312
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
*rromm GLNIRIAL i”- _- --..,__. -. ..__.
Hon. J. M. Reiger
County Attorney
StephensCounty
Breckenridge,Texas
Dear Sir:
OpinionX0. O-7508
Re:
FZectlonheld in
orCounty Surveyor '
requestfor additionalfacts, you set forth
ic FTbuary,there was no candidate.
Is certificateto the County Clerk, .
the DemocratfcCount Chairmanmade no mention of this
officet naturally. ghe County Clerk deliveredhis -
certificates- those for the State offices,various
districtoffices,and County b:precinctoffices;asaminS
that they took care of every office providedfor, to the printer.
Hon. J. He Reiger - Pago a
(ttlo ve 81~0 thinghappemed 5.neonnectiontithanother
caunty Y 0 rice.)
The write-$a oampsign inol.udedvotes only for the
incumbsntin the offlsa for County Surveyor.
*If the wd.ta4.nvotes were valid the lncujsbemt
County Gumeyor would have been elect.& (And that is
the questioninvolved: Has the.voterths legal right to
write in tha nsme of the office,when unintentionally
e;-ed, as well OS the name of the person to be voted
0
We find that the enersl propositionof law is that the voter
m&y write the nsma of the 0$fits on Us ballot in connectionwith t,hs.
nams of the person lmom he desiresto have fill such office. 29 C.J.S.,
p* 249.
And a vOt&r,slawrite the name of the person for whom he wishes
to vote forasn offioe,I!4
ich shouldhave been but is not, on the offi-
cial ballot as voters cannotbe deprivedof their constitutionalright
by the.neg&ence of the Clerk. Sac casat cited in CentennialDigest,
P* 259.
This prOpa6ltionof lau is set forth 8 ;iffll in the case
of In-z-e
Diets, decidedby the SuprsmeCourt of c , bo R.T.S. 43.
The decisionstatss i.mpart;
W in fatita ~a anuy in the office of aldermanin
the taraaldwmafa d.iPtr2ets in questiondid erist whish
shouldhave-properlybeen filled at the elec,lonoh 1914
the faitiLrJn,
nag3.ector oktssiohof the electioaofficiais
to revlde 8 plaeo on the 0SMofal ballot for voting for
sue!l offioa,d&t sot d*pr$vo the voters ?f their t to
have the nssms of the oand%daWs for rdsozn T , and
they~vote
ti~osenames they vote upon the officisltml10~~ cawassed
and countedin favor of such persons.n
1~ snethsrowe, that of CWlough VS, Ackeqaan 64 Atlantic
964, the Xew Jersey 00~1% construeda statuted&h prodded for *eras-
ing fron his ballot sny name or names thsreonprinted.;.
or for writing
or pa&ing thereon the msme or nsmes of any person or Persons for whom
he desiresto vote for any office or OffiOeseC
Althoughour Texas statutesdo not provide.for
name or names of personsor candidateson the ballot, it !?%%e% the
--..,
c
314
Hon. J. M. Reiger - Page 3
court's constructioncould be appliedto our statuteswith regard to
writing the names of persons or candidatesfor whom the voter desires
to cast hi8 vote. In the above case the Court used the following
l=C-& 8:
*If the name of the office to be filledbe already
on the ballot, the voter'sright is to indicatehis desire '
by placingthe name of the pereonunder the name of such
office but if the name of the officehas been omitted km
the beflot the voter is not revented;by force of the
statutoryiangga&eunder consfderation,from voting to fill
such oflice,but, by terns of the Act, may write on the
ballot the name of the personhe desiresto vote for to
fill-saidoffice,where by necessaryimplicationin such
case, includesthe additionin miting of the name of the
office to be filled."
In a Texas.caseon t&Is question,State ex rel Vogler vs.
i%mcke, Al S.L. 185, the Court said:
"If the law requiredthe designationof the office
on the ballot .the failure to do so.wouldnot render the
ballot illegd, but that the ballot,like any other
written instrument,shouldbe examinedand construedin
the light of the attendantoircuaetances, 60 aa to aacer-
tafn the intentionof the voter in connectiontherewith."
Therefore,in view,of the authorities,It is our opinion?
that in the absenceof frau#, said votes cast in the general election
would be legal end could be counted.
Fe will furthernote in this conuection,Article XVI, Sec.
17 of the Constitutionof Texas,.wbichprovides: _.
“All officersi&thin this State Shall COntinUe t0
perfom the dutiee of their officeauntil their euocessore
shall be duly qualified.n
>;etrust that the foregoinghas fully answered your inquiry.
Very truly yours