Can a Texas county pay for a new groundwater conservation district's confirmation election?

Plain-English summary

The Kinney County Attorney asked whether the county could pay for the confirmation election of the newly created Kinney County Groundwater Conservation District. He was concerned that such a payment might violate two parts of the Texas Constitution: article III, section 52 (limits on counties lending credit or making grants) and article V, section 18 (which confines a commissioners court to "county business"). The Attorney General concluded the county lacked statutory authority to pay for the election and so did not reach the constitutional questions.

The district was created by House Bill 3243 in the 2001 legislative session, under article XVI, section 59 of the Texas Constitution. The bill provided for the commissioners court to appoint temporary directors, who would call and hold an election to confirm the district and elect initial directors. The temporary directors set the confirmation election for January 12, 2002, and the district asked the county for a donation to help fund it.

The opinion explained that a commissioners court can exercise only powers granted by the constitution and statutes, and its authority to contract is limited to what the law confers expressly or by necessary implication. Before reaching any constitutional limit, the threshold question was whether the Legislature had authorized the county to pay for the election at all. The opinion concluded it had not. House Bill 3243 directed that the district "shall contract with the county clerk of Kinney County to conduct the confirmation and initial directors' election," and the Election Code's contract-for-election-services provisions contemplate that the contracting authority pays the county for its services. The Water Code separately authorizes a groundwater conservation district to pay the costs of its creation and organization. And the Election Code provides that, unless otherwise authorized by law, election expenses are paid by the political subdivision served by the authority ordering the election, which here was the district's board.

Putting those provisions together, the opinion concluded the Legislature placed the duty to contract for and pay election expenses on the district, and that the county would provide the services by contract for monetary consideration. Given that statutory scheme, the county had no express or implied authority to pay for the confirmation election and could not make a donation or grant to the district for that purpose.

Currency note

This opinion was issued in 2001. 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. The Water Code and Election Code provisions cited here, and the specific bill creating this district, may have been amended since 2001, and the analysis was tied to the particular statutory scheme governing this district.

What the opinion meant for those who asked

The Kinney County Attorney and Commissioners Court (what the opinion held): The opinion concluded the county had no statutory authority to pay for the district's confirmation election and could not make a donation or grant to the district for that purpose. Because the statutory analysis resolved the question, the opinion did not decide whether such a payment would also violate article III, section 52 or article V, section 18 of the Constitution.

The Kinney County Groundwater Conservation District (what the opinion held for it): The opinion treated the district as the entity the Legislature made responsible for the election. The district's board orders the election, the district contracts with the county clerk to run it, and the district pays the cost, including reimbursing the county for its services.

Common questions

Can a Texas county chip in to fund a new water district's confirmation election?
The opinion concluded no, at least for this district. The Legislature put the duty to contract for and pay for the election on the district itself, so the county lacked authority to pay and could not donate or grant funds for that purpose.

Who is supposed to pay for the election then?
The opinion explained the district pays. House Bill 3243 directed the district to contract with the county clerk to run the election, the Election Code says the contracting authority pays the county for its services, and the Water Code lets a groundwater district pay its own creation and organization costs.

Why didn't the Attorney General address the constitutional concerns about county spending?
The opinion explained that it first had to decide whether the Legislature authorized the county to pay at all. Because it concluded the county had no statutory authority, it did not need to reach the article III, section 52 or article V, section 18 questions.

Background and statutory framework

A county commissioners court may exercise only those powers the constitution and statutes confer, and its authority to contract on the county's behalf is limited to what is conferred expressly or by necessary implication. Childress County v. State, 92 S.W.2d 1011, 1016 (Tex. 1936); Jack v. State, 694 S.W.2d 391, 397 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.). The district was created by House Bill 3243 under article XVI, section 59 of the Texas Constitution. See Act of May 25, 2001, 77th Leg., R.S., ch. 1344, 2001 Tex. Sess. Law Serv. 3155. The bill is governed together with chapter 36 of the Water Code, the general law for groundwater conservation districts, and it directs the temporary board to call and hold the confirmation election and to contract with the county clerk to conduct it.

The Election Code's subchapter D of chapter 31 governs contracts for election services, and provides that a county election officer who conducts an election for another entity is paid by the contracting authority. Tex. Elec. Code Ann. ch. 31, subch. D (Vernon 1986 & Supp. 2001); id. § 31.093(a) (Vernon 1986). The Water Code authorizes a groundwater conservation district to pay the costs of its creation and organization, Tex. Water Code Ann. § 36.157 (Vernon 2000), and provides that an unconfirmed district must still pay any debts it incurred, id. § 36.017(h). The Election Code further provides that, "[e]xcept as otherwise authorized by law, the expenses incurred in the conduct of a general or special election shall be paid by the political subdivision served by the authority ordering the election." Tex. Elec. Code Ann. § 1.014(a) (Vernon 1986); see id. § 1.005(18) (Vernon 2001). The opinion concluded the district's board was the authority ordering the election, the Legislature had not authorized any other entity to pay, and so the district must pay and the county lacked authority to do so. The opinion grounded its threshold approach in the principle that a county act must first be authorized by statute before any constitutional limit (article III, section 52; article V, section 18) is reached. See Tex. Att'y Gen. Op. No. JC-0171 (2000).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 52
• Tex. Const. art. V, § 18
• Tex. Const. art. XVI, § 59
• Act of May 25, 2001, 77th Leg., R.S., ch. 1344, 2001 Tex. Sess. Law Serv. 3155 (House Bill 3243)
• Tex. Water Code Ann. § 36.157 (Vernon 2000)
• Tex. Water Code Ann. § 36.017(h) (Vernon 2000)
• Tex. Elec. Code Ann. ch. 31, subch. D (Vernon 1986 & Supp. 2001)
• Tex. Elec. Code Ann. § 31.093(a) (Vernon 1986)
• Tex. Elec. Code Ann. § 1.014(a) (Vernon 1986)
• Tex. Elec. Code Ann. § 1.005(18) (Vernon 2001)

Cases:

• Childress County v. State, 92 S.W.2d 1011 (Tex. 1936)
• Jack v. State, 694 S.W.2d 391 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0444
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0444.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 20, 2001

The Honorable Tully Shahan
Kinney County Attorney
P.O. Box 365
Brackettville, Texas 78832-0365

Opinion No. JC-0444

Re: Whether Kinney County is authorized to pay for the confirmation election for the Kinney County Groundwater Conservation District (RQ-0456-JC)

Dear Mr. Shahan:

You ask whether Kinney County (the "County") is authorized to pay for the confirmation election for the Kinney County Groundwater Conservation District (the "District").[1] You are particularly concerned that such an expenditure might violate article III, section 52 and article V, section 18 of the Texas Constitution. Because the statute authorizing the creation of the District and other statutes contemplate that the County will conduct the election for the District by contract for monetary consideration, we conclude that the County lacks statutory authority to pay for the confirmation election and do not reach the constitutional issues raised by your request.

You explain that during the last legislative session, the legislature enacted House Bill 3243 creating the District under article XVI, section 59 of the Texas Constitution. See Act of May 25, 2001, 77th Leg., R.S., ch. 1344, 2001 Tex. Sess. Law Serv. 3155. This bill provides for the appointment by the Kinney County Commissioners Court of a board of temporary directors who will serve "until initial directors are elected under Section 9 of this Act." Id. § 6, at 3156. You inform us that the temporary directors of the District have met and set the confirmation election for January 12, 2002. See Request Letter, supra note 1, at 1. The District has "asked for a donation from Kinney County to help fund the election." Brief attached to Request Letter, supra note 1, at 1. You ask whether the County may pay for the election "if the Commissioners Court found the expenditure to be for a public purpose" under article III, section 52 of the Texas Constitution. Id. You also ask if such an expenditure would be consistent with article V, section 18, which limits the authority of a commissioners court to "county business." Id. at 3-4.

A county commissioners court may exercise only those powers that the state constitution and statutes confer upon it. See Tex. Att'y Gen. Op. No. JC-0171 (2000). Particularly with respect to contracts, courts have held that the authority of a commissioners court to make contracts on behalf of the county is limited to that conferred either expressly or by necessary implication by the constitution and laws of the state. See, e.g., Childress County v. State, 92 S.W.2d 1011, 1016 (Tex. 1936); Jack v. State, 694 S.W.2d 391, 397 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.). Before determining whether a particular county act runs afoul of constitutional limitations on county authority in provisions such as article III, section 52 or article V, section 18, we must first determine whether the legislature has authorized the County to pay for the District's confirmation election. We conclude that the legislature has vested the duty to contract and pay for election services in the District itself and that the legislature has not authorized the County to undertake this expense.

The District is governed both by House Bill 3243 and chapter 36 of the Water Code, the general law provision governing groundwater conservation districts. See Act of May 25, 2001, 77th Leg., R.S., ch. 1344, § 5, 2001 Tex. Sess. Law Serv. 3155, 3156. Section 9 of House Bill 3243 provides that the temporary board of directors "shall call and hold an election to confirm establishment of the district and to elect initial directors." Id. § 9(a), at 3157. The election is governed by both House Bill 3243 and section 36.017 of the Water Code. See id. § 9(e). House Bill 3243 expressly directs that the county clerk will conduct the election pursuant to contract: "The district shall contract with the county clerk of Kinney County to conduct the confirmation and initial directors' election and future elections of the district." Id. § 9(b).

Provisions of the Election Code govern contracts for election services, such as the contract contemplated by House Bill 3243. See Tex. Elec. Code Ann. ch. 31, subch. D (contracts for election services) (Vernon 1986 & Supp. 2001). The Election Code provides that a county election officer, such as a county clerk, who conducts an election for another entity will be paid by the contracting authority for the county's services. See id. § 31.093(a) ("If requested to do so by a political subdivision or political party, the county elections administrator shall enter into a contract to furnish the election services requested, in accordance with a cost schedule agreed on by the contracting parties.") (Vernon 1986) (emphasis added).

We also note that chapter 36 of the Water Code authorizes a groundwater conservation district to pay costs incurred in its creation and organization and to reimburse any person who has advanced money for these purposes. See Tex. Water Code Ann. § 36.157 (Vernon 2000); see also id. § 36.017(h) (expressly providing that a district that is not confirmed by the voters "shall have no further authority, except that any debts incurred shall be paid and the organization of the district shall be maintained until all the debts are paid"). Thus, the Water Code contemplates that a groundwater conservation district will pay for its organizational expenses.

In addition, section 1.014(a) of the Election Code provides that "[e]xcept as otherwise authorized by law, the expenses incurred in the conduct of a general or special election shall be paid by the political subdivision served by the authority ordering the election." Tex. Elec. Code Ann. § 1.014(a) (Vernon 1986); see also id. § 1.005(18) (defining "special election") (Vernon 2001). In this case, the District's board of temporary directors is the authority ordering the confirmation election. See Act of May 25, 2001, 77th Leg., R.S., ch. 1344, § 9(a), Tex. Sess. Law Serv. 3155, 3157. The board serves the District. The legislature has not "otherwise authorized by law" some entity other than the District to pay for the election. See Tex. Elec. Code Ann. § 1.014(a) (Vernon 1986). Accordingly, the District must pay for the election; the County lacks the authority to do so.

In sum, the legislature has provided in House Bill 3243, the Water Code, and the Election Code that the District will contract with the County for election services and pay for election expenses and, moreover, that the County will provide these services by contract for monetary consideration. Given this express statutory scheme, Kinney County lacks express or implied statutory authority to pay for the confirmation election for the Kinney County Groundwater Conservation District. The County may not make a donation or grant to the District for that purpose.

[1] Letter and Brief from Honorable Tully Shahan, Kinney County Attorney, to Susan D. Gusky, Chair, Opinion Committee (Oct. 24, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

                                   SUMMARY

            Kinney County is not authorized to pay for the confirmation election for the Kinney County Groundwater Conservation District and may not make a donation or grant to the District for that purpose.

                                          JOHN CORNYN
                                          Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee