Untitled Texas Attorney General Opinion ( 1964 )

AKIWI-IN 1s. TEXAS
July 10, 1964
Honorable B. F. Rardgrave Opinion No. C-281
County Attorney
Anderson County Re: Whether the provisions of
Palestine, Texas Article 7.01, Election
Code, relative to the
furnishing and use of
voting booths in cities
of 10,000 or more inhab-
Dear Sir: itants, are mandatory.
The substance of your request for an opinion on the
above-captioned subject is stated in the following excerpts
therefrom:
"The County Commissioners Court of Anderson County,
Texas, has been requested formally and in writing to
furnish voting booths in connection with the elections
under Article 7.01 of the Texas Election Code. * * *
The population'of Palestine at the last census was
over 13,000. * * *'
"Question: Under Article 7.01 of the Texas Elec-
tion Code, is the provision for voting booths mandatory
or directory in nature?"
Article 7.01 of the Election Code reads a6 follows:
"Voting booths shall be furnished and used at
elections at each votin precinct in towns and cities
of ten thousand (10,0007 inhabitants or more."
The duty of furnishing the supplies necessary for
conducting elections held at the expense of the county isplaced
upon the county election board created by Article 7.07 of the
Election Code, which reads as follows:
"The county judge, county clerk and sheriff shall
constitute a board, a majority of whom may act to pro-
vide the supplies necessary to hold and conduct the
election, all of which shall be delivered to the
presiding judges of the election by the sheriff or
any constable of the county, when not called for and
obtained in person by the precinct judges. Such
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Hon. B. F. Hardgrave, page 2 (c-281)
board shall file with the Commissioners Court
a written report of their action as to supplies
furnished by the county, giving a detailed
statement of the expenses incurred in procuring
such supplies."
Article 7.12 of the Election Code provides:
"All expenses incurred in furnishing the
supplies, ballots, and booths in any general or
special election shall be paid for by the county,
except costs in municipal and school elections.
All accounts for supplies furnished and services
rendered shall first be approved by the Commis-
sioners Court before they are paid by the county."
Article 7.01 of the Election Code provides that voting
booths shall be furnished and used in cities of 10,000 or more
inhabitants. While statutory provisions stating that 6x1act
shall be done are sometimes construed to be discretionary or
directory rather than mandatorv. the ordinary meanina of the
word "shall" is equivalent to %u6t"--it is a mandator term,
requiring compliance. McLaren v. State, 82 Tex.Crim. x49,
199 S.W. 811 (1917 ; Mitchell v. Hancock, 196 S.W. 694, 700
(Tex.Civ.App. 1917 ; zm S.W.2d 182 (Tex.Civ.App.
1957) *
Some provision6 of the election laws are mandatory in
the sense that compliance therewith may be compelled by mandamus
before the time for performance, but are directory in the sense
that an election already held is not rendered void i so facto by
failure to comply. Davis v. Blakeley, 208 S.W.2d 90-h TexTCiv .
App. 1948) and authorities cited therein. This is the construction
which the courts have given to Article 7.01. State ex rel. Paaai
v. Fletcher, 50 S.W.2d 451 (Tex.Civ.App. 1932), held bat the
failure to provide voting booths for the use of the voters did not
render the election void.
In Cause No. 15,982, styled Russell Griffth, Relator
v. Hon. Don Davis, County Judge of Collin County, et al.,
Respondents, the Dallas Court of Civil Appeals had before it an
original mandamus proceeding against the Election Board of Collin
county, seeking to compel the board to furnish voting booths at
all polling places within the City of l&Kinney (which has a
population of more than 10,000) at a special election for United
States Senator to be held on May 27, 1961. In an unreported
opinion rendered May 25, 1961, the Court held as follows:
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- . .
Hon. B. F. Hardgrave, page 3 (c-281)
'* * + [Ij'tis the opinion of the Court that
it is the duty of the Election Board of Collin
County, pursuant to Article 7.01, Election Code
V.A.C.S., to furnish voting booths at all polling
places in the City of McKinney, Texas.
"However, because of the shortness of time
intervening between the date of Relator's applica-
tion and of this order and the date of the election
of May 27, 1961, the Court is not certain that it
would be physically possible for the Election Board
to comply with a writ of mandamus directing the
Board to provide booths for the election of May 27,
1961. In view of this shortness of time, and in
view further of the Board's promise to provide voting
booths for all future elections after May 27, 1961
in the City of McKinney, Texas, the Court has con-
cluded that it would be inequitable to issue the
writ of mandamus for which Relator has prayed.
But for these circumstance6 the application of
Relator would be granted. 'However, because of
the circumstances herein set forth, it is ordered,
adjudged and decreed by the Court that the applica-
tion of Relator be, and the same is hereby denied."
In answer to your question, we hold that it is the
duty of the Election Board of Anderson County to furnish,voting
booths for all polling places within the City of Palestine in
all elections held at the expense of Anderson county. The cost
of the booths i6 to be borne by the county.
SUMMARY
Under Article 7.01 of the Texas Election Code,
it is the duty of the county election board created
by Article 7.11 of the Election Code to furnish
voting booths for all polling places within each
city of 10,000 or more inhabitants which is situated
within the county, for use in elections held at the
expense of the county.
Yours very truly,
WAGGONER CARR
Attorney General
BY 27 %G!J-
Mary . Wall
MKw:sj Assistant
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., -
Hon. B. F. Hardgrave, page 4 (C-281)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
George Black
Frank Booth
Larry Craddock
Robert Smith
APPROVED FOR THE ATTORNEY GENERAL
'BY: StaritonStone
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