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
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Untitled Texas Attorney General Opinion
Combined Opinion