Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from October 10, 2016 through November 10, 2016. 

Opinion No. KP-0118 (Elections):  Through Title 7 of the Election Code, the legislature has established separate procedures for counting the ballots and processing early voting returns. Section 87.021 of the Election Code requires that early voting clerks deliver secure ballot boxes to the early voting ballot board. Section 87.062 then requires the early voting ballot board to count the ballots and prepare returns.

Section 33.061 of the Election Code makes it a Class A misdemeanor for a person serving in an official capacity at a location at which the presence of watchers is authorized to prevent a watcher from observing an activity the watcher is entitled to observe. Title 14 of the Election Code establishes procedures for an election contest if the true outcome of the election is in dispute due to an election officer or other person officially involved in the administration of the election: (A) preventing eligible voters from voting; (B) failing to count legal votes; or (C) engaging in other fraud or illegal conduct.

Opinion No. KP-0117 (Municipal Water District):  A court would likely conclude that member cities of the North Texas Municipal Water District (district) have implied authority to fill a vacancy occurring on the district’s board of directors prior to the end of a director’s term to the extent that doing so is necessary to maintain the position filled. But if a sitting director is able to serve until his successor is appointed and qualified, we find no authority from which could be implied the power of a member city to remove a district director, with or without cause, prior to the end of the director’s term.

Opinion No. KP-0116 (Establishment Clause):  Under Section 381.004 of the Local Government Code, a commissioners court may expend county funds on holiday lights and decorations on county buildings and facilities, and may expend county funds to contract with or donate to a local county literacy program, to the extent that such expenditures serve purposes specified in the statute. Whether a particular expenditure serves a purpose specified in Section 381.004 and meets the requirements of Article III, Section 52(a) of the Texas Constitution is for the commissioners court to determine in the first instance, subject to judicial review. A court would likely conclude that such a holiday light display is not a violation of the Establishment Clause.

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