The Attorney General of Texas
July 10, 1978
JOHN L. HILL
Attorney General
Honorable Lynn lngalsbe Opinion No. H-1207
Criminal District Attorney
Taylor County Courthouse Re: Whether canvassing board
701Commerce.
suite200 Abilene, Texas 79602 may order recount of ballots
DalIa%
TX.75202 in local option election.
214,742~8944
4824Alberta
Ave.,
suite160
ElPaso,TX.799% Dear Mr. Ingalsbe:
9151533-3484
At the instance of the Commissioners Court of Taylor County sitting as
a canvassing board, you request our opinion concerning whether the
canvassing board has authority to order a recount of the ballots in a recent
local option election in which paper ballots were used.
The Commissioners Court met as a canvassing board under section
251.51 of the Alcoholic Beverage Code. A group of citizens requested a
recount of ballots at that time. Your office advised the board that neither
the Election Code nor the Alcoholic Beverage Code authorized the board to
order a recount. In your brief of the law submitted with your request as
required under article 4399, V.T.C.S., you conclude that there is no legal
authority for the commissioners court sitting as a canvassing board of such an
election to recount the ballots.
Upon receipt of your request we referred the question to the Secretary
of State. Article 1.03 of the Election Code designates him the chief election
officer of the State, and gives him the responsibility of insuring the uniform
interpretation and application of the election laws. See Attorney General
Opinion H-407 (1974) (establishing policy of referral of -6&tion law questions
Affirmative Action Emplop=,^_ -
to Secretary of State).
Honorable Lynn Ingalsbe, - page 2 (H-1207)
The Secretary of State has advised us by his letter of June 30, 1978, that in
his opinion there is no legal authority for the commissioners court sitting as a
canvassing board of such an election to recount the ballots.
As you and the Secretary of State conclude, the law is clear that the
canvassing board has no power to order a recount. The board’s only authority in
this election is to ascertain that the papers submitted as election returns are in the
correct form and properly authenticated by the proper officers, and to compile the
votes shown on the face of the returns and declare and certify the result
ascertained.
In Perguson v. Huggins, 52 S.W. 904 (Tex. 1932), the Texas Supreme Court
discussed the limited powers and duties of a canvassing board and quoted authority
for certain “elementary rules of law” as follows, at pp. 905-906:
It is settled beyond controversy that canvamers cannot go
behind the returns. The returns provided for by law are the
sole and exclusive evidence from which a canvassing board
or official can ascertain and declare the result. . . .’
The authorities likewise hold that, in the absence of a
statute conferring it, a board of canvassers has neither
express nor implied power to recount the ballots. . . .
The supreme court reiterated these elementary rules of law in Grant v.
Ammerman, 437 S.W.2d 547 (Tex. 1969). The court held that canvassing the votes
of an election is a ministerial function and that in the case before them, the
commissioners court sitting as a canvassing board “did not have the power to go
behind the election returns.” The court said it has been held that a canvassing
board “may not supplant statutory procedures for the contest of an election.” -Id. at
549-550.
There is no statute in either the Election Code or the Alcoholic Beverage
Code which authorizes the commissioners court to conduct a recount In a local
option election conducted with paper ballots. A district judge may order a recount
upon petition of 25 voters when an electronic voting system is used. Blec. Code
art. 7.15. A “recheck and comparison of the results” in the presence of a district
judge and the county judge may be requested when voting machines are used. Elec.
Code art. 7.14, SS 19, 19a. A recount at the request and expense of a candidate is
authorized when paper ballots are used in an election for a public office. Elec.
Code art. 9.38a. Each of these statutes sets out elaborate procedures specifying
who may request a recount or the number of voters required to request it, to whom
and when the request must be made, the grounds for a request, and how the costs
involved are to be paid. The procedures differ substantially among the several
P. 4844
Honorable Lynn Ingalsbe - page 3 (H-1207)
provisions. None is applicable to the type of election before us. While the law may
be inconsistent or incomplete in this regard, such arguments are properly addressed
to the legislature. They have no bearing on what the law is at this time.
We concur with the legal conclusion reached by you and by the Secretary of
State. In our opinion it is clear that there is no statutory authority for the
commissioners court sitting as a canvassing board under section 251.51 of the
Alcoholic Beverage Code to order a recount of the ballots in this local option
election. An election such as this may be contested in the manner set out in article
251.55 of the Alcoholic Beverage Code after the results are declared by the
canvassing board. Ellis v. Vanderslice, 486 S.W.2d 155 (Tex. Civ. App. - Dallas
1972, no writ). See also Rlec. Code, ch. 9.
SUMMARY
The commissioners court, sitting as canvassing board under
section 251.51 of the Alcoholi,c Beverage Code, has no legal
authority to order a recount of paper ballots in a local
option election.
Very truly yours,
Attorney General of Texas
APPROVED:
L
Opinion Committee ’
P. 4845