Untitled Texas Attorney General Opinion ( 1962 )

THEATTORNEY GEXERAL
OF TEXAS
A-GRNEY GENERAL
April 16, 1962
Honorable Charles J. Lieck, Jr. Opinion No. WW-1311
Criminal District Attorney
Bexar County Courthouse Re: Whether the Commissioners
San Antonio 5, Texas Court of Bexar County may
authorize the use of vot-
ing machines for one poli-
tical party at a primary
election, and the use of
paper ballots for another
Dear Mr. Lieck: political party.
You have asked the following questions:
“1. Can the Commissioners Court of Bexar
County authorize the use of voting
machines for one of such parties at
the Primary Election and the use of
paper ballots for the other of such
parties?
“2. If such use cannot be so authorized,
may the Commissioners Court authorize
the use of voting machines for both
parties at the populous voting pre-
cincts of the county and paper ballots
for both parties in the less populous
precincts?”
you have further stated in your letter:
“It is the opinion of the Commissioners
Court as expressed by formal resolution of
such court that the number of voting machines
owned by Bexar County is insufficient to pro-
vide each party with voting machines in each
precinct in Bexar County; that the expense
to be Incurred In the purchasing, servicing
and storing of additional voting machines is
prohibitive; that there is insufficient time
to procure such machines for use in the Pri-
mary Election. We add that no provision has
been made in the 1962 budget for the rental
or additional purchase of voting machines.
“The Commissioners Court of Bexar
County, Texas, in 1941, adopted voting
machines for use in elections insaid
Honorable Charles J. Lieck, Jr., Page 2 Opinion No. WW-1311
County, at which time 300 machines were
rented from the Automatic Voting Machine
Corporation and which machines were sub-
sequently purchased from such company.
Since that time Bexar County acquired
additional voting machines and now owns
448 of such machines, 441 of which are
in good working order, ready for use in
such Primary Election.”
Sec. 3, Art. 7.14, Texas Election Code, reads in part as
follows:
“The Commissioners Court of any
county in the State of Texas may adopt
for use in elections and primary elec-
tions in at least three (3) of the lar-
ger voting precincts In voting strength
in said county, any~ kind of voting ma-
chine approved bg~ the Secretary of
State and may adopt such voting machine
at any time for use in such additional
voting precincts In the county as it
may deem advisable and thereupon such
voting machines shall be used at any
and all elections and primary elections,
municipal, county, district, or state
held in that county or any part thereof.
. . . L Emphasis added_/
Art. 7.14, Texas Election Code is derived from Art. 2997a,
V.C.S., which latter article was repealed upon passage of the
Texas Election Code. Art. 2997a, V.C.S. was enacted In 1930, Acts
4lst Leg., 4th Called Session, Chap. 33, page 60. Sec. 3, Art.
2997a, V.C.S. is the basis for Sec. 3, Art. 7.14, Texas Election
Code. Sec. 3, Art. 2997a, V.C.S. was amended in 1937, Acts 45th
Leg., 2nd Called Session, Chapter 52, page 1953. In the original
version of Sec. 3 of Art. 2997a, V.C.S. in 1930, and as amended
in 1937, and as It appears today in Sec. 3, Art. 7.14, Texas
Election Code, are found the following words:
!I . and thereupon such voting
machine shall be used at any and al~l
elections and primary elections, muni-
cipal, county~, district or state held
in that county or any part thereof. . . .’
This office, lr Attorney General’s Opinion No. WW-55, was
asked whether the Commissioners Court of Rusk County could dis-
pense with the use of ioting machines in a forthcoming Special
r -
Honorable Charles J. Lieck, Jr., Page 3 Opinion No. WW-1311
Senatorial Election, and use paper ballots instead, where the
Commissioners Court had previously adopted
- . . the use of voting
machines as provided by Statute. Tne oplnlon, after citing
Sec. 3, Art. 7.14, Texas Election Code, and underscoring the
words quoted above, held:
“On the basis of the foregoing
statute the Commissioners Court of Rusk
County Is not authorized to dispense
with the use of voting machines at the
forthcoming special Senatorial election
and use paper ballots in lieu thereof.
However, the Commissioners Court would
have authority to rescind its previous
order adopting voting machines and there-
after paper ballots could be used at all
special, primary, and general elections
held in Rusk County.”
We understand from your letter that the Bexar County Commis-
sioners Court in 1941 order the use of voting machines in all pre-
cincts of the county. The use of paper ballots by one political
party in its primary election would not comply with the statute
which requires the use of such voting machines at any and all elec-
tions and primary elections. Certainly, there should be no dis-
crimination between political parties in the use of voting machines.
We hold, in answer to your first question, that the Commissioners
Court may not authorize the use of voting machines by one political
party and the use of paper ballots bye another political party in
conducting their respective primary elections.
In answer to your second question, we would like to point
out that under the order of the Commissioners Court now in force,
all parties must use the voting machines in the primary elections
in all precincts. However, as held in Opinion No. WW-55, the
Commissioners Court may rescind its previous order directing the
use of voting machines in all precincts. Wnen that is accomplished,
the county is back where it started, using gaper ballots in all
precincts for all types of elections. We see no reason why,the
Commissioners Court may not thereafter avail itself of the provl-
dons of Sec. 3, Art. 7.14, Texas Election Code, and adopt the
use of the machines in as many precincts as the county has machines
available for both political parties. This will leave all pre-
cincts not affected by the last order still using paper ballots.
The status of each precinct in the county with respect to the use
or non-use of the voting machines would continue at every election
to be held thereafter, subject to further orders of the Commis-
sioners Court.
Honorable Charles J. Lieck, Jr., Page 4 Opinion No. Ww-1311
Other solutions to the county's voting machines problem
may be found In Subdivision 6 of Art. 7.14, Texas Election Code,
and in the cases of @xar County v. Hatley, 136 Tex. 354, 150
S.W.2d 980 and Bexar County v. Mann, 138 Tex. 99, 157
S.W.2d 134
SUMMARY
The Commissioners Court may not discriminate
between poltical parties in the use of voting ma-
chines.
If the procedure outlined In the opinion is
followed, it will not be necessary to use paper
ballots in all precincts in Bexar County~. Voting
machines may then be used in the more populous
precincts on a non-discriminatory basis.
Yours very truly,
WILL WILSON
Attorney General of Texas
By 6$+2gei!fiXZC~
Assistant Attorney General
REF:jp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
William Hemphill
Jack N. Price
Gordon Zuber
W. E. Allen
REVIEWEDFOR THE ATTORNEYGENERAL
By: Houghton Brownlee, Jr.