MARK WHITE 

Attorney General 

The Attorney General of Texas 

April 9, 1980 

Honorable Susan Gurley McBee 

Chairman, Committee on Elections 

House of Representatives 

Austin, Texas ‘70769 

Opinion No. MW-166 

Re: Whether the Secretary of 

State may promulgate rules 

permitting the consolidation of 

election precincts without regard 

to commissioners’ precinct 

boundaries. 

Deer Representative McBee: 

You have requested our opinion as to whether the Secretary of State 

may promulgate rules permitting the consolidation of election precinct-s 

without regard to commissioners’ precinct boundaries. The Secretary of 

State recently issued Rule 004.30.13.002, which states: 

. . . In designating polling places, ‘a chairman may 

consolidate 14 to all of the election precincts in the 

county in any equitable manner and without regard to 

commissioners’ precinct boundaries, except that e 

chairman may not consolidate any precinct with any 

one or more precincts unless the ballots are identical 

in all precincts that are to be consolidated together. 

You ask whether this rule conflicts with the proviso of article 2.02(g) of the 

Election Code. That statute provides: 

In any election for which the election precincts are 

required to be those formed under the provisions of 

Section 12 of this code [article 2.041, if in any county 

there is no local office or proposition to be voted on 

by the voters of only that county or a part of that 

county, the authority holding the election may 

combine any two or more regular election precincts 

into consolidated precincts for such election in that 

part of the county having no such local office or 

proposition to be voted on if it appears that the 

voters included within each consolidated precinct can 

be adequately and conveniently served et one polling 

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Honorable Susan Gurley McBee - Page Two (Mw-166) 

place; provided, however, that there shall always be at least one 

consolidated precmct wholly wrthm each commmsroners precinct of 

the county. 

(Emphasis added). 

The Secretary of State is designated the chief election officer of the state, article 

1.03, Election Code, and, as such, he “is authorized to promulgate . . . reasonable rules 

which will minimize the costs of the primary elections.” Article 13.08(j), Election Code. 

The Secretary of State contends that his authority to promulgate Rule 004.30.13.002 

derives from article 13.08(h) of the Election Code: 

The secretary of state is authorized to promulgate rules under 

which compensation is limited to polling places at which voters of 

more than one election precinct cast their votes, notwithstanding 

the provisions of Section 10(g) (Article 2.02(g), Vernon’s Texas 

Election Code). The rules for such common polling places shall 

provide for adequate public notice by the county chairman to the 

voters in election precincts effected by the application of such 

rules and shall provide for an adequate number of polling places 

taking into account all other relevant factors including distances of 

oollina places from Darts of the arecincts served. estimated voter 

&n-&t, and geographic or other boundaries.- However, the 

secretary of state may not require that there be less than one 

poling place for each commissioner’s precinct for reimbursement 

purposes. 

(Emphasis added). Under article 13.08(h) the Secretary of State’s authority is limited to 

rules regarding compensation. That statute specifically prohibits him from promulgating 

rules tying compensation to a requirement that there be fewer than one polling place per 

commissioner’s precinct. We believe article 13.08(h) is designed to indicate that 

notwithstanding the permissive authority granted by article 2.02(g) of the Election Code 

to local authorities to determine the number of election precincts to be consolidated, the 

Secretary of State is not required to provide reimbursement for more then four precincts 

per county. In light of the specific language contained in the last sentence of article 

13.08(h), it is our opinion that the Secretary of State is not authorized to promulgate rules 

which permit consolidation of election precincts across commissioners’ precinct 

boundaries. 

SUMMARY 

The Secretary of State is not empowered to promulgate rules 

permitting the consolidation of election precincts without regard to 

commissioners’ precinct boundaries, 

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Honorable Susan Gurley McBee - Page Three (MN-166 1 

. 

S@ 

Attorney General of Texas 

JOHN W. FAINTER; JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick GiIpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Jim Allison 

Walter Davis 

Susan Garrison 

Rick Gilpin 

Bruce Y oungblood 

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