Untitled Texas Attorney General Opinion ( 1961 )

THEA~TORNEYGENEEAL
OF TEXAS
February 20, 1961
Honorable Ii.W. Kilgore Opinion NO. ww-995
County Attorney
Victoria County Re: Liability for expenses in
Victoria, Texas holding elections in water
control and improvement
districts.
Dear Sir:
You have requested an opinion on who should pay the ex-
penses, including compensation of judges and clerks, for holding
elections for water control and improvement districts. The dis-
trict directly concerned in your request lies wholly within
Victoria County. You have referred to Article 7880-26, Vernon's
Texas Civil Statutes, and Articles 3.08 and 7.12 of Vernon's
Texas Election Code, and from these statutes you have concluded
that Victoria County should pay the expenses of this district's
elections.
Article 7880-26 provides that all elections held by a
water control and improvement district "shall be ordered, held
and conducted in accordance with the laws of this State for the
holding of general elections for State and county officers, ex-
cept as herein otherwise provided."
Article 3.08 of the Election Code, insofar as it is
pertinent, reads:
"The pay of judges and clerks of general and
special elections shall be determined by the Com-
missioners Court of the county where such services
are rendered, and in primary elections by the
County Executive Committee of the party conducting
such primary election, * * *. The compensation of
judges and clerks of general and special elections
shall be paid by the County Treasurer of the county
where such services are rendered upon order of the
Commissioners."
Article 7.12 of the Election Code reads:
Honorable W. W. Kilgore, Page 2 (WW-995)
"All expenses Incurred in furnishing the sup-
plies, ballots, and booths in any general or special
election shall be paid for by the county, except
costs in municipal and school elections. All accounts
for supplies furnished and services rendered shall
first be approved by the Commissioners before they
are paid by the county."
After considering the background of these provisions in
the Election Code and their relation to other statutes, we have
arrived at the opinion that Articles 3.08 and 7.12 do not make the
county liable for the costs of elections held by water control and
improvement districts, and that the expenses of the elections are
to be paid by the district.
Water control and improvement districts are independent
political subdivisions of the State "and standing upon the same
footing as counties and other political subdivisions established
by law.'! Willacy County Water Control and Improvement District
NO. 1 v. Abendroth 142 Tex. 320 l(m.2d 936 (1944). They my
6eference
e to c&nty lines, and the territory of
a district may include any county or counties, or portions of a
single county or any number of counties. Art. 7880-h. The dis-
trict performs functions for the benefit of the territory which it
embraces and the residents of that territory, and its operations
have no direct connection with county affairs or the functions for
which county taxes are collected. The county commissioners court
and other county officers have a part In the formation of districts
embraced wholly within a single county (Arts. 7880-10 to 7880-20),
but after a district has been created, its affairs are completely
divorced from county control. The district has its own governing
body and its own operating funds. The directors of the district
order its elections, appoint the election officers, canvass the
returns, and in all other res ects have complete control over the
district elections. Arts. 781 o-27 t0 7880-29.
In view of the Independent nature of a district, the
logical expectation would be that the costs of Its elections
should be borne by the district rather than by the county or coun-
ties in which it is situated. The statutes providing for the
creation and functioning of these districts (Chapter 3A, Title 128,
V.C.S.) do not expressly state that election expenses shall be paid
by the district, but the reasonable conclusion would be that the
Legislature intended for the district to pay these expenses and
that they were included within the provision for payment of "all
expenses, debts and obligations" and "all expenses of maintenance,
repair and operation of the district." Arts. 7880-102 and 7aaO-
103.
Honorable W. W. Kilgore, Page 3 (WW-995)
Article 7880-23 provides that before the district shall
incur any indebtedness other than for its operation and the hold-
ing of an election, the directors shall call an election on con-
firmation of Its organization. Article 7880-24 provides that if
the vote is against confirmation, the district shall have no
further authority except that any debts incurred shall begpaid,'and
the organization shall be maintained until all such debts are paid.
These provisions would not necessarily have to be'construed as
meaning that the expense of the election is an indebtedness against
the district rather than an indebtedness which the directors are
authorized to incur against the county or counties In which it is
located, but in our opinion this is the more reasonable construc-
tion. By even stronger implication, expenses of selectionsordered
by the directors subsequent to confirmation would be indebtednesses
against the district.
Our construction of Article 7880-26, quoted earlier in
this opinion, is that it refers to the procedures for ordering and
conducting the elections and that it was not Intended to fix
liability for the expenses of the elections. This conclusion is
supported by comparison with similar provisions in other statutes.
In the statutes regulatin water Improvement districts
(Chapter 2 of Title 1281, Article 7 291 provides that "the manner
of conducting all elections herein provided for shall be governed
by the election laws of the State of Texas, except as herein
otherwise provided,' and Article 7719 provides that "all elections
held in water improvement districts shall be held in accordance
with the provisions of the general election laws of this State,
except as herein otherwise.provided." There is no express pro-
vision that expenses of all district elections shall be paid'by
the district, but we find a clear implication to this effect in
Article 7622b, relating to annexation of territory not embraced
in a district, which was enacted in 1941 and which amounts to a
legislative construction of then existing law. This statute
provides that separate elections on the question of annexation
shall be held within the boundaries of the district and within
the territory to be annexed, and "all expenses of each of said
elections shall be paid by the district." This provision apparent-
ly presupposes that the district would ordinarily be liable for ex-
penses of elections held within the district, and was Inserted in
the statute to clarify the district% liability for the expenses
of the election held outside its boundaries.
Of course, the statutes on water improvement districts
are not applicable to water control and improvement districts, but
the close similarity of these two types of districts makes those
Honorable W. W. Kilgore, Page 4 (WW-9%)
statutes pertinent In arriving at a proper construction of Article
7880-26. A further example of liability of another similar type
of district for its election expenses is found in Chapter 4 of
Title 128,relating to fresh water supply districts. Article 7934
provides that "all expenses incident to calling and holding all
elections except the first authorized by this chapter, shall be
paid out of any district funds, except interest and sinking fund
for bonds." (The expenses of the first election are paid out of
a deposit accompanying the petition for creation of the district.
Art. 7883.) Other examples may also be found where election ex-
penses of similar districts expressly or impliedly are to be paid
out of district funds or out of deposits. We have not found any
Instance where it is expressly provided In statutes relating to
districts of this nature that the county should bear the expenses,
of the district elections.
In the absence~of Articles 3.08 and 7.12 of the Election
Code, we think the statutes regulating water control and lmprove-
ment districts clearly should be construed as making the election
expenses a charge against the district. We come, then, to the
question of whether these provisions In the Election Code should
be construed as making the county liable for the expenses.
Before proceeding with an examination of Articles 3.08
and 7.12, it should be observed that the Election Code of 1951 Is
a direct descendent of the Terre11 Election Law (Ch. ll,.Acts of
the 29th Leg., 1st C.S., 1905) and retains much of the same lang-
uage used in the original law. Except for provisions relating to
party nominations, both laws were designed and written primarily
with reference to elections for state, district, county and pre-
cinct officers and other elections which are conducted by the
county. Municipal elections, and to a lesser extent school elec-
tions, receive some attention, but in the main the provisions are
worded In terms of elections which are conducted by the counties.
The absence of any mention in the Terre11 Election Law of elec-
tions held by political subdivisions other than counties, cities
and school districts is explained by the fact that prior to 1905
there were no other subdivisions which held elections. Conserva-
tion districts were first created In 1905, following the amendment
of Article III, Section 52 of the Constitution In 1904, and
reached a status of widespread existence only after the adoption
of Article XVI, Section 59 of the Constitution In 1917. To con-..
strue the term "general and special elections" In statutes which
have brought forward the original provisions of the Terre11 Elec-
tion Law without substantial change as applying to elections held
by other political subdivisions would do violence to the intent of
these statutes, which were not written with these types of elec-
tions in mind.
Honorable W. W. Kilgore, Page 5 (WW-9%)
Article 3.08 of the Election Code provides that the com-
pensation of judges and clerks of general and special elections
shall be determined by the commissioners court and shall be paid
by the county treasurer. These provisions, we think, are appli-
cable only to elections which are ordered or held under the super-
vision of county officers.
Article 7.12 of the Election Code is derived from Section
147 of the Terre11 Election Law, which originally read as follows:
"All expenses incurred in providing voting booths,
stationery, official ballots, wooden or rubber stamps,
tally sheets, polling lists, Instruction cards, ballot
boxes, envelopes, sealing wax and all other supplies
required for conducting a general or special election
shall be paid for by the county, except the cost of
supplying booths for cities, which shall be provided
for as required by former laws; provided, that all
accounts for supplies furnished or services rendered
shall first be approved by the county commissioner's
court, except the accounts for voting booths for
cities."
This section did not apply to city elections, which were provided
for in Section 45 of the Terre11 Election Law, stating that "the
expense of all city elections shall be paid by the city in which
same are held." (Cf. Art. 7.13, Election Code.) At that time, and
continuing until 1935, counties were liable for expenses of school
district elections. It is thus seen that these two sections cover-
ed all general and special elections which had theretofore been
provided for in this State, namely, elections held by counties,
cities, and school districts. The question we are confronted with
in this opinion is whether the scope of Section 147, as brought
forward through the revisions of 1911 and 1925 into Article 7.12
of the Election Code, has been enlarged to include general and
special elections held by other political subdivisions.
Section 147 excepted "the cost of supplying booths for
cities, which shall be provided for as required by former laws."
Voting booths were required only at polling places within cities
of 10,000 or more Inhabitants (cf. Art. 7.01, Election Code), and
under "former laws" the costs were borne equally by the State and
by the county. Art. 1787, R.C.S. 1895. The purpose of this pro-
vision was not to except city elections from the elections for
which the county was liable (this was done by Section 45), but to
relieve the county from full liability for expenses of furnishing
voting booths in the elections for which it was required to pro-
vide supplies.
Honorable W. W. Kilgore, Page 6 @W-q%)
Section 147 remained unchanged in the revisions of 1911
and 1925, except that the 1anguage~"which shall be provided for
as required by,former laws" was omitted in the 1925 revision.
Art. 2988, R.C.S. 1911; Art. 2996, R.C.S. 1925. As the law existed
up to 1951, there could have been no substantial ground for holding
that re-enactment of the original provisions of 1905 had extended
liability of counties to elections of political subdivisions such
as water control and improvement districts, whose creation had been
authorized subsequent to 1905. It Is evident that Article 2996,
R.C.S. 1925, was not intended to have this effect, since Article
7934 of the same revision expressly provided that election expenses
of fresh water supply districts were to be paid out of district
funds.
When Article 2996 was codified into Article 7.12 of the
1951 Election Code, the change made was to substitute "except costs
in municipal and school elections" for the former provision,
"except the cost of supplying booths for cities." Under the law
as it then existed, other statutes expressly provided that the
costs of city elections were to be paid by the city (Art. 2997,
R.C.S., 1925, now Art. 7.13 of the Election Code) and that the
costs of school elections were to be paid by the school district
(Art. 2746b, V.C.S., enacted in 1935). It is our opinion that this
change was merely a statement of existing law covering elections
which had formerly been subject to Articles 2996 and 2997, and was
not intended to enlarge the types of elections for which the ,county
was liable. This construction is in accord with the historical
comment under Article 7.12 of Vernon's Annotated Election Code,
prepared by the Counsel for the Election Code Commission (see
V.A.T.S., Vol. 9, p. III), which states that no change was made In
the law.
Without further indication of an intent to make the
county liable for expenses of elections held by distinct, independ-
ent political subdivisions such as water control and improvement
districts, we are unwilling to say that the Legislature intended
to place this liability on the counties by the changes made in
Article 7.12. Accordingly, we hold that the expenses of the dis-
trict elections, including the pay of election judges and clerks,
should be paid by the district.
SUMMARY
A county Is not liable for the expenses of
elections held by water control and improvement
districts situated within the county. Each
.
Honorable W. W. Kllgore, Page 7 (WW-995)
district pays the expenses of its elections.
Yours very truly,
WILL WILSON
Attorney General of Texas
MKW:afg
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jerry H. Roberts
Virgil Pulliam
Iola Wilcox
REVIEWFDFORTHEATTORNEX GENERAL
BY: Morgan Nesbitt