Untitled Texas Attorney General Opinion ( 1946 )

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