,
The Attorney’ General of Texas
JIM MATTOX April 4, 1986
Attorney General
Supreme Court Building Honorable Clint H~.ckuey Opinion No. JM-467
P. 0. BOX 12548 Chairman
Austln, TX. 73711- 2543 Committee on Elections Re: Location of polling places
512/475-2501
Texas Rouse of ReFresentatlves and residency requirements for
Telex 9101874.1387
Telecopier 512/4750286
P.O. Box 2910 election judges in city council
Austin, Texas 78769 election
714 Jackson, Suite 700 Dear Representative Hackney:
Dallas, TX. 75202.4506
21417424944
You ask two questions about an election for members of the Alvin
City Council scheduled for April 5, 1986. The city is under a federal
4824 Alberta Ave.. Suite IS0 court order to ceme at-large election of city council members and
El Paso. TX. 79905.2793 adopt a plan that includes the election of five city council members
915/533-3484 by district and mro at large. The city is phasing in the new plan.
You inform us that the city council has named election judges who
1001 Texas. Suite 700 not reside in the diistrictto which they are assigned. Moreover, the
Houston, TX. 770029111 city has not established a'polling place in each district which will
713l223.5886 cl&t a city councilman.
You request an opinion on the following questions:
805 Broadway, Suite 312
Lubbock, TX. 79401-3479
806/747-5235 1. In a municipal election, does the election
of a couucil member from a district require that
the polling place be located within the district?
4309 N. Tenth, Suite S
McAllen, TX. 78501-1885
512lSS2-4547 2. In a municipal election, does the law
require t:hat the election judge be a registered
voter :iiving within the boundaries of the
200 Main Plaza, Suite 400
district?
San Antonio, TX. 78205.2797
51212254191
We cannot pn>vide an exhaustive answer to your first question.
Whether the polling places were designated for the April 5 election
An Equal OpportunityI compliance with the Election Code depends in part upon the facts.
Affirmative Action Employer Some facts have been submitted to US, but an Attorney General Opinion
may not make the .additional fact findings necessary to a complete
answer to this quc:stlon. Moreover, the requirements of the Federal
Voting Rights Act, .42U.S.C. 61971, et seq., are also relevant to your
inquiry. The requirements of this act may in some cases prevail over
the provisions of state law. We lack sufficient information about
court orders issued under the Voting.Rights Law that would modify the
application of Election Code provisions to this election. See, l .g.,
Attorney General Opinion MW-350 (1981). However, the court order
which the city is subject will.control its duty with respect to this
Honorable Clint Eackuey - Pape 2 (J-M-467)
particular election. We w:X discuss the relevant provisions of law
to provide some guidance to you.
With this caveat. we 'turn to your first question. Under the
Election Code, the precinct, and not the city election district, is
the geographical unit withi,nwhich a polling place is established. A
single polling place is to be located within each precinct. Elec.
Code 543.001. The city comcil has authority to determine where the
polling place will be located within the precinct. Elec. Code
143.004; see Elec. Code §1.005(13) (defining "political subdivision"
to iuclud= city).
The city council also has some authority to establish election
precincts for city council elections. but the city's election pre-
cincts "may uot divide a county election precinct except as necessary
to follow the city's bomiary." Elec. Code 042.061(c). Thus, the
city's election precincts arc virtually determined by the county's
election precincts established pursuant to the Election Code. -See
Attorney General Opinion H-2:32 (1974).
The commissioners court is to divide the county into "compact and
contiguous" election precincts. Elec. Code 142.001. Section 42.005
of the code establishes rho relationship betweeu county election pre-
cincts and single member districts for the election of city qouucil-
mm:
(a) A county election precinct way Dot contain
territory from mre than one of each of the fol-
lowing types of territorial units:
(1) a comissioners precinct;
(2) a justice -precinct;
(3) a congressional district;
(4) a state representative district;
(5) a state seaatorlal district;
(6) a ward in a city with a population of
10,000 or:=; or
(7) a State Board of Education district.
. . . .
(c) In this section, 'ward' means a territorial
unit of a city, regardless of its designation under
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Honorable Clint Hackney - L'age3 (JM-467)
from which a aember of the city's gover-
other law. --
ning body is elected by only the voters residing in
the territorial &t
--* (Emphasis added).
Elec. Code 42.005.
The Election Code aulhorizes the commissioners court to change
the boundaries of county Ktection districts to make them conform to
city election districts. See Elec. Code §S42.031-42.035. You have
not informed us whether tlG?county has attempted to change election
precinct boundaries to accommodate the new city election districts, or
whether there was sufficient time between the issuance of the court
order and the April 5 electIon date to fulfill the statutory require-
ments for changing a boundary. -See Elec. Code 542.003(b).
Moreover, the Federal Voting Rights Act, 42 U.S.C. 91971 et seq.,
might prevent the commissioners court from complying with Election
Code deadlines in changing an election precinct boundary to conform to
a new city election district. Changes in election precinct boundaries
and in the locationsof polling places are subject to praclearance by
the Attorney General of the United States. 42 U.S.C. 81973c; Perkins
v. Matthews, 400 U.S. 379, 380-83 (1971); County Council of Sumter
County, South Carolina v. United States, 555 F.Supp. 694 (D.C.D.C.
1983); Eeggins v. City of-Dallas, 469 F.Supp. 739, 740 (N.D. Texas
1979); see Attorney General Opinion MW-350 (1981). See also Acts
1985, 69thLeg., ch. 340, at 2589 (county election precincts are not
required to conform to &ty election districts if compliance is
impracticable because of a federal court order).
To suamlarise, author,ity rests with the county commissioners
court, and not the city council, to redraw election precinct lines to
conform with city wards 01: election districts. See Attorney General
Opinion E-282 (1974). We cannot determine whxer the statutes
discussed prevent or excuss the county from redrawing the precinct
lines in time for the April 5 election; the application of those
statutes to a specific case requires the investigation and resolution
of fact questions.
The city council Is required to locate the polling place within
the established election ,precinct, and voters are required to vote
within the precinct in which they reside. Elec. Code 111.003;
Harrison v. Jay, 271 S.W,:!d 388, 389 (Tex. 1954). Election laws,
however, are construed as directory in absence of fraud or a mandatory
provision which requires voiding a ballot for failure to comply with a
statute. Thomas v. Groebl. 212 S.W.2d 625, 630-31 (Tex. 1948);
Statler v. Fetzer, 630 S.lr2d 782. 783-84 (Tex. Civ. App. - Houston
‘[lst Dist.] 1982, writ dism'd). Election law provisions which relate
to voters are more readily construed as directory than those relating
to candidates. Branaum v. Patrick, 643 S.W.2d 745, 749 (Tex. Civ.
APP. - San Antonio 1982, ntrvrit).
p.~.2139
Honorable Clint Hackney - I'age4 (JM-467)
The courts have in nest cases strictly construed the section
11.003 reauirement that al:L voters vote in the orccinct in which thev
reside. &rrison v. Jay, ~271 S.W.2d 388, 389' (Tax. 1954); Greater
596, S.W.2d 597,
uniga v. Almaraz,
514 S.W.2d 331. 334 (Tex. Civ. App. - San Antonio 1974. no writ).
There are, however. exceptions to the strict construction of this
provision. En parte White, 28 S.W. 542, 544 (Ten. Cria. App. 1894);
Anderson v. Crow, 260 S.W.2d 227, 233-34 (Tex. Civ. App. - Austin
1953, wand. overr.); Attorney General Opinion O-1303 (1939).
You next ask whether zhe law requires that the election judge in
a municipal election be a registered voter living within the
boundaries of the district. Chapter 32 of the Election Code deals
with the appointnent and qualifications of election judges. The
provisions of a home rule city charter supersede or supplement some of
the code provisions. See SLec. Code 5532.011. 32.035, 32.056. Alvin
is a hone rule city anms charter provisions on elections will have
to be read together with the Election Code.
Sections 32.051 through 32.056 of the Election Code govern
eligibility requirenents :Eor election judges. These provisions
constitute subchapter C of chapter 32 of the Election Code. Sectlop
32.051 provides as follows:
(a) Except a:~ provided by Subsection (b), to
be eligible to :@ve as a judge of an election
precinct, a person must be a qualified voter of
the precinct.
(b) If the suthority making an energency
appointment of s. presiding judge cannot find an
eligible qualified voter of the precinct who is
willing to accept the appointment, the eligibility
requirement for a clerk prescribed by Subsection
(c) applies.
(c) To be eligible to serve as a clerk of an
election precinct, a persou nust be a qualified
voter ;
. . . .
(3) of the political subdivision. in an
election ordered by an authority of a political
subdivision othsr than a county. (Emphasis
added).
A hone rule city charter aay prescribe eligibility requirements or
grounds of ineligibility in addition to those prescribed in sub-
chapter C for election officers serving in elections ordered by an
p. 2140
Honorable Clint Hackney - l'age5 (JM-467)
authority of the city. Elec. Code 932.056; see 6532.052 (public
officer ineligible); 32.053 (candidate for publicoffice Ineligible);
32.054 (relative or employc~sof candidate ineligible). Under section
32.051, the person appointed as a city election judge must be a
qualified voter of the p:cecinct, unless he is appointed under the
emergency provision. Section 32.007 of the Election Code defines an
"emergency appointment" mier chapter 32:
(a) If neither the presiding judge nor the
alternate presidtng judge can serve in an election
and their inabil:ttyto serve is discovered so late
that it is impr,xticable to fill the vacancy in
the normal msnmx, the presiding officer of the
appointing authority or the authority if a single
officer shall appoint a replacament judge to pre-
side at the eleckton. If the appointing authority
is unavailable, the authority responsible for
distributing the supplies for the election shall
appoint the replacement judge.
Elec. Code 032.007. Under the circumstances described here, the city
may appoint a qualified 'voter as election judge, subject to other
eligibility provisions in the city charter applicable to an anergeacy
appointee. Whether an orJer under the federal Voting Rights Act
affects the operation of lkese provisions at the April 5 election in
Alvin is a question beyond ,thescope of this opinion.
SUMMARY
Section 43.004, of the Election Code provides
that a polling .place for a mutiicipal election
should be located within the election precinct.
Section 32.051 af the Election Code requires that
the election jwlge be a registered voter of the
election precinct he serves as judge. Section
32.051 of the E:lection Code also provide for
appointment of 8 registered voter in an emergency
as defined by section 32.007 of the Election Code.
The provisions WE the Federal Voting Rights Act
may in some casfw prevail over the provisions of
the Texas Election Code.
Very truly you s
.
J-k
JIM MATTOX
Attorney General of Texas
JACX EIGHTOWER
First Assistant Attorney General
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Honorable Clint Eackney - I'rge6 (JM-467)
MARY KELLER
Executive Assistant Attormy General
ROBERT GRAY
Special Assistant Attorney G.eneral
RICK GILPIN
Chairman, Opinion Coumittec!
Prepared by Susan L. Garrhon
Assistant Attorney General
p. 2142