. Its authority to promulgate rules may                  be expressly conferred on it by
statute or implied from other powers and duties given or imposed                by statute. Id. We note that the
Secretary of State does not have express general authority to adopt              rules. Nor does he have express


          ‘The National Voter Registration Act of 1993, 42 U.S.C.A. $5 1973gg-1973gg-10(West 1998). generally
requires that government offices provide registrationmaterials,and specificallyprovides for updating addresses for voter
registration purposes in accordance with driver’s license information updates. The law also prevents cancellation for
two general elections of registrations due to voter failing to update address information. The 1995 Texas legislation,
which amended section 19.004of the Election Code with reference to the new federal law, also made extensive changes
to ofher provisions of the Election Code to bring state law into compliance with the new federal requirements. See Act
of May 27, 1995,74th Leg., R.S., ch. 797.5 32, 1995 Tex. Gen. Laws 4153.4162.
The Honorable   Elton Bomer    - Page 3           (~~-0038)




authority to adopt rules relating to the expenditure of the chapter 19 state funds. But he does have
authority horn which such rule-making authority specifically relating to chapter 19 funds may be
inferred.

         The Secretary of State is the chief election officer of the state. TEX. ELEC. CODE ANN.
5 31 .OOl (Vernon 1986). He is given broad powers to “obtain and maintain uniformity in the
application, operation, and interpretation of [the Election] code” and in performing this duty to
“prepare detailed and comprehensive written directives and instructions relating to and based on this
code.” Id. 5 31.003. More specifically, he is directed to oversee chapter 19 state funds, see id.
5 19.002(b), (d) (Vernon Supp. 1999), and to prescribe procedures to implement the disbursement
of such funds, id. $9 19.002(b), (d), ,004. Given the Secretary of State’s express powers to interpret
the election laws generally and to oversee chapter 19 state funds specifically, we conclude that he
has the implied authority to adopt administrative rules with respect to the state funds. See GulfLand
Co. v. Atlantic Refining Co., 13 1 S.W.2d 73,82 (Tex. 1939) (implying Railroad Commission’s rule-
making authority from its authority to execute and enforce oil and gas conservation statutes). We
emphasize that our opinion as to the Secretary of State’s implied rule-making authority is limited
to the subject of this request, namely, chapter 19 funds.

         Next, we address whether the Secretary of State exceeded his rule-making authority in
promulgating rules specifically prohibiting use of chapter 19 funds for the normal operations of the
voter registrar’s office. An agency may only adopt rules as are consistent with its statutory authority.
Lone Star, 844 S.W.2d at 685. In deciding whether an administrative agency has exceeded its
statutory authority, the determinative factor is whether the rule’s provisions are in harmony with the
general objectives of the particular statute. Id. It is the opinion of this office that the rules are
consistent with the Secretary of State’s authority under chapter 19.

         Section 19.004 provides that state funds disbursed to county registrars may only be used “to
defray expenses of the registrar’s office in connection with voter registration.” TEX. ELEC. CODE
ANN. $ 19.004. This provision by its terms does not prohibit the use of such funds to pay for
expenses associated with the normal operations of the registrar’s offrce. However, section 19.004
cannot be viewed in isolation but must be considered in conjunction with other provisions of chapter
19 to determine the legislature’s intent. See Union Bunkers Ins. Co. Y. Shelton, 889 S.W.2d 278,280
(Tex. 1994) (primary consideration in construing statute is to effect legislature’s intent); Burr v.
Bernhard, 562 S.W.2d 844, 849 (Tex. 1978) (court must look to entire act, not just one provision,
to determine legislative intent; one provision cannot be given meaning out of harmony or
inconsistent with other provisions even though susceptible of such construction standing alone).
Section 19.006 prohibits the commissioners court from considering the state funds in adopting the
county budget for the voter registrar’s office. Section 19.002(b) directs that the state funds be paid
directly to the voter registrar’s offtce rather than to the county treasury. As explained below, the
enactment of these provisions as part of the substantive recodification of the Election Code in 1985
indicates that the legislature intended to limit the purposes for which chapter 19 funds could be used.
See TEX. GOV’T CODE ANN. 5 311.023(2), (4) (in construing statute, may consider circumstances
under which statute or former statutory provision enacted).
The Honorable      Elton Bomer        - Page 4                 (X-0038)




         Before 1985, the state funds could be used for any reasonable expenses of the registrar’s
office associated with voter registration. The legislature adopted the predecessor provisions of the
current voter registration system in 1966, following the United States Supreme Court’s declaration
in Harper Y. Virginia State Board of Elections, 383 U.S. 663 (1966), that the poll tax was
unconstitutional.    Under article 5.19b of the former Election Code, the Comptroller of Public
Accounts issued annual warrants to each county in the amount of twenty-five cents for each voter
registered, and the proceeds of the warrants were to be “deposited in the county treasury for general
revenue purposes.“’ In 1971, the legislature increased the warrant amounts and directed that the
proceeds be deposited in a “special fund” in the county treasury “to be used for defraying the
expenses of the [voter] registrar’s office in the registration of voters,” and Ikrther directed that none
of the monies were to be retained as “fees of office” by registrars in counties where officials were
compensated on a fee basis.4 In 1977, the legislature amended former article 5.09a to provide that
“[tlhe expenses of the registrar in excess ofthe reimbursements received i?om the state under [article
5.19b] shall be borne by the c~unty.“~ In short, the state funds were provided to the counties to
replace the poll tax and to partially reimburse the counties for the expenses of the voter registrar’s
office that they would have otherwise been required to fund. Accordingly, in 1983, Attorney
General Opinion JM-61 construed the provisions then in effect to permit the use of the funds to
defray any reasonable expenses incurred by the registrar’s office in the registration process.

         But the substantive revisions made to these provisions in 1985 as part of the substantive
recodification of the Election Code evidence a legislative intent to depart from the way state funds
for voter registration had been handled under the prior law.6 Most notably, the provision codified
as section 19.006, and headed “State Funds Not Part of County Budget,” directs that “[tlhe
commissioners court may not consider the availability of state funds under this chapter in adopting
the county budget for the office of the voter registrar.” TEX. ELEC. CODE ANN. 5 19.006 (Vernon
 1986). We read this provision as indicating a legislative understanding that the funding of the
registrar’s office in amounts sufficient to enable that office to performits minimal statutory duties
is the responsibility of the county, see, e.g., Tex. Att’y Gen. Op. No. JM-770 (1987) at 3 (citing
authorities for proposition that commissioners court must fund reasonable expenses of county
offices), and a legislative intent that chapter 19 funds not be used for such basic expenses. See
Amen’can Surety Co. ofNew Yorkv. Axtell, 36 S.W.2d 715,719 (Tex. 1931) (legislature presumed


          ‘See Act of Feb. 22,1966,59th    Leg., 1st C.S., ch. 1, sec. 2.5 5 lb, 1966 Tex. Gen. Laws 1,9, amended   by Act
ofMay31,1971,62dLeg.,RS.,ch.           827,s 13,197l Tex.Gen.Laws2509,2522,ondActofMay23,1975,64thLeg.,
R.S.,ch.296,~13,1975Tex.Gen.Laws750,761,repealedbyActofMay13,1985,69thLeg.,R.S.,ch.211,~9,1985
Tex. Gen. Laws 802, 1076.

         ‘Act ofMay    31, 1971,62d    Leg., RX,   ch. 827.5    13, 1971 Tex. Gen. Laws 2509,2522.

         ‘Act of May 28, 1977,65th     Leg., RX, ch. 609,s       1, 1977 Tex. Gen. Laws 1497, 1498.

          Wnlike many of the codes adopted in the COUIX of the state’s ongoing program of statutory revision, the
Election Code of 1985 made numerous substantive changes to prior law. See Act of May 13,1985,69th        Leg., RX, ch.
2 11, $ 1, 1985 Tex. Gen. Laws 802. The provisions regarding state timding for voter registration, found principally in
article 5.19b of the former code, were located in Election Code chapter 19. See id. at 835-36.
The Honorable     Elton Bomer       - Page 5               (JC-0038)




to have intended some change to existing law when amendment                      was enacted and effect must be
given to amendment).

         Consistent with this interpretation, the provisions of former article 5.09a-that the expenses
of the registrar’s office in excess ofthe reimbursements received from the state shall be borne by the
county-did       not reappear in the 1985 Election Code. The scheme suggested by these former
provisions, that state fimds would be used to finance, or “reimburse” the county for, the same
expenses of the registrar’s office that county funding would otherwise be required to meet, finds no
support in the current provisions. Also, the current provisions direct that the warrants issued by the
Comptroller of Public Accounts be paid directly to the voter registrar’s office. This is a change from
the prior law, which directed that the state funds be paid to the county treasury, and a further
indication that the chapter 19 funds are not intended to be for the same purposes as county funds
appropriated to the registrar’s office from the county treasury. TEX. ELEC. CODE ANN. 5 19.002(b)
(Vernon Supp. 1999).

         Our interpretation that after the 1985 amendments to chapter 19 state funds may not be used
to pay for the basic operations of the voter registrar’s office is supported by the Secretary of State’s
long-standing construction of these amendments. Under the law in effect before the adoption of the
current Election Code in 1985, the Office of the Secretary of State had opined, as had this office in
Attorney General Opinion JM-61, that state funds disbursed to counties for voter registration could
“be used for any activity related to voter registration.” Secretary of State Election Law Opinion
JWF-7 (1983) at 2. However, since the adoption of the new Election Code in 1985 containing the
provisions discussed above, all secretaries of state have consistently taken the position that basic
operation expenses of the voter registrar’s office must be paid from the county budget, and that
chapter 19 state “funds are to be used to enhance the voter registration functions of the voter
registrar’s office.“’ In 1991, the Secretary of State adopted detailed rules to such effect. See 16 Tex.
Reg. 2825 (1991) (adopting 1 TEX. ADMIN. CODE 3 81.11) (proposed July 20,1988) (Secretary of
 State’s Office). These rules were amended, effective October 1, 1995. See 20 Tex. Reg. 7277
(1995) (repealing former 1 TEX. ADMIN. CODE 5 81.11 and adopting new 1 TEX. ADMIN. CODE
 @ 81.1 l-.29). The amended rules continue to embody that position. See 1 TEX. ADMIN. CODE $5
 81.12-.14. The Secretary of State’s long-standing interpretation that chapter 19 funds may not be
used to pay for the basic operations of the voter registrar’s office is entitled to serious consideration
 given that it is consistent with the legislative intent to limit the use of the state funds as evidenced
 by the post-1985 amendments to chapter 19. See Texas Water Comm ‘n v. Brushy CreekMun. Utd.



           ‘Directive Regarding Voter RegistrationFinancing    Under Chapter I9 ofthe Texas ElectionCode 7 (Tex. Office
ofthe Secretary of State Sept. 29, 1989), id. at 1 (emphasis removed) (also directing that state funds not to be used to
fund day-to-day operations of registrar’s oft&); accordDirective, Disbursement of Funds Under Chapter 19, Texas
Election Code 1 (Tex. Off& of the Secretary of State June 28, 1988). The directives go on to distinguish between
particular expendihwzs payable with state funds-for      example, costs associated with temporary, part-time, and seasonal
contract personnel;      certain travel expenses; certain outlays for equipment-and        those which are the county’s
responsibility-that      is, costs of performing  the office’s statutorily required voter registration duties.    See also
Memorandum,         Addendum to June 28, 1988 Directive Regarding Disbursement         of Funds Under Chapter 19, Texas
Election Code (Tex. Office of the Secretary of State July 8, 1988) (superseding “travel” portion of earlier directive).
The Honorable     Elton Bomer       - Page 6              (x-0038)




Dist., 917 S.W.2d 19,21 (Tex. 1996) (construction of statute by agency charged with its execution
entitled to serious consideration unless clearly inconsistent with legislative intent).

          Finally, in regard to the Secretary of State’s interpretation that state funds may not be used
for basic operations of the registrar’s office, we observe that the legislature specifically revisited
chapter 19 in 1989, 1993,1995, and 1997,‘but did not amend the statute to provide otherwise. As
indicated above, the Secretary of State’s construction has remained the same since 1985. We note
that the duration of the construction here is not as long as in the cases in which the Texas courts have
applied the doctrine of legislative acquiescence. See Humble Oil & Refining Co. v. Culvert, 414
S.W.2d 172,180 (Tex. 1967) (administrative construction in place for forty-six years of such long-
standing that it should not be changed without clear legislative direction); Fleming Foods of Texas,
Inc. v. Sharp, 95 1 S.W.2d 278,28 1 (Tex. App.-Austin 1997, pet. granted) (legislature’s decision not
to change law regarding refund claim standing indicates legislative acceptance of Comptroller of
Public Account’s interpretation in place before 198 1 recodification of Tax Code). However, a period
of fourteen years with four legislative sessions in which chapter 19 has been reexamined is some
evidence that the legislature concurs with the Secretary of State’s construction.        Accordingly, the
legislature’s decision not to amend the law with respect to permitted uses of the state Funds as
relevant here, despite the several amendments over the years to chapter 19, is some evidence of
legislative acceptance of the Secretary of State’s interpretation.      See Culvert, 414 S.W.2d at 180
(ambiguous statute construed by proper administrative officers, when re-enacted without any
substantial change in verbiage will ordinarily receive same construction); Sharp, 95 1 S.W.2d at 281
(legislature’s decision not to change law regarding refund claim standing indicates legislative
acceptance of Comptroller of Public Account’s interpretation).

        In sum, the Secretary of State has implied authority to adopt rules relating to chapter 19 state
funds. Consistent with section 19.006 of the Election Code, prohibiting the commissioners court
from considering state funds in adopting the county budget for the voter registrar’s office, and
section 19.002(b), directing that they be paid directly to the voter registrar’s office rather than to the
county treasury, the Secretary of State has adopted rules prohibiting the use of disbursed funds for
the normal day-to-day operations of the voter registrar’s office. Because the Secretary of State’s


          ‘See Act of May 4, 1989,71st Leg., R.S., ch. 114, $5,1989 Tex. Gen. Laws 472 (amending section 19.002
to provide for Secretary of State’s monitoring of registrar’s compliance with requirements regarding registrar’s tiling
of statement of number of registered voters with Secretary of State, and providing for withholding of chapter 19 funds
in event of noncompliance);   Act of May 28, 1993,73d Leg., R.S., ch. 916, $ 21, 1993 Tex. Gen. Laws 3880, 3884
(amending section 19.002 and various provisions of chapter 18, titled “Procedures for Identifying Registered Voters,”
to allow SecretaryofState’s  withholding state funds fromregisnariflatter“is  not insubstantialcompliance withSection
 14.025, 16.032, 18.042 cn 18.063 or with rules implementing the registration service program”); Act ofMay 27, 1995,
73d Leg., R.S., ch. 797, 5 32, 1995 Tex. Gen. Laws 4153,4162 (adding to section 19.004 stipulation that state funds
may be used only to defray registration expenses provision that such expenses include those necessary to comply with
National Voter Registration Act of 1993,42 U.S.C. $5 1973gg to 1973gg-10); Act ofMay 16, 1997,75th Leg., R.S.,
ch. 454, 6 7, 1997 Tex. Gen. Laws 1750, 1751 (amending section 19.001(a) to require registrar to prepare and submit
statement to Comptmller of Public Accounts containing number of registrations for which information was updated for
previous voting year and section 19.002(a) to decrease state timds for new registrations and provide state funds for
updated registrations under section 19.001(a)).
The Honorable   Elton Bomer    - Page 7           (X-0038)




rules prohibiting use of chapter 19 state funds for the normal operations of the county voter
registrar’s office are consistent with his authority under chapter 19, he has properly exercised his
authority in adopting such rules.

                                        SUMMARY

                        The Secretary of State has authority to adopt mles prohibiting
                the use of state funds made available under chapter 19 ofthe Election
                Code to pay costs associated with the normal operations of the county
                voter registrar’s office.




                                               JOHN     CORNYN
                                               Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Sheela Rai
Assistant Attorney General
