Can a county elections administrator also handle 9-1-1 addressing and redistricting work?

Plain-English summary

Jaime Tijerina, the Kenedy County Attorney, asked the Attorney General whether the county commissioners court could have its county elections administrator also perform the duties of a 9-1-1 addressing agent and help prepare redistricting maps. Small counties often want one capable employee to wear more than one hat, and the question was whether the law allowed it here.

The opinion worked through two separate concerns. The first was incompatibility: the common-law doctrine that bars one person from holding two conflicting public "offices." That doctrine only applies when both positions are actually offices. An appellate court had held back in 1997 that a county elections administrator does not hold a public office, and the 9-1-1 addressing agent is not an office either. With neither role qualifying as an office, the conflicting-loyalties branch of incompatibility did not apply, and the opinion found no constitutional or statutory provision otherwise barring one person from holding both positions.

The second concern was the elections administrator's job description. The administrator's duties are set by statute, and under ordinary rules of construction (the principle that naming specific duties implies the exclusion of others), those statutory duties appear to be exclusive. So the opinion drew a line: the duties of a 9-1-1 addressing agent could not be folded into the elections-administrator position itself. What the county could do instead was separately employ the same individual to perform the 9-1-1 addressing and map-preparation work. The county judge's letter noted the person was willing to work before 8:00 a.m. and after 5:00 p.m. to cover the added duties, and the commissioners court sets compensation for county employees paid from county funds.

Putting it together, the opinion concluded the commissioners court may employ the individual serving as elections administrator to also perform 9-1-1 addressing duties and assist with redistricting maps. The separate question of what working hours those duties should be performed in was a matter for local determination, so the opinion did not address it.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Kenedy County Attorney (as the opinion described it): The opinion answered that the commissioners court could employ the same person who serves as elections administrator to also perform 9-1-1 addressing and redistricting-map work, while noting the elections-administrator duties themselves appear exclusive, and it left the working-hours question to local determination.

County commissioners courts (as the opinion described it): The opinion read the law to permit separately hiring one individual for the two non-office positions and noted the commissioners court sets compensation for county employees paid wholly from county funds.

County elections administrators (as the opinion described it): The opinion treated the administrator's statutory duties as exclusive, so additional duties could not be assigned to that office; the same person could nonetheless be separately employed in the other role. It also noted the political-activity restrictions section 31.035 places on the administrator.

Common questions

Can one person be both the county elections administrator and the 9-1-1 addressing agent?
According to the opinion, yes. Neither position is a public office, so the common-law incompatibility doctrine does not apply, and no other provision bars holding both.

Can the county just add 9-1-1 duties to the elections administrator's job?
The opinion said no. Because the elections administrator's statutory duties appear to be exclusive, the 9-1-1 addressing duties could not be assigned to that office. The county had to employ the person separately for the second role.

Why does it matter whether these roles are 'offices'?
The conflicting-loyalties branch of common-law incompatibility only applies when both positions are offices. The opinion relied on a 1997 decision holding the elections administrator is not an officeholder, which took the doctrine off the table.

Who decides the pay and hours for the combined work?
The opinion noted the commissioners court sets compensation for county employees paid wholly from county funds, and it treated the working-hours question as a local matter it would not decide.

Background and statutory framework

A commissioners court may by written order create the position of county elections administrator. Tex. Elec. Code Ann. § 31.031(a) (West 2010). The position is filled by the county election commission. Id. § 31.032(a), § 31.032 (West 2010). The administrator's duties are prescribed by statute and include the duties of the voter registrar, the elections duties of the county clerk under and outside the Election Code (subject to section 31.044), and the duties placed on the administrator under sections 31.044 and 31.045. Id. § 31.043 (West 2010); see id. §§ 31.044, 31.045. Section 31.035 imposes political-activity restrictions on the administrator. Id. § 31.035(a) (West 2010).

On incompatibility, the opinion relied on Krier v. Navarro, 952 S.W.2d 25, 30 (Tex. App.-San Antonio 1997, pet. denied), holding the elections administrator does not hold a public office, and noted the conflicting-loyalties doctrine traces to Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); see also Tex. Att'y Gen. Op. Nos. GA-0273 (2004), GA-0350 (2005). On the exclusivity of statutory duties, it cited Lab. Corp. of Am. v. Compton, 126 S.W.3d 196, 198 (Tex. App.-San Antonio 2003, pet. denied). The 9-1-1 addressing coordinator role derives from a model agreement under Tex. Health & Safety Code Ann. ch. 771 (West 2010 & Supp. 2011), and the commissioners court sets compensation for county employees under Tex. Loc. Gov't Code Ann. § 152.011 (West 2008).

Citations

Cases:

• Krier v. Navarro, 952 S.W.2d 25, 30 (Tex. App.-San Antonio 1997, pet. denied)
• Lab. Corp. of Am. v. Compton, 126 S.W.3d 196, 198 (Tex. App.-San Antonio 2003, pet. denied)
• Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)

Statutes:

• Tex. Elec. Code Ann. § 31.031(a) (West 2010)
• Tex. Elec. Code Ann. § 31.032(a) (West 2010)
• Tex. Elec. Code Ann. § 31.032 (West 2010)
• Tex. Elec. Code Ann. § 31.043 (West 2010)
• Tex. Elec. Code Ann. § 31.044
• Tex. Elec. Code Ann. § 31.045
• Tex. Elec. Code Ann. § 31.035(a) (West 2010)
• Tex. Health & Safety Code Ann. ch. 771 (West 2010 & Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 152.011 (West 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0939
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0939.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 29, 2012

The Honorable Jaime E. Tijerina Opinion No. GA-0939
Kenedy County Attorney
Post Office Box 202 Re: Whether a commissioners court may employ a
Sarita, Texas 78385 county elections administrator to perform the duties
of a 9-1-1 addressing agent and to assist in the
preparation of redistricting maps (RQ-1023-GA)

Dear Mr. Tijerina:

You ask whether a commissioners court may employ a county elections administrator to perform the duties of a 9-1-1 addressing agent and to assist in the preparation of redistricting maps.[1]

A commissioners court "by written order may create the position of a county elections administrator for the county." TEX. ELEC. CODE ANN. § 31.031(a) (West 2010). You indicate that the Kenedy County Commissioners Court created the position of elections administrator on September 6, 2006. Request Letter at 2. Subsequently, the position of elections administrator was filled, pursuant to statute, by the county election commission. Id.; see TEX. ELEC. CODE ANN. § 31.032(a) (West 2010).[2] The duties of the elections administrator are prescribed by statute:

The county elections administrator shall perform:
(1) the duties and functions of the voter registrar;
(2) the duties and functions placed on the county clerk by [the Elections] code;
(3) the duties and functions relating to elections that are placed on the county clerk by statutes outside this code, subject to Section 31.044;[3] and
(4) the duties and functions placed on the administrator under Sections 31.044 and 31.045.[4]

TEX. ELEC. CODE ANN. § 31.043 (West 2010) (footnotes added). You indicate that the commissioners court "has expressed a desire to hire" the elections administrator to perform the duties of the 9-1-1 addressing agent and inquire whether the elections administrator may be assigned those duties as well as duties involving the preparation of redistricting maps.[5] Request Letter at 2.

You first express concern about the possible incompatibility between the positions of county elections administrator and the assumption of the additional duties you describe. Id. at 3. In 1997, an appellate court held that a county elections administrator does not hold a public office. See Krier v. Navarro, 952 S.W.2d 25, 30 (Tex. App.-San Antonio 1997, pet. denied). When the potential incompatibility of the positions is analyzed, it is well established that both positions must be "offices" in order for the "conflicting loyalties" aspect of common-law incompatibility to be applicable. See, e.g., Tex. Att'y Gen. Op. No. GA-0273 (2004) at 3.[6] Because neither the elections administrator nor the 9-1-1 addressing agent holds an "office," common-law incompatibility does not preclude one person from performing both sets of duties. Furthermore, no constitutional or statutory provision would appear to restrict a single individual from holding the two positions of elections administrator and 9-1-1 addressing agent.[7]

As we have noted, the duties of a county elections administrator are prescribed by statute. Under the generally recognized rules of construction, those duties appear to be exclusive. See Lab. Corp. of Am. v. Compton, 126 S.W.3d 196, 198 (Tex. App.-San Antonio 2003, pet. denied) ("the express mention of one person, thing, consequence or class is tantamount to the express exclusion of all others"). Thus, while the duties of a 9-1-1 addressing agent may not be assigned to the county elections administrator, we are aware of no provision of Texas law that would prohibit a county from hiring one individual for the two separate positions. A letter from the County Judge of Kenedy County indicates that the individual in question "is willing to start and end his work day prior to 8:00 a.m. and continue after 5:00 p.m. if necessary," in order to perform the duties of 9-1-1 addressing and map preparation. See Request Letter (attachment from County Judge). In such instance, a commissioners court may separately employ the individual serving as elections administrator to perform the duties of a 9-1-1 addressing agent. Furthermore, the "commissioners court shall set the amount of compensation ... for county and precinct officers and employees who are paid wholly from county funds." TEX. LOC. GOV'T CODE ANN. § 152.011 (West 2008).

We conclude that a commissioners court may employ the individual serving as county elections administrator to perform the duties of a 9-1-1 addressing agent and to assist in the preparation of redistricting maps. Because your question about the working hours during which the elections administrator may perform those duties is a matter for local determination, we do not address it.

SUMMARY

A commissioners court may employ the individual serving as county elections administrator to perform the duties of a 9-1-1 addressing agent and to assist in the preparation of redistricting maps.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jaime E. Tijerina, Kenedy Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Nov. 9, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter") (attached letter from Honorable Louis E. Turcotte, III, Kenedy County Judge) (on file with Op. Comm.).

[2] The county election commission consists of: "(1) the county judge, as chair; (2) the county clerk, as vice-chair; (3) the county tax assessor-collector, as secretary; and (4) the county chair of each political party that made nominations by primary election for the last general election for state and county officers preceding the date of the meeting at which the appointment is made." TEX. ELEC. CODE ANN. § 31.032 (West 2010).

[3] Section 31.044 describes the division of duties between the county clerk and the county elections administrator. See id. § 31.044.

[4] Section 31.045 directs the Secretary of State to "adopt rules consistent with Sections 31.043 and 31.044 that classify the duties and functions placed on the county clerk by statutes outside [the Election] code according to whether they are to be performed by the county elections administrator or by the county clerk." See id. § 31.045.

[5] The position of "9-1-1 addressing coordinator" is provided for in the model agreement created by the Commission on State Emergency Communications for the use of regional planning commissions and Texas political subdivisions. See generally TEX. HEALTH & SAFETY CODE ANN. ch. 771 (West 2010 & Supp. 2011).

[6] There are three aspects of the common-law doctrine of incompatibility: self-appointment; self-employment; and conflicting loyalties. The "conflicting loyalties" aspect was first addressed in Thomas v. Abernathy County Line Independent School District, in which the court held that the offices of school trustee and city alderman are incompatible. Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); see also Tex. Att'y Gen. Op. No. GA-0350 (2005) at 4 (citing Thomas for the proposition that both positions must be offices for conflicting loyalties incompatibility to apply).

[7] Section 31.035 of the Election Code imposes restrictions on the political activities of a county elections administrator. For example, he may not be a candidate for public office or an office of a political party, hold a public office, or hold an office or position in a political party. TEX. ELEC. CODE ANN. § 31.035(a) (West 2010).