Untitled Texas Attorney General Opinion ( 1960 )

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EA ORNEY GENERAL
OF ?IrEns
Ausnnr 1,. TEXAS
WLL WILSON
ATTORNEYGENERAL May 2, 1960
Honorable Cecil M. Pruett Opinion NO. ``-831
County Attorney
Hutchinson County Re: Whether refusal by an.
Borger, Texas election judge to de-
liver a ballot in the
Democratic primary to
a person who refuses to
allow the judge to stamp
"Democrat" on his poll
tax receipt, as provided
in Art. 13.01a of the
Election Code, consti-
tutes a violation of Art.
Dear Mr. Pruett: 217 of the Penal Code.
Your opinion request Involves an interpreation of Sub-
section (4)(i) of Article la.Ola of Vernon's Texas Election Code
(the "Party Affiliation Law enacted by the Texas Legislature in
1959), which reads as follows:
"Each voter shall present his poll tax receipt
or exemption certificate, or an affidavit of its loss,
to the election judge on the first time such voter
participates in a primary election and the election
judge shall stamp within the party affiliation space
on the face of said poll tax receipt, exemption, or
affidavit of loss, the words 'Democrat' or 'Republican'
or other party primary vote connotation as the case may
be and such stamped poll tax receipt, exemption, or af-
fidavit of loss shall be the designation of a qualified
member of that party; such qualified member of such party,
having once voted within a party primary shall remain a
qualified member,,ofthat party for the d-crationof the
poll tax period.
You have informed us that various persons in your county
have stated that they were going to vote in the Democratic primary
but would refuse to have their poll tax receipt stamped "Democrat .
In anticipation of this occurrence, you have asked the following
question:
Does refusal of an election judge to deliver a
ballot in the Democratic primary to a person or persons
Honorable Cecil M. Pruett, page 2 (W-831)
who refuse to allow the judge to stamp their poll tax
receipt, exemption certificate, or affidavit of loss
with the word "Democrat", as provided in Article 13.01a
of the Election Code, constitute a violation of Article
217 of the Penal Code?
Article 217 of the Penal Code readsas follows:
"Art. 217.' Refusing to permit voter ,tovote.--Any
judge of any election who shall refuse to receive the
vote of any qualified elector who, when his vote is ob-
jected to shows by his own oath that he is entitled to
vote, or who shall refuse to deliver an official ballot
to one entitled to vote under the law, or who shall wil-
fully refuse to receive a ballot after one entitled to
vote has legally folded and returned same, shall be fined
not to exceed five hundred dollars." (Emphasis supplied.)
In the light of the underscored portion of Article 217, your
question may be restated as follows: Is a person entitled to vote in
a Democratic primary if he refuses to allow the election judge to
stamp "Demccrat" on his receipt or certificate?
Before taking up this question, we should give some atten-
tion to whether Article 217 of the Penal Code applies to primary elec-.
tions. Article 217 is a part of Chapter 4 of Title 6 of the Penal Code.
Various other articles in this chapter refer to "an election or pri-
mary" (Art. 2161, "an election, either primary,,special or general"
(Art. 218), 'any general cr primary election" IArt. 2?2)> while others
use only the term "election" witho~stspecifically mentioning a primary
election. However, any doubt as to applicability of Article 217 to
primary elections is removed by Article 231 of the Penal Code, also
a part of Chapter &,.which provides that the term 'elect,ion"as used
in that chapter means "any election, either general, special, or pri-
mary, held under authority of law within this State, or within any
town, city, district, county, precinct, or any other subdivision with-
in this State for any pcrpcse whatever."
Returning to your question, Article 18.01a cf the Election
Code provides that the voter shall present his poll tax receipt, exemp-
tion certificate, or affidavit of loss, anl that the election judge
shall stamp the party designation on the receipt, certificate or af-
flit. While statutory provisions stating that an act shall be done
are sometimes construed to be discretionary or directory rather than
mandatory, the ordinary meaning of the word "shall" is equivalent to
"must" -- it is a mandatory term, requiring compliance. McLaren v.
State 82 Tex. Crim. 449, 199 S.W; 811 (1917); Brinkley v. State, 32C
S.W. 655 (Tex. Grim. 1959); Mitchell 'v.Ean,cock,lgb S.W. 694, 730
(Tex.Civ.App. 1917); J&n& s !e, 3Ob S.W.2d 182 (Tex.Civ.App. 1957).
Looking to the purposr and intent of Article l?.Cla, we are of the
opinion that these provisions are mandatory. The requirement for
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Honorable Cecil M. Pruett, page 3 (W-831)
stamping of the voter's party affiliation is not only for the purpose
of furnishing him with evidence that he is qualified to participate
in that party's conventions and to hold party offices, but also for
the purpose of enabling other parties to determine that he is not
eligible to participate in their conventions or to hold office in
their party organization. These being mandatory provisions, a person
who refuses to allow the primary election judge to stamp the party
designation on his receipt, certificate, or affidavit is not entitled
to vote in that primary, and the election judge therefore would not
violate Article 217 by refusing to deliver a ballot to him. Accordingly,
your question is answered in the negative.
SUMMARY
A person offering to vote in the Democratic pri-
mary who refuses to allow the election judge to stamp
"Democrat" in the party affiliation space on his poll
tax receipt, exemption certificate, or affidavit of
loss, is not entitled to vote in that election, and
refusal of the election judge to deliver a ballot to
him is not a vlolatlon of Article 217 of the Penal Code.
Yours very truly,
WILL WILSON
Attorney General of Texas
$c tzLka.&
BY
Mary K. Wall
Assistant
MKW:bh
APPROVED:
OPINION COMMITTEE
W.V. Geppert, Chairman
Houghton Brownlee, Jr.
J.C. Davis, Jr.
Riley Eugene Fletcher
J. Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Leonard Passmore