Municipal Corner

Anonymous voted ballots are public information and available for inspection; however, personally identifiable information contained in election records remains confidential. Tex. Att’y Gen. Op. No. KP-411 (2022).

State Senator Kelly Hancock and State Representative Matt Krause submitted a request to the Office of the Attorney General asking whether a legislator or a member of the public could inspect or obtain copies of anonymous voted ballots. Anonymous voted ballots is defined as voted ballots that have been redacted to withhold any information that could be used to reveal the identity of the voter.

The Attorney General examined applicable sections of the Texas Constitution and Texas Election Code in its analysis of the question presented. The Attorney General first acknowledged that anonymous voted ballots are election records under the Election Code, and the Legislature has established procedures aimed at both preserving those records and granting public access to them.1 Thus, members of the public and legislators may inspect or obtain copies of anonymous voted ballots during the 22-month preservation period following an election.

The Attorney General also confirmed that personally identifiable information contained in election records that could tie a voter’s identity to their specific voting selections remains confidential and is excepted from public disclosure. Such confidential information included on an anonymous voted ballot must be redacted prior to disclosure in order to protect the constitutional right to a secret ballot.

1 The Attorney General noted the following: “[u]nder Section 66.058 of the Texas Election Code, anonymous ballots must be held in a locked ballot box during a 22-month preservation period, with entry only as authorized by the Election Code. Section 1.012 establishes these ballots as public information and requires the election records custodian to make the ballots available to the public. By expressly requiring the custodian to provide public access to such records, the Legislature authorized entry into the locked ballot box for such purpose during the 22-month period.”

The Attorney General declines to predict with certainty whether a court would conclude that the Legislature equates the term “salary” with “compensation” under Article XVI, subsection 40(b) of the Texas Constitution. Tex. Att’y Gen. Op. No. KP-0414 (2022).

The Honorable Dee Hobbs, Williamson County Attorney, submitted a request for an Attorney General Opinion regarding whether “salary” for purposes of Article XI, subsection 40(b) of the Texas Constitution differed from “compensation” in the City of Hutto’s Charter (Section 3.04). The request for an opinion also asked whether the Hutto City Council could construe by ordinance the compensation amount in its charter to be the actual minimum necessary amount for the performance of the duties of public office related to regular council meeting attendance.

Article XVI, subsection 40(b) expressly permits a state employee or an individual who receives compensation from the state to serve as a member of the governing body of a city but prohibits the person from receiving a salary for the latter unless the person receives compensation from the state for work performed in certain capacities. The Attorney General noted that due to the multiple possible meanings of these two terms, the Attorney General could not predict with certainty whether a court would conclude the Legislature equates the term “salary” with “compensation” in subsection 40(b).

Ultimately, the question as to whether the per meeting payment provided under section 3.04 of the Hutto City Charter may be construed to constitute the reimbursement of expenses rather than “salary” for purposes of subsection 40(b) was left to the discretion of appropriate City officials, subject to judicial review. For municipalities or other governmental bodies facing similar issues, the Attorney General provided a helpful framework for statutory interpretation based on the “guiding principle” that interpretation should “give effect to the intent of the voters who adopted it.”

The Texas Water Code does not authorize a representative of a limited liability company to vote in an election for a water control and improvement district. Tex. Att’y Gen. Op. No. KP-0415 (2022).

In Maverick County, Texas, a limited liability company owns irrigable farmland and ranchland within the boundaries of Maverick County Water Control & Improvement District No. 1 (the “District”) and receives water services from the District. A representative of said company attempted to register to vote in the District’s elections. The Honorable Jaime A. Iracheta, a Maverick County Attorney, submitted a request for an Attorney General Opinion regarding whether a representative of a limited liability company was eligible to vote in an election conducted by the District in which property owned by the company was located.

The Attorney General first discussed the requirements under Section 51.221 of the Texas Water Code that authorizes a person who meets certain qualifications to vote in an election conducted by the District. After discussing the statutory language, which referenced a “person” or “individual” as someone eligible to vote in a district election, the Attorney General concluded that a court would likely interpret Section 51.221 as not authorizing the representative of a limited liability company to vote on behalf of the company in an election conducted by that District.

Finally, the Attorney General stated that to vote in such an election for a water control and improvement district under Chapter 51 of the Texas Water Code, a person must meet the eligibility requirements of Section 51.221 in the person’s individual capacity. This Opinion is a helpful clarification for political subdivisions and other governmental entities located in areas of increased development and population growth, where real property is commonly owned by private entities.

“Municipal Corner” is prepared by Kathryn Thiel. Kathryn is an Associate in the Firm’s Districts and Water Practice Groups. If you would like additional information or have questions related to these or other matters, please contact Kathryn at 512.322.5839 or kthiel@lglawfirm.com.