SECRETARY OF STATE
State of Texas
Dear Commissioner Speer:
On August 7, 2002, you sent this office a letter requesting advice about the authority of a county to accept donations to pay for temporary branch early voting polling places at specific times and locations. In an effort to give you advice before your August commissioners court meeting in which this item was scheduled to be discussed, we responded to you as quickly as possible on August 12, 2002. Our advice was that although we could not find an outright statutory prohibition, we strongly cautioned against accepting conditional donations. Since August 12, 2002, we have continued to examine this question and we have sought advice from the Attorney General. Based on our continued research into this issue, and advice received from the Attorney Generals office, we have concluded that such a conditional donation is not merely a poor public policy that we would caution against, but is actually illegal under state law. Therefore, we have decided to address this question of general importance within the context of an official election law opinion, which is rendered under my authority to obtain and maintain uniformity in the interpretation of election laws. Tex. Elec. Code Ann. § 31.003 (Vernon 1986).
The authority of a county to accept donations for a temporary branch polling place or any other purpose must be provided by statute and is limited by the Texas Constitution, particularly the separation-of-powers doctrine, which precludes the delegation of sovereign authority to private entities. We conclude that county acceptance of a conditional donation for an election-related purpose would violate the constitutional doctrine of separation of powers.
I. Statutory Authority
As we stated in our letter of August 12, 2002, Section 81.032 of the Local Government Code provides that the commissioners court may accept a donation on behalf of the county for the purpose of performing a function conferred by law on the county or a county officer. Tex. Loc. Govt Code Ann. § 81.032 (Vernon Supp. 2002). The county is generally responsible for the November election. Specifically, conducting early voting by personal appearance is a function of the county clerk in her capacity as early voting clerk. Tex. Elec. Code Ann. § 83.002(1) (Vernon Supp. 2002). The commissioners court has the authority to create temporary
branch polling places. Id. § 85.062(a)(1). Once a branch has been created, the clerk is responsible for conducting voting at the temporary branch. Please note that any polling place changes and the creation of new polling places must be precleared (approved) by the U.S. Department of Justice. Such request for preclearance should be submitted no later than 75 days before the change is needed since DOJ is allowed 60 days to review your requested change.
There are no judicial opinions addressing Section 81.032 of the Local Government Code. An attorney general opinion notes that Section 81.032 "does not authorize the commissioners court to accept a donation for purposes inconsistent with the constitution or laws," see Tex. Atty Gen. Op. No. JC-0443 (2001) at 2, but does not address whether the statute contemplates conditional donations. The legislative history is minimal and does not address whether the Legislature intended to authorize counties to accept conditional donations. See Office of House, Bill Analysis, Tex. H.B. 614, 76th Leg., R.S. (1999); Hearings on Tex. H.B. 614 Before the House Comm. on County Affairs, 76th Leg., R.S. (Mar. 10, 1999); Hearings on Tex. H.B. 614 Before the Sen. Comm. on Intergovernmental Relations, 76th Leg., R.S. (Apr. 28, 1999). Thus, it is an open question whether this statute authorizes a commissioners court to accept a conditional donation.
Based on the statutes plain language, it is clear that that the Legislature intended to authorize counties to accept gifts "for the purpose of performing a function conferred by law on the county or a county officer," see Tex. Loc. Govt Code Ann. § 81.032 (Vernon Supp. 2002), but it is not clear that the Legislature intended to authorize counties to accept gifts that would direct the performance of county functions. The Code Construction Act provides that in construing a statute, one must consider, among other things, the consequences of a particular construction. Tex. Govt Code Ann. § 311.023(5) (Vernon 1998). It is presumed that compliance with the constitution of this state is intended. Id. § 311.021(1). Therefore, an analysis of the constitutionality of an interpretation that allows counties to accept conditional donations must be made.
II. Constitutional Limitations
Article II, Section 1 and Article III, Section 1 of the Texas Constitution divide the powers of the State of Texas into the three branches of government. The three branches are precluded from exercising "any power properly attached to either of the others." Tex. Const. art. II, § 1. Article III, Section 1 precludes the Legislature from delegating governmental power to private entities. See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) ("the proper constitutional source for a prohibition of delegations to private entities or another governments entities is Article III, Section 1 of the Constitution").
Delegation of sovereign authority to private entities is prohibited at the local level. "No governmental agency can, by contract or otherwise, suspend or surrender its functions, nor can it legally enter into any contract which will embarrass or control its legislative powers and duties or which will amount to an abdication thereof." City of Corpus Christi v. Bayfront Assocs., Ltd., 814 S.W.2d 98, 107 (Tex. App.Corpus Christi 1991, writ denied); Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.San Antonio 1951, no writ). "Absent specific constitutional authorization, a city or county may not transfer control of its governmental functions to another entity." Tex. Atty Gen. Op. No. JC-0335 (2001) at 7. Thus, as Attorney General Opinion JC-0073 recognized, a statute authorizing a county to accept donations may not authorize a county to delegate its decision-making authority to others. See Tex. Atty Gen. Op. No. JC-0073 (1999) at 3 ("Nor may the commissioners court delegate its decision-making authority to others.") (citing Grayson County v. Harrell, 202 S.W. 160, 163 (Tex. Civ. App.Amarillo 1918, writ refd) and Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 391 (Tex. 1977)).
Public officials decisions about elections and the voting process are a central governmental function. Given the great public interest in maintaining fairness in elections, questions about private influence in the voting process must be closely scrutinized. The Election Code vests commissioners courts with the authority to establish temporary branch early voting polling places. See Tex. Elec. Code Ann. § 85.062 (Vernon Supp. 2002). A commissioners court agreement with a private party to exercise this authority in a particular manner would violate separation of powers by delegating sovereign authority to a private entity.
Furthermore, the Legislature may not authorize a private entity to control a commissioners courts discretion with respect to the selection of temporary branch early voting polling places. Accordingly, allowing counties to accept conditional donations would be an improper delegation of the countys sovereign authority and in violation of the Texas Constitution. Therefore, we conclude that the Legislature did not intend such an interpretation of Section 81.032 of the Local Government Code, and that the statute does not in fact authorize counties to accept conditional donations with regard to this sovereign function.
Additionally, we note that even under the situation in which donated funds were unconditional, a number of practical ethical issues would be raised. We would bring to your attention two sections of the Texas Election Code (the "Code") that might come into play if the county were to create temporary branches at a campaigns behest. First, under Section 85.062(f) of the Code, the total number of permanent branches and temporary branches open for voting in a commissioners precinct at the same time may not exceed twice the number of permanent and temporary branches open in another commissioners precinct at the same time. Tex. Elec. Code Ann. § 85.062(f) (Vernon 2002). Second, Section 85.062(e) of the Code provides that if the county establishes a "movable" temporary branch at the request of a political party, the county would have to establish a similar movable branch on the request of the other major party. Id. § 85.062(e). If a commissioners court created branches using a campaigns funds, we would suggest that they be aware of the above two sections to avoid triggering a requirement that would cause the county to have to create additional branches at county expense.
As chief election officer for the state, please be advised that the election process is one of the core functions of the county and one in which the appearance of neutrality is absolutely essential. Therefore, you should not accept donations from interested parties.
Accordingly, it is our official opinion that a county is constitutionally prohibited from delegating its authority to create temporary branches to private entities. Therefore, a county may not accept a private donation to pay for temporary branch locations with any conditions, express or implied.
We hope this has been helpful. If you have further questions, please contact our office at 1-800-252-8683(VOTE).
Prepared by Paul Miles