MARK WHITE Attorney General 

# The Attorney General of Texas
April 9, 1980

Honorable Susan Gurley McBee Chairman, Committee onElections House ofRepresentatives 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 ofState 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 inallprecincts that are to beconsolidated together. Youask whether this rule conflicts with the proviso ofarticle 2.02(g)ofthe Election Code. That statute provides:

In any election for which the election precincts are required to be those formed under the provisions of Section 12ofthis code [article 2.041, ifinany county there isnolocal 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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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 ofthe 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)ofthe Election Code:

The secretary of state is authorized to promulgate rules under which compensation islimited 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 islimited to rules regarding compensation. That statute specifically prohibits him from promulgating rules tying compensation to arequirement that there be fewer than onepolling 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 tolocal authorities to determine the number of election precincts to be consolidated, the Secretary ofState isnot required toprovide 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 ofState isnot authorized topromulgate 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 ofelection precincts without regard to commissioners’ precinct boundaries,

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Attorney General ofTexas JOHN W.FAINTER; JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byRick GiIpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE C.Robert Heath, Chairman Jim Allison Walter Davis Susan Garrison Rick Gilpin Bruce Youngblood

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