Untitled Texas Attorney General Opinion ( 1974 )

December 16, 1974 The Honorable Ed J. Harris Opinion No. H- 474 Chairman Elections Committee House of Representatives Re: Effect of Article 2.02(g). P.O. Box 2910 Election Code, on combining Austin, Texas 78767 or consolidating precinct voting locations for a primary Dear Mr. Harris: Your committee is considering proposed legislation and has asked us several questions concerning Article 2.02(g) of the %lection Code, the first of them being: Do the provisions of Article 2.02(g), Vernon’s Texas Election Code, apply to party primary elec- tions . . . operated . . . under the provisions of [temporary party primary legislation such as Article 13.Wc-2 et seq., Election Code ?] Article 2.02 of the Election Code reads in part: Unless a specific statute provides otherwise, the following rules shall govern the establishment of election’precincts and the designation of polling places.for the conduct of the various kinds of elec- tions held within this state. . . . (fl Primary elections. In all primary elections held by political parties for nominating candidates to be voted on at general and special elections held at the expense of the county, the election precincts shall be the courty election precincts, established by the commissioners court pursuant to Section 12 [Article 2.041 of this Code. p. 2160 The Honorable Ed J. Harris page 2 (H-474) It is our opinion, therefore, that the ~rules and ,regulations of Articles 2.01. 2.02 and 2.03 of the Election Code apply,to primary elections. These would include the provisions of Article 2.02(g) which is an amendment to the article adopted by the 60th Legislature. Acts 1967, 60th Leg., ch. 723, p. 1862, sec. 6. ‘It provides: In any election for which the election precincts are required to be those formed under the provisions of Section.12 of this code, if in any county there is no local office or proposition to be voted on by the voters of only that county or a part of that county, ~.the authority holding the election may combine any two o* more regular election precincts into consoli- ,dated precincts for such election in that part of the county having no such local office or proposi- tion to .be voted on if it appear~s that the voters inciuded within each consolidated precinct can be adequately and conveniently served at one polling place: provided, however, that there shall always be at least one consolidated precinct wholly within each commissioners precinct of the county. (Emphasis added) Your second question is: Does Artic1.e 2.02(g), Vernon’s Texas Election Code, prohibit the combining or consolidation of precinct voting locations for the party primary elections when the names of candidates for any of the offices or positions named~in Article 6.05a’, Vernon’s Texas Election Code, appear on the bal.lot in either of the precincts to be combined or consolidated? Article 6.05(a), Election Code, requires that: ps 2161 . - The Honorable Ed J. Harris page 3 (H-474) For a,ny election, general or primary, at which the district office of United States Representative, State Senator, or State Representative, or the pre- cinct office of county commissioner, justice of the peace, constable, public weigher, or precinct chairman of a political party is tombe voted on, different bal,lots shal,l be prepared for the various distric;ts or preckcts involved in the election, to differ with respect to the district or precinct offices to be voted on. The election officers for each election precint shall be furnished official ballots listing the district and precinct offices and candidates which are to be voted on by the voters in the particular election precinct, and no other district or precinct office shall beg listed thereon, so that no voter shall receive a ballot listing any district or precinct office on which he is not entitled to vote. (Emphasis added) Pursuant to Article 2.02 (f), which requires election precincts to be formed under Article 2.04 in primary elections, Article 2.02(g) is by its terms appl~icable to these primaries,. Whether precincts may be consolidated when one of the offices ennumerated in Article 6.05(a) is involved apparently depends on the “1ocal”‘nature of the ogfice. Clearly, precincts may not be consolidated in a manner which woul,d result in a voter rec:eivin,g a ballot on which an office on, which he is not entitled to vote is listed. However, the total import of the 1967 amendments to Article 2.02(g) is ambiguous. Pri.or to amendment, c.onsolidations were allowed only when “there [was] no local office or proposition to be voted on by the voters of onl,y (one] county or a part of [a] county. ” This restriction remains in the text of the amended article and there is there- fore some doubt concerning the Legislature’s inten,t in adding the language “in that part of the cou.nty havi,ng no sut:h local oEfi.ce or propositio’n to be voted on. :’ This amendatory language implies that precincts ma- be consolidated i.n a portion of a cou,nty when there i,s no local office to be voted on in that porti.on. However, the original language of the article restricts consol~idations to those counties having no local office to bc voted on by the voters in any portion of the county. Whiic: we are hot prepared to hold the statu<%operative, further Legi.slati,x;e attentiur, is needed to reconci.1.e thi.s ambi.guity. pe 2162 . - The Honorable Ed J. Harris page 4 (H-474) SUMMARY The provisions of Article 2.02(g) of the Elec- tion Code apply to primary elections,although the inconsistent nature of its provisions necessitates further clarification by the Legislature. Very truly yours, A JOHN L. HILL Attorney General of Texas APPROVED: C. ROBERT HEATH, Chairman Opinion Committee lg p. 2163