Untitled Texas Attorney General Opinion

November 1, 1968 Honorable Henry Wade Opinion No. M- 302 District Attorney, Dallas County Dallas County Government Center Rer Interpretationof various Dallas, Texas 75202 sections of the Texae Election Code, Articles 7.15, 7.07, 3.08 and Dear Mr. Wade: 3.09a. In your request for an opinion you state the follow- ingr *We have this date received a letter from the Dallas County Elect4on Board asking that ws request your written opinion on nuinber-: ous questions which have arisen under the Texas Rlectlon Code, as followsr #Art. 7.15. Subdivision 13 "1. Does the.Texaa Eiection Code permit the presence, either part-time or full time, of any other than the following pereone within 100 Pt. of the polling place during the hours of 7rOO.A.M. through 7100 P.M. on Election Day? 'A. Election itudge, Assistant Judge, and Clerks of the Rlection. lB. Poll Watchers. *c. Machine Repair personnel requested by the Election Judge for the purpose of re- pairing voting machines. *D. Voters. "Art, 7.15. Subdivieion~14 .’ Hon. Henry Wade, page 2 m-302) l2. Is it within the authority of County Co nmissfo nerCourt s~ to assign personnel who are not officlale ,of the Election aa in- structors in the operation of voting machines within the polling place during election hours for a general or special election7 “Art. 3.0 l3. Does the Conmiesioners' Court have au- thority to expend public funds in the sum of S?S,OO.per day plus expenses for a 'Voting Machine Consultant' when election officials are restrictedby law to maximum pay in the sum'of $1.25 per hour for their services7 'Art. 7.15. Subdivision 19 (c). ‘4. Are two election officials required in the delfv= of ballot containers to central counting station? lArt. 7.15. Subdivision 20 (f) “5. Is the presiding fudge required to re- main at the central counting station until the votes from his precinct have been com- ,pletelycounted and write-in votes tallied? WArt. 3.09a “6. Ie,i$ within'the auihor’iW”of Co&ty Conmissioners'Court tb conduct'schools of instructionfor EleCtipn Officers under the direction of persona other than the County Clerk and without notice required by this Article? *Art. 7.07 ‘7. Is it within the purview of County Com- missioners~ Court authority to provide election -1469- Hon. Henry Wade, page 3 (M-302)' supplies the provision of which Is charged by this Artfcle to the County'ElectlouBoard? Specifically,cznthe Court place orders for 225,000 white ballot cards, .225,000yellow demonstrationqards, 1,400 ballot.boxes,write- in envelo8es,.servicefor'punching'overlay ndsks, printing of.officlal'candidatepages, preparation of precinctkits,.and ~computer programingwithout concurrence or participation by County Blection Board?'' “Art. 7.15. -Subdivision20 /'. : '*8. Under what foreseeable"circumstances is an improperly punched ballot'not valid for counting purposes7 Whose is the responsibility' for determinationof validity of irregular ballots?" .Questions1 and.2 The Election Code of Texasdoes not prohibit persons from being within 100 feet of the polling places except persons who are electioneeringor loitering. Articles 8.02 and 8.27, Election Code. A public street or public building may be within said 100 feet area. fn additionsto those named in your ques- tion, the persons who may legally be in the poLling place are (1) a person tihoIs to'assista voter with a bodily infirmity (Article 7.14, Section 15, and Article 7.15, Subdivision 14, Election Code), (2) an interpreter (Article8.13a, Election Code), and (3) persons admitted by the presidingjudge to preserve order (Article8.17; Election Code)~. Also, it is clearly within.the'intentof Article 7.15 that necessary per- sonnel, including instructorson.the proper use of the mechanical system adopted;may be permittedwithin the polling'place. Iiow- ever, while the special'instructors“may be present in the polling place, unless'these instructorsare election *officers,* they should only answer questions of the election officials and not directly instruct the'voter. Article 7.15, Subdivision 13. Question 3 The County CommissionersCourt necessarilyhas the - 1470 - &in. Henry Wade, page 4 w-303) implied authority to.pay a reasonablesum for the employment of a avoting.a\achlneconsult+" .toassist,in the installation, operation and instruction .ofprooeduresof the voting equipment and automatic tabulating equipment. Article 7.15, Subdivision 8, Election Code. It is,clear that~a Conmissioners Court has (I . . .implied.authorityto do-what may be necessary in the ex- ercise of the duties or powers expresely.conferred-onit. . . .a 15 Tex.Jur.26 266,.Counties,Sea. 37, and Cases there cited. duestlon 4 TWOauthorized election officialsare expressly re- quired to deliver the ballot containersto the central counting station by Article 7~.15,,~Subdivision 19(c) of the Election Code. There is an alternative method of deliveryhowever, provided by Article 7:1,5,Subdivision'19.(d). .Question5 We find no provision in the Election Code requiring the presiding judge to remain at the central counting station until the votes from his precinct have been completely counted and write-in votes tallied. We are not at liberty to construe the Code so as to add such a requirement. . Subdivislon 20(f) of Article 7.15 requires the presidingjudge to perform ceftain duties after the votes have been tabulated in the can- tral c.ouatingstation 80 he would have to return if he did not remain while,the ballots were being counted. Question 6 Article 7.14, Section ii,. and Articie 7.15,'Sub-: division.lO of the Election Code, ,authoriaethe authority holding the election to cause to be held not less than 3 days before anyelection a public school of instructions on the use of voting machines and electronicvoting systems, respectively, for those who will conduct the election, such schools to be open.to any interestedperson. Notice of the meeting shall be given to the public press at.least 48 hours before it is.to be held. -1471- Hon. Henry Wade; page 5 (W-302) : Question 7' Article 7.07 of the Election Code provides that the County Blection Board shall provide the supplies necessary to hold and conduct the election. .'TheCounty Blection.Board,not the Comnission~rsCourt should order and providesthe supplies. However, if the County Election Board fails to furnish,the nec- essary supplies, the County ConmiasioneraCourt may legally furnish same. A'rticle7.68 of the Election Code. It is the duty of the Co+ssioners Court to provide the funds to pay for the necessary supplies ordered by the Election Board. . .~ Question 8 ', The first sentence IuQuestion 8 is so uncertain, indefinite and speculativethat it cannot be answered. In answer to your second sentence in'Question 8; you are advised that the presidingjudge in each precinct has the responsibility of determining.thevalidity of irregular ballots. (Article 3.02 and Article 7;15, Subdivision 19(a),'of the Eledtion Code) and, in this connection,whether the.intent of the voter is "clearly ascertainable*from the ballot. This.is a decision left to the discretion of the election judge, and to the extent that such intent is not clearly ascertainable, the irregularballot for the race or races in questiorishould not be counted. .SeeAt- torney General'OpinionNo. U-284 (1968). "Irregularballots* within the meaning of Section 16 of Article 7.14 shall be counted, hmever, and shall be'delivered witha copy of the canvass to the County Clerk. Attorney.GeneralOpinion No. WW-1325 (1962). ... _' SUMMARY I . 1.'~~ Personswho are electioneeringor loitering are pt'ohibitea.frombeing-withiri 100 feet of the pollxng piaces. Article 8.02 and 8.27, Blection Code of Texas; 2.It is within the intent of Article 7.15 that necessary personnel, including instrudtorson the.proper use of the system - 1472 - Hon. Henry Wade, page 6 (H-303) adopted, may be permitted within the polling place. However, while the special instructors may be present in the polling place, unless they are election *officers,* they may only answer question8 of the election officials and .notdirectly instruct the voter. Article 7.15, Subdivision13. 3. The County Commissioners Court has the ixplied authority to pay a reasonable. 'sumto a *voting machine consultant.* Article 7.15, Subdivision 8, Election Code of Texas. 4. 'Rnoauthorized election officialsare required to deliver theYballot containersto the central counting station by Article 7.15, Subdivision19(c) 0f:the Election code. 5’. The presiding judge is not required to remain at the central counting station until the votes from his precinct have been tabulated,but he has duties to perform after such tabulationhas.been completed and must then,be at the central counting rtation. Ar- ticle 7.15, Section 20(f) of the ElectionCode. 6. The County CoamisrionerrCourt haa the authority to conduct schools of instruc- tion for election officers. Article 7.14, Sec- tion 11, and Article 7.15, Subdivision10, Election Code. 7. The County Blection Board is author- ised to provide the supplies necessary to hold and conduct the election. Article 7.07 of the Election Code. If the County Blection Board fails to furnish such supplies, the County CommissionersCourt may furnish same. Article 7.08 of the Election Code.~ 8. The presiding judge in each precinct has the responsibility of determiningthe -1473- Hon. Henry Wade, page 7 W-302) validity of irregularballots. Article 3.02 and Article 7.15, Subdivision 19(a) of the Election Code. . Prepared by Jack Sparks Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman John Reeves Bill Craig Alfred Walker John Grace A. J. CARURBI, JR. Executive Assistant - 1474-