Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from October 11, 2017 through November 13, 2017.

Opinion No. KP-0172 (Incompatibility Doctrine): The common-law doctrine of incompatibility does not prohibit two individuals appointed to the positions of county budget officer and assistant budget officer from serving in those positions because of their simultaneous employment as employees of the county judge and the county commissioners court, respectively.

Whether the participation of the county judge and a commissioner in department meetings with the county budget officer and the assistant budget officer constitutes the preparation of the budget contrary to Chapter 111, Subchapter C is a question of fact.

Opinion No. KP-0171 (Collecting HOA Dues): A type A general-law city does not possess the authority to collect dues on behalf of a homeowners association. 

Opinion No. KP-0170 (Elections): Subsection 121.003(12) of the Election Code defines “direct recording electronic voting machine” as “a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically.” Voting machines that produce marked paper ballots will qualify as direct recording electronic voting machines so long as they meet all statutory requirements.

The legislature authorized direct recording electronic voting machines as a type of voting system established under Title 8 of the Election Code. It defined “voting system” as “a method of casting and processing votes that is designed to function wholly or partly by use of mechanical, electromechanical, or electronic apparatus,” thereby acknowledging that voting systems may encompass more than a single piece of equipment. Furthermore, the legislature defined “voting machine” in Election Code Subsection 121.003(3) as “an apparatus on which voters cast their votes, that records each vote, and that furnishes a total of the number of votes cast for the candidates and for and against the measures.” A common meaning of the term apparatus is “a set of materials or equipment designed for a particular use.” Thus, a court would likely conclude that the legislature did not intend to limit direct recording electronic voting machines to only those machines that operate using a single piece of equipment.

To participate in the countywide polling place program, a county must, among other requirements, use direct recording electronic voting machines. That a voting machine produces a marked paper ballot or includes multiple pieces of equipment that operate together to effectuate direct voting does not disqualify the machine from use in a countywide polling place program so long as the voting machines meet the other requirements of a direct recording electronic voting machine.