Untitled Texas Attorney General Opinion ( 1952 )

NE GENERAL
EXAS
Hon. Leonard King Opinion NO. V-1448
County Attorney
Childreas-Coun*y Re: Authority o? the colris-
Childretie, Texar sioners I oourt to order
an election to determlne
if an ad valorem tax
should be levied for
farm-to-market and lat-
eral roads, to be held~
in conjunction with the
party primary election
in July, using the came
.eleotion judges and
Dear Sir: clerks.
Reference le made to your request for
the opinion of thlr offloe oonaernlng the author-
ity of the 06rmnilrslonere1 court to order an elec-
tion to determine if an gd vhlorem tax should be
levied for farm-to-mark+t and lateral roads, to be
held in q,onjunctlon with the party p~lmary elec-
tion in July, wing the same election &d&err and
clerka.
The pertineqt part oi;Seotion 7 of Arti-
cle 7048a, V.C.S., relative to calling and holding
an eleotlon for the purpore of levying a tax for
farwto-market end lateral road purposes provides:
“Be$ore any oounty shall levy, amsea
and oolleot the tax provided for herein the
qubrtion rhall by the Oommlrrioners Oourt
of the oounty be rubmltted to a vote of
the quallfled property taxpaying voters
of sugh county at an eleotlon oalled for
that puppore, either on raid Oommlssloners
Court’s own motlo , or upon petition of
ten pecoent (lO$ of the qualified prop-
erty taxph ng vo Por8 of rald oounty as
shown by t r e returm of the last general
election. Said election ohall be ordered
at a regular resrlon of said Uomml``lonera
7Tourt and such oraer #hall speolfy the
-
Hon. Leonard King, page 2 (V-1448)
..,
rate of tax to be voted on, not to exceed
thirty cents. 30#) on each One Hundred
Dollars ($;lOO valuation of taxable prop-
erty within such-~county, shall state-the
date when said election shall be held
and shall appoint officers to hold said
. election In accordance.with the election
laws of thlti State.” (Emphasis added
throughout, 1
Since this Is a special election and Is
held In accordance with the eleo$lon lows, we must
look to the Texas Election,Code (H.B. 6, Acts 52nd
Leg. ,:‘R 3. 19513 ch: 492, 0.. 1097) I.t@ ,aetern@ne
which provlsioiiia of the election laws are appllca-
ble to this type of elect.lon.
. Section 15 of the Election Code provides
in part,:.,:
“The Commissioners Court at the Febru-
kry term shall appoint from among the citizens
of each voting precinct In which there are
less than one hundred (100) voters who have
paid their poll tax or recel$ed their certi-
ficates of exemption, two (2j reputable quals-’
. . fled voters as judges of the’electlon, select-
ed from different @olltical parties, if prao-
tloaDle, yho shall continue to act until
are appointed. . . . One.
shall, in all oases belong
e party that at the 1aBt general eleo-
tlon’oast the largest vote for dovernor
throughout the State shall be designated
as the presiding jud e at electlone; he
shall appoint two (2 7 competent and reput-
Section 16 of the Election Cod& provides
in part:
“For every reolnct
net in whloh, there ”
a&q ane hundred P100)~citlzens
citizens or more who
have @aid their poll tax or received their
certificates of exemption, ,the Commlssion-
ers Court shall appoint four (4) judges of
eledtlon, who shall be chosen when prac-
ticable from opposing political parties,
. -
Hon. Leonard King, page 3 (~-1448)
one of whom shall be designated as presid-
ing judge. . . . The presiding judge shall
appoint four (4) competent and reputable
clerks, and as many other clerks as may
be authorized by the Commissioners Court,
who have paid their poll tax, or have se-
cured their exemptions,.and of different
olltlcal parties, when practicable; . . .
rovided, that in a11 elections herd under
the provisions of this title, otherthan
general elections’, local option elections
and primary elections, the officer@ t0 be
ppi-t-dby
a one e
hold said elections shall be a presiding
judge, and assistant judge and two (21
1 k whose compensation shall
&*i ($5) per day, and TWODol?zrziTg2)
extra to the presiding judge for makim
return of the election.”
Section 22 of the Election Code provides: ..
“The pay of judges and clerks of general
and special elections shall be determined by
the Commissioners Court of the county where
such services are rendered, and In primary
elections by the County Executive Committee
of the party conducting such primary elec-
tion but same shall not exceed Ten Dollars
($10~ a day for each judge or clerk, nor ex-
ceed One Dollar ($1) per hour each for any
‘~tirne in excess of a day’s work as herein de-
fined. The judge who delivers the returns
of election Immediately after the votes
have been counted shall be paid Two Dollars
($2) for that service; provided, also, he
shall make returns of all election supplies
not used when he makes returns of the elec-
tion. Ten (10) working hours shall be con-
sidered a day within the meaning of this
Article. The compensation of judges and
clerks of general and special elections
shall be paid,by the County Treasurer of
the county where such services dare randered
upon order of the Commissioners.”
Section 77 of the Election Code provides:
“All expenses incurred in furnishing
Hon. Leonard King, page 4 (v-1448)
the supplies, ballots, and booths In any
general or special election shall be p&d
for by the county, except costs in munlci-
i: pal and school elections. All accounts for
supplies furnished and services’rendered
shall first be approved by the Cbmmleeioners
Court.before they are paid by the oounty.”
The pertinent provisions of the I$leotlon
.Code rkrtl~ve to ‘the ‘“primary electlon”l, rre’aq follows:
Sec. 179 - “The teem ‘prlmarjr election, I:
as used in this chapter, means an election
held by the members of an organized political
party for the purpose of nominating the Oandl-
dates op such party to be voted for at a
general or speo~lal election, or to nominate
L the county executive officers of a party.”
‘Sec. 186 - “Prior to the assessment
of the candidates, on the third Monday in
June preceding each general primary, the
oounty c,ommlttee shall also aarefully es- \
timate the cost of printing.the offlclal
ballots, ‘renting polling plaoee where same
may. be found necessary, providing and dis- :
tributlng all neoeesary poll booka, blank
stationery and voting booths required,
compensation df election officers and
‘alerks and messengers, to report the result
ih,auch precinbt to the county chairman, as
provided for herein, and all other necessary
expennes of holding such primarlee in suah’
counties and.shall apportion ‘such cost among
the Various candidates for nomination for
Hon. Leonard King, page 5 (v-1448)
district, county and precinct offices only
as herein defined, and offices to be filled
by the voters of such district, county or
precinct only, In such manner as in their
judgment Is just and equitable; . . ."
An analysis of the above statutes relative
to "farm-to-market elections" and "primary eleatlons"
reveals:
1. It Is mandatory that the commissioners'
court appoint only four persons to hold the "farm-to-
market election" in each election precinct, whereas
the county chairman of the political party, with the
assistance of a majority of the county executive com-
mittee, appoints a presiding judge of each election
precinct, and the presiding judge appoints an asso-
ciate judge and clerk to assist him. However, an
indeterminate n~umberof persons may be appointed to
hold each precinct primary election if It is so de-
termined by the county executive committee.
2. The four persons appointed to hold the
"farm-to-market election" shall be chosen where prac-
ticable from opposing polltltial parties; contrarily,
however, the three persons or more appointed to hold
the "primary election" are chosen from the same politi-
cal party. :
3. The judges and clerks of each election
precinct in the "farm-to-market election" are paid.
by the county, but the judges and clerks of the
"Primary election" are paid by the county chairman
out of the funds derived through the assessments
paid by the candidates of the party holding the,
primary election.
4. All other expenses of holding the 'farm-
to-market election" are peld for by the county, whereas
similar expenses for holding the "primary election" are
paid by the county chairman out of the funds collected
from the candidates.
This office passed on a similar question In
Attorney General's Opinion O-2539 (l#O), from which
we quote as follows:
‘I . . . However, we are of the opinion
that Article 666-33, supra, is an express
Hon. Leonard King, page 6, (v-1448)
provision of the statutes requiring the
commlssioners~ court to appoint offloers
to hold local option electiona~,ae now re-
quired to hold general elections, and In
appointing 'or attempting to appoint the
election officials designated to hold prl-
mary elections would not be In compliance
with the express provisions of the above
mentioned statute.
"In view of the foregoing> you are
respectfully advised that It 1s the opln-
ion of~thls department that the commls-
sloners' court does not have the legal
authority to appoint as judges of a local
option election the same judge8 as those
appointed by the County Democratic Commit-
tee to hold the Democratic Primary Elec-
tion. In the event the same election
judges, etc. holding the primary election
were to hold the local option election at
the same time, there would be no saving of
'exp$nses, for the county must pay the expens-
' es of holding the local option election,
and candidates, through the county chair-
man, pay the expenses of the primary elec-
tion and the county could not legally avoid
the payment of the expenses of holding the
local option election by attempting to have
the election officials of the primary elec-
tion to hold the local option election along
with the primary election, the expense of
.. such being paid bK the candidates In the
sprimary eleotlon.
In view of the foregolng, It Is ok ,opln-
Ion that the oommle~l~nere-' oourt does ,not have”&u- .
thorl to or@r tiat’tha eUet9on juBgee and olerks"='
oonduoh%lng 8 pa&y prlmmry:eleotlon al00 cWMUCt at
the name time aceleotion to determine If a11 ad valorem
tax should be levied for farm-to-mu4cet and lateral
roada.
Ron. Le.onard King, page, 7 (v-1448)
A commi~%!loness', court do&.not have
authority to &der tha.t the eleatloh'judges
and clerks conducting a prlmary``,~lection
also conduct at the same time'8ti!electlon
to determilie if an ad valorem ix& should be
'levied for farm-to-market and lateral, roads.
Yours veby thly,
APPROVED: PFU~BDANXEL
Attorney Qeheral
Mary K, Wall
Reviewing Assistant
Charles D. Mathews ,e.$uh),p11
First Ahlstant . C. Davis, Jr.
Assistant
JCD:mh :'